IN THE HIGH COURT OF MALAWI
PRNCIPAL
REGISTRY
CIVIL
CAUSE NO. 2847 OF 2002
BETWEEN:
DUNCAN CHONGO …………………………………………PLAINTIFF
AND
DE CARS BUS SERVICE ……………………………1ST
DEFENDANT
NATIONAL INSURANCE CO. LTD …………………2ND
DEFENDANT
Phiri,
Counsel for the Plaintiff
This is
this court’s order on assessment of damages herein. This order is made pursuant to a default judgment dated 8th
September, 2003 in favour of the plaintiff.
The judgment was entered in favour of the plaintiff for damages for the
personal injuries suffered by the plaintiff in an accident in which the
plaintiff negligently hit by the defendant’s vehicle whilst he was cycling
along the Ntcheu-Balaka road. The
notice of hearing of this assessment was duly served on the defendant who chose
not to appear at the hearing. That left
the plaintiff’s evidence totally unchallenged.
In the
accident herein, the plaintiff suffered a fracture of the right humerus, the
right upper arm. That arm was cast in a
plaster of Paris. After the recovery of
the fracture, the plaintiff still experiences some pain. He can not use his right arm as he used to
before the accident herein.
Clearly
the plaintiff is entitled to damages for the pain and suffering occasioned by
the fracture as well as the treatment thereof.
The plaintiff also lost enjoyment of the use of his right arm hence he
has lost enjoyment of related amenities of life like manual work. Such damages are aimed at compensating the plaintiff
as nearly as possible as money can do see Cassel and Company v Broome [1972] A. C. 1027. And such damages are incapable of
quantification in money terms with mathematical precision and so this court
seeks guidance on the appropriate level of awards from decided cases of similar
nature. See Wright v British
Railways Board [1983] A.C. 773.
This court has considered the plaintiff’s fracture which was serious
took 4 months to heal. This court has
also considered decided cases of comparable nature to the instant one. One such case is that of Chirwa v
Juma and Prime Insurance Company Ltd Civil cause Number 3794 of 2002 in which a plaintiff who suffered
a fractured right arm that healed well without post treatment complications was
awarded K65,000.00 damages for pain and suffering in April, 2003. Of course our currency has lost some value
since then. This court has considered
all the circumstances herein and awards the plaintiff herein K180,000.00
damages for pain and suffering and K65,000.00 damages for loss of amenities of
life.
Costs are
for the plaintiff.
Made at
Blantyre in Chambers this June,
2004.
M A Tembo