IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL
CAUSE NO. 756 OF 2003
BETWEEN:
AND
MALAWI SOCIAL ACTION FUND ………………………………….DEFENDANT
Tukula,
Counsel for the Plaintiff
This is this court’s order on assessment of damages herein pursuant to a default judgment entered in favour of the plaintiff for damages for pain and suffering, loss of amenities of life, earning capacity and medical expenses.
The
notice of hearing of this assessment was served on the defendant who never
appeared at the hearing of this assessment.
That left the plaintiff’s testimony totally uncontroverted. On 15th January, 2000 the
plaintiff was injured whilst lifting some concrete pipes whilst in the
defendant’s employment. The concrete
pipe the plaintiff was lifting with his fellow employees of the defendant was
left to slip by his co-workers. When
the concrete pipe fell it crashed the
plaintiff’s right hand severely
damaging his index finger. The damaged
part of the index finger was amputated as a result to avoid bone
infection. The remainder was
bandaged. The plaintiff’s right arm
gets swollen when he engages it in heavy work.
The right finger is still constantly painful.
The
plaintiff stated that he was charged K6,000.00 for the medical treatment at
Mlambe hospital and that he has only managed to pay K1,725.00. There is however no evidence to support the
fact that indeed K6,000.00 is what the plaintiff was charged. The plaintiff has only proved payment of the
K1,725.00 as medical expenses.
The
plaintiff herein used to work properly before the accident earning a sum of
K600.00 per month. But after the
accident his earning capacity has been impaired. The general prognosis on the plaintiff’s injury is poor since
there is constant pain and bleeding. He
therefore can no longer earn the K600.00 per month.
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 as
nearly as possible as money can do. See
Livingstone v. Rowyanrds Coal Company (1880) 5 app. Cas.
25. On the monetary loss the plaintiff
is entitled to an award of the sum he spent on medical expenses of K1,725.00
which has been proved herein. The sum
of K1,725.00 is therefore awarded to
the plaintiff.
The
plaintiff has also suffered loss of earning capacity. He can no longer earn the K600.00 as he used to before the
accident herein. There is no evidence
that he has found other employment. He
is basically a manual worker and with the impairment of his use of the right
hand he can not readily do manual work.
In
calculating the loss of earning capacity the courts have evolved a certain
method. The amount of loss of earning
is calculated by taking the figure of the plaintiff’s present annual earnings
less the amount, if any, which he can now earn annually, and multiplying this
figure by a figure which, while based upon the number of years during which the
loss of earning power will last, is discounted so as to allow for the fact that
a lump sum will be given now instead of periodic payments over years. The latter figure has come to be known as
the multiplier and the former figure, the multiplicand. See Mitchell v Mulholland (No. 2) [1972] 1 Q.B. 65. Further adjustment however has to be made to
the multiplicand and multiplier on account of other factors like inflation the
so called contingencies of life and
taxation.
The
starting point for calculating the multiplicand has for long been the amount
plaintiff earned before his injury.
However, Cookson v Knowles [1978] 2 W.L.R. 978
would seem to confirm now that through stimulus of inflationary conditions, the
starting point is what the plaintiff would have been earning at the date of
trial, or assessment herein if not for
the injury. From that is discounted
whatever the plaintiff is capable to earn in the future. If he can not earn anything nothing falls to
be deducted. For the multiplicand the starting point in calculating it is the
number of years that it is anticipated the plaintiff’s disability will
last. See Lim Poh Choo v
Camden and Isling Area Health Authority [1979] 3 W.L.R 44. That
calculation falls to made from the date of trial and requires medical
testimony. It is unclear how long the
plaintiff’s incapacity will last herein.
But the medical opinion is that another surgical operation is necessary
to encounter the constant pain and bleeding in the plaintiff’s finger. This court notes that already since the time
of the accident in January,2000 the plaintiff has not been able to earn the
K600.00 per month. So far the pain in
the plaintiff’s finger has not improved and so the prognosis is not good. Already for 3 years the plaintiff has been
without his earning power. The
plaintiff shall be given an allowance of a year within which he shall have to
undergo a further surgical operation to encounter the infection indicated by
constant pain and bleeding of his finger.
And so this court adopts a multiplier of 4. As the plaintiff has been earning nothing this court shall still
use the K600.00 as the multiplicands it being what the plaintiff used to earn
before the accident herein. That is so
because there is no evidence of what he would have been earning now. So the multiplicand shall be the monthly
wage of K600.00 x 12 months which gives K7,200.00. The multiplicand of K7,200.00 when 7multiplied by the multiplier of 4 years gives the sum of K28,800.00. The sum of K28,800.00 is therefore awarded
to the plaintiff as damages for loss of earning capacity.
Now,
turning to the plaintiff’s non-monetary loss this court notes that the same is
not quantifiable in monetary terms with mathematical precision. As a result courts use experience and awards
made by courts in cases of broadly
similar nature as a guide in arriving at the appropriate award. That approach
ensures some degree of general uniformity in 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 plaintiff herein suffered a lot of pain on the finger
which was later partially amputated in treatment. He also continues to suffer pain. He has also lost some enjoyment use of his right hand. He is therefore entitled to damages for pain
and suffering and loss of amenities of life.
This court has considered awards in cases in which the plaintiffs
suffered injuries similar to those suffered herein. In Nazigamba v Plastic Industries (MW)
Limited civil cause number 479 of 2000 the plaintiff, a machine operator, got
injured in the right hand completely losing 3 fingers. He was hospitalized for 3 months and found
it difficult to eat, dress himself or use tools like a hoe. On 29th November,2001 he was
awarded K30,000.00 for pain and suffering and K40,000.00 for loss of amenities
of life of course the value of our currency has depreciated since that award
was made. But it is observed that the injuries in the above case
were rather more serious than those suffered by the plaintiff herein. In the circumstances of the present case
this court awards the plaintiff herein K50,000.00 as damages for pain and
suffering and loss of amenities of
life. Costs of this action are for the
plaintiff.
Made in
Chambers at Blantyre this ____ September,2003