IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
BETWEEN:
THOMAS LAPUKENI ………………………………………………………………………PLAINTIFF
AND
MIKE APPEL & GATTO LIMITED
…………………………………………………DEFENDANT
Chirwa, Counsel for the Plaintiff
Osman,
Counsel for the Defendant
The plaintiff commenced this action against the
defendant claiming damages for personal injury, pain and suffering; loss of
earning capacity, loss of amenities and costs arising out of an accident which
occurred on the 15th day of September, 1995 at the defendants
premises. The plaintiff obtained a
judgment in default of notice of intention to defend on the 18th day
of September, 1996 and this assessment arises there from. This is therefore an order for assessment.
The defendants were duly served with a notice of
appointment to asses damages. There was
one witness, the plaintiff himself who testified during the assessment.
It was the plaintiffs testimony that in 1995 he was
working at the defendants company as a cleaner and that he left after being hit
by a car. He was taken to Queen
Elizabeth Central Hospital where he was treated. He had lost consciousness and he could not remember how long he
stayed in hospital. As proof of medical
treatment (Exhibit TL 1). The witness
further tendered Exhibit TL 2 as proof of the effects of the injuries.
In cross examination by Mr A.R. Osman, counsel for
the defendant the plaintiff testified
that he was attached to Valbar Honda Centre and Mike Appel and Gatto and that
he started work on 17th February, 1994 and he was getting K150.00
per month. That while working at Mike
Appel & Gatto he was hit by a vehicle, which was being driven by one Mr
Mapanje who was a mechanic. He further
testified that since his dismissal he has been going to Mr Hassan the Workshop
Manager for financial assistance but he would only give him K20.00 or K10.00. He also informed the court under cross
examination that he was hit by the car in the workshop when the said Mapanje
reversed the car with speed and he fell down and hit his head against
the concrete and the car ran over his leg.
He further testified that the defendant never gave him any
compensation. He contended that the accident
affected his brain as he was just talking nonsense.
As already noted herein there is a default judgment
entered in favour of the plaintiff.
What this court is being called upon therefore is to asses damages
payable to the plaintiff as a result or consequence of the injuries he
sustained arising from the accident. As
to the measure of damages the general rule is contained in the speech of
Blackman in Livingstone –v- Rawyards Coal Company [1880] 5 App.
Cas 25 at page 39 where the measure of damages for compensation
purposes was defined as follows:
“that
sum of money which will put the party who has been
Injured or who has suffered, in the same
position as he
Would
have been in if he had not sustained the wrong for
Which he is now getting his compensation
or reparation.”
I am mindful that it is a very difficult exercise to
try to come up with compensation which will totally compensate the plaintiff
with money for the injuries sustained and for the incapacity occasioned by the
fault and negligence of the defendant – Livingstone –v- Rawyards Coal
Company [1850] 5 App Cas 25; Ruo
Tea Estate and Others –v- Owen Mwalwanda, MSCA Appeal No. 25 of 2000.
Nevertheless courts have strived to award plaintiffs
damages for injuries suffered, which represent fair and adequate
compensation. In the matter at hand the
plaintiff was injured in the course of his employment by an agent or servant of
the defendant. He suffered head and
neck injuries, lost consciousness for five days, now has short term memory loss
and sees flicker of light with mental illness and has suffered 70% incapacity (Ref.
Exhibit TL 1). The said Exhibit
TL 1 further states that the plaintiffs’ brain shook and he would have lapses
of memories, constant headaches and so forth.
As already indicated herein the plaintiffs’
incapacity is at 70% due to the head injuries he suffered. There have been several cases with
different awards of damages for pain and suffering and loss of amenities of
life for injuries similar to those suffered by the plaintiff. In the case of Dereck Namagonya –v- P Saidi t/a Dusiya Minibus
Civil Cause No. 1753 of 1997 (unreported) the plaintiff was
awarded K60,000.00 for pain and
suffering and loss of amenities of life.
The award was made in December 1997.
Mr Godfrey Litete –v- Yassen Sherry, Civil Cause No. 796 of
1996 (unreported) the plaintiff was awarded K160,000.00 for pain and
suffering.
In the present matter the plaintiff suffered head
injuries which has led to lapses in memory, lost consciousness for 5 days, his
brain shook and there is some mental illness.
The awards of comparable cases which I have referred to were awarded
some time back and the kwacha has since fallen in value several times. The plaintiff continues to suffer as a
result of that accident. I therefore
award the plaintiff the sum of K200,000.00 for pain and suffering and loss of
amenities.
As for loss of earning capacity it is always
difficult to determine the actual future loss.
The courts have nevertheless used what is called the multiplicand and
multiplier formula in order to arrive at the award. The multiplicand is a figure representing the plaintiffs’ monthly
earnings. The multiplier is an
estimated number of years the plaintiff would have still been working before
the retirement age. In the matter at
hand the plaintiff was earning K460.00 per month which comes to K5,520.00 per
annum. This is therefore the
multiplicand. What then
would be a suitable multiplier? The
plaintiff was aged 25 years at the time of the accident. He would therefore have worked for 30 more
years before his retirement at the age of 55 years, which is a normal
retirement age in this country. This
figure of 30 years must be discounted for to allow some other factors, that is
the inevitable contingencies and uncertainties of human life and working
capacity. Quite apart from the
accident herein the plaintiff might have died or have been incapacitated by
some other accident or by illness at any time during the said 30 years. Furthermore the plaintiff’s earnings which
he is assumed to have lost would have been spread over his whole future working
life whereas damages will be paid to him as a lump sum. Some discount is therefore required for
early payment (Refer Laston
Tsamwa –v- Impresia inc. Fortunato S.P.A. Civil Cause No. 370 of 1998). In Comwell
–v- Wilson [1982] A.C. 27 The House of Lords accepted
a multiplier of 16 for a boy of 15 in one case and a young man of 22 in the
other. In the same premise, I reduce
the figure of 30 and select the figure of 25 as a suitable multiplier. When I apply it to the multiplicand I came
to K138,000.00 as loss of earnings capacity and I so award it to the plaintiff.
Counsel for the plaintiff has further submitted that
this is a matter where despite awarding damages on the other heads the court
should also award damages for future care.
I have carefully looked at the injuries suffered by the plaintiff and it
is clear that the plaintiff will always rely on others, that is his relations
in his future life. He will always rely
on services rendered by others to him.
In the cases of Cunningham –v- Harison [1973] QB 943; Donelly
–v- Joyce [1974] QDD 544 the court of appeal affirmed the position
that indeed damages may be awarded for future care.’ In our own Local case of Samson Ngwira –v- Felix
Malisero t/a Contract Dulles, Civil Cause No. 402 of 1993 the court
awarded the plaintiff K50,000.00 for future care. In the present case considering the devaluation of our currency
in recent times I award the plaintiff the sum of K100,000.00 for future care.
The total award therefore comes to K438,000.00. The defendant is further condemned to cost
of this action.
MADE IN CHAMBERS
this 7th
day of April 2004 at Blantyre.
S. A. Kalembera