IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 2152 OF 2002
BETWEEN:
HENRY KAMWANA
..2ND
PLAINTIFF
LEONARD NGUSENGWA
3RD
PLAINTIFF
AND
SHIRE HIGHLANDS HOTEL
..DEFENDANT
This is
the courts order on assessment of damages pursuant to a default judgment in
favour of the plaintiffs herein for damages for pain and suffering, loss of
amenities of life and loss of earning capacity. The judgment is dated 12th November, 2002. The notice of hearing of assessment of
damages herein was duly served on the defendant. But the defendant did not make an appearance on the date of
hearing of this assessment. That left
the plaintiffs evidence totally uncontroverted.
Both
plaintiffs herein got involved in an accident on 4th July, 2001
which was caused by the negligence of an agent of the 2nd
defendant. Both plaintiffs sustained
injuries.
The 1st
plaintiff sustained a dislocated wrist joint and a cut wound on his hip. He suffered a further cut on his right
leg. The 1st plaintiff was
treated as an out-patient at Queens Central Hospital. The 1st plaintiff therefore suffered pain as a result
of her injuries.
The 1st
plaintiffs can not use his right hand as before the accident herein as it has
since become weaker. The wrist is still
painful. The 1st plaintiff
used K2,000.00 and K350.00 to pay for the police report and medical report
respectively. A further K700.00 was
spent by the 1st plaintiff on transportation. The 1st plaintiff also uses
K1,200.00 per month on a pain killer known as endorcid.
With
respect to the 2nd plaintiff he sustained a swollen right wrist
joint which, sometimes, is painful. And
the 2nd plaintiff can not have using his right hand. The 2nd plaintiff spent K2,000.00
on a police report, K350.00 on a medical report and K700.00 on transport to
Balaka where he obtained the above reports.
This court
notes that the law of tort avails the remedy of damages to a person injured by
the negligence of another so as to compensate the injured party. See Livingstone v. Rawyards Coal
Company (1880) 5 A.C 25.
The
present claim relates to loss of non-monetary nature. It is not possible to quantify such loss in monetary terms with
mathematical precision. So the courts
use decided cases of a comparable nature as a guide in arriving at the monetary
compensation appropriate to a particular case.
That ensures that some degree of uniformity and general consistency of
civil justice in cases of a broadly similar nature. See Wright v. British Railways Board (1983)
2 A.C 773.
This court
notes that the 1st plaintiff and the 2nd plaintiff is
each entitled to damages for pain and suffering and loss of amenities of life
suffered herein. But the court does not
find any evidence supporting the claim for loss of earning capacity and both
plaintiffs shall not be awarded damages under that head.
This court
has considered the injuries suffered by each plaintiff herein. This court has also considered recent cases
of a comparable nature to the instant one and the awards made therein. One such case considered by this court is
that of Limited v. Bakelines Limited Civil cause Number 2279 of 2001 in which the
plaintiff suffered cuts to his hand and head and also internal head injuries as
a result of a violent fall. The
plaintiff in that case was awarded K65,000.00 for pain and suffering and
K25,000.00 for loss of amenities of life on 1st November, 2002.
In the
premises obtaining in the present case this court awards the 1st
plaintiff K45,000.00 as damages for pain and suffering and loss of amenities of
life and for past and future medical expenses.
The expenses incurred by the 1st plaintiff for transport,
medical report police report and also awarded to the 1st plaintiff
in the sum of K3,050.00.
This court
awards the 2nd plaintiff the sum of K20,000.00 as damages for pain
and suffering and loss of amenities of life.
A further K3,050.00 is awarded to the 2nd plaintiff for
expenses of obtaining the medical report and police report plus transport from
Blantyre to Balaka where the reports were obtained.
Costs of
this action are for the plaintiffs.
Made in
Chambers at Blantyre this
August, 2003.