IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 2199 OF 2003
BETWEEN:
AND
T KAOMBA t/a KAOMBA
INVESTMENT………….…………………………………..DEFENDANT
This is
the court’s order on assessment of damages pursuant to a default judgment
entered in favour of the plaintiff on 28th September,2003, for damages for personal injuries sustained by
the plaintiff in an accident caused by the negligence of the defendant’s
agent. The accident took place on 2nd
March,2001. The plaintiff duly served the notice of hearing of this assessment
on the defendant who did not appear at the hearing of the assessment. That left
the plaintiff’s evidence unchallenged.
In the
accident herein the plaintiff lost her consciousness and only regained it after
several hours when she realized she was at Kasungu District Hospital. In the
accident herein the plaintiff sustained several injuries as a result of the
minibus passenger seats crashing on her. She suffered a cut wound on the right
elbow and scratches on the right hand which have healed leaving scars. She
further suffered a cut on her nose from shattered glass. Apart from these injuries the plaintiff also
suffered fractures on both legs. She suffered a compound fracture of the right
tibia and fibula and a closed fracture of the left tibia and fibula.
Depressions are visible where the plaintiff’s legs were crashed. As a result of the accident herein the
plaintiff was admitted to Kasungu Hospital and later Mzuzu Central Hospital for
a period of slightly over 3 months. The
plaintiff has been experiencing problems walking long distances, she can no longer
walk such distances. The plaintiff alleged that she can no longer engage in her
tomato selling business in which she used to make weekly profits of K3,000.00.
That allegation on specific profit alleged was not substantiated but the fact
remains that she was engaging in the business.
She is since capable of engaging in business as per her medical
report. She therefore lost earning
capacity only during the time she was in hospital and shortly thereafter as she
was recurperating.
The
plaintiff also spent K2,000.00 on a police report on her accident. The
plaintiff nevertheless did not substantiate her claim to medical and transport
expenses.
This court
wishes to mention that the plaintiff herein simply pleaded that she was
claiming damages without specifying what heads of general damages she was
seeking. This court having heard the evidence has formed the view that for
damages the plaintiff was seeking general damages for pain and suffering, loss
of amenities of life and loss of earning capacity. So counsel is reminded to
break down such heads of general damages to ease the duty of this court as well
in assessing damages.
The
plaintiff’s loss herein is both monetory and non-monetary in nature. Namely
non-monetory loss for the personal injuries and monetory loss for the actual
money spent in relation to her injuries.
The
plaintiff is entitled to damages having suffered personal injuries due to the
defendant’s negligence. See Cassel
and Company v. Broome (1972) A. C. 1027. The
damages are aimed at compensating the plaintiff for her injuries as nearly as
possible as money can do. See Livingstone
v. Rawyards Coal Company (1880) AC 25.
It is not
possible to quantify the non-monetory loss in monetary terms with mathematical
precision. So this courts draws
guidance from decided cases of a comparable nature to arrive at the appropriate
compensation due to the plaintiff. That
also ensures some degree of general consistency and uniformity in civil justice
in cases of a broadly similar nature.
See Wright v. British Railways Board (1983) 2 A.C 773. This court though considers
each case on its own merits to avoid sacrificing justice at the instance of the
overzealous desire to maintain consistency in awards. See Heil v Rankin
[2000] 2 W.L.R. 1173.
This court
has considered the plaintiff’s injuries. Counsel for the plaintiff was ordered
to file submissions on the quantum of damages but did not do so and this court
shall proceed to assess the same without counsel’s submissions. This court has also considered awards made
in cases in which the plaintiffs suffered injuries similar to those suffered by
the plaintiff herein.
One such
case is that of Mbaso v Attorney
General civil cause number 769 of
2001. In that particular case the plaintiff suffered a fractured leg and head
injuries. As a result he could only walk with crutches. He was in hospital for
4 months during which time his leg was suspended and also cast in a plaster of
paris. He also could as a result not engage in his produce business. On 5th
July,2001 the plaintiff in that case was awarded K80,000.00 for his pain and
suffering, K60,000.00 for loss of amenities of life and K50,00.00 for loss of
earning capacity.
This court
does not though lose sight of the fact that the Kwacha has since depreciated in
value since the awards this court has referred to. This court also considers
the fact that the plaintiff in the instant case has substantively healed of her
fractures as opposed to the plaintiff in the case cited above.
In the
circumstances of the present case this court awards the plaintiff the sum of
K120,000.00 for pain and suffering, K100,000.00 for loss of amenities of life
and K80,000.00 for loss of earning capacity.
The sum of
K2,000.00 spent by the plaintiff on the police report is also awarded to the
plaintiff.
Costs of
this action are for the plaintiff who has wholly succeeded herein.
Made in
Chambers at Blantyre this 18th May,
2004.