IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 1748 OF 2003
BETWEEN:
LIDIA MCHEKA
………………………………………...…..PLAINTIFF
AND
STEVEN ROBERT t/a NTHAWI YA
MAPETO
TRANSPORT ……………………………………………DEFENDANT
CORAM: TEMBO,ASSISTANT REGISTRAR
Movette, Counsel for the Plaintiff
This is this court’s order
on assessment of damages herein for personal injuries suffered by the plaintiff
in an accident caused by the defendants’ negligence. The assessment is done pursuant to a default judgment entered in
favour of the plaintiff dated 16th April 2004. The notice of hearing of this assessment was
duly served on the defendant. The
defendant did not attend the hearing leaving the plaintiffs evidence totally
uncontroverted.
The defendant negligently
drove his truck on 9th December 2001 along the Chikwawa road when he
caused the accident herein in which the plaintiff sustained several
injuries. The plaintiff suffered a
fractured around her left wrist and a fracture of the bones on her left
foot. These fractured bones were cast
in a plaster of Paris for 2 months.
The plaintiff also suffered a deep cut wound on her forehead that
exposed part of the skull. That took
about 2 years to heal. She now feels
better but water comes out the affected area of the forehead whenever it gets
cold. Since the accident herein the
plaintiff can no longer carry out farming activities like hoeing as she used to
do before the accident herein. The
plaintiffs’ left forearm has also been shortened by a centimeter. The plaintiffs’ injuries herein were
serious. She is clearly entitled to
damages claimed viz, for pain and suffering
and loss of amenities of life. These damages are aimed at compensating the
plaintiff for her suffering as nearly as possible as money can do. See Cassel and Company v Broome [1972]
A.C. 1027.
Such damages are incapable
of quantification in money terms with mathematical precision. And so courts refer to decided cases of
similar nature for guidance on the level of awards. This ensures some degree of general consistency in civil justice
in cases of similar nature. See Wright
v British Railways Board [1983] A.C. 773.
This court notes the
seriousness of the injuries suffered by the plaintiff and the impact of those
injuries on her enjoyment of certain aspects of life like farming. This court has also sought guidance from
awards made in cases of similar nature to the instant one. One such case being that of Chimwala v Issa Civil Cause Number
1590 of 2000 in which a
plaintiff suffered a fractured forearm and multiple bruises was awarded
K80,000.00 damages for pain and suffering and loss of amenities of life in November, 2002. Another case referred to by this court is
that of Chirwa v Juma and another Civil Cause Number 3790 of 2002.
In that case a plaintiff who has suffered a fractured arm and dislocated ankle
was awarded K65,000.00 damages for pain
and suffering and loss of amenities of life in April, 2003. This court also considered the case of Mulinde
v Stagecoach Limtied Civil Cause Number 1816 of 1999 in which a
plaintiff who suffered cut wounds in the face and also cuts on his fingers was
awarded K20,000.00 damages for pain and suffering and loss of amenities of life in October, 1999.
This court is aware that the
value of the kwacha has since depreciated in value since the awards
referred to above by this court for
guidance.
Having considered the
severity of the plaintiffs’ injuries herein this court awards her the sum of
K350,000.00 damages for pain an suffering, and loss of amenities of life and
deformity. This court further makes an
award on loss of earning capacity of K50,000.00 the plaintiff’s earning
capacity having clearly been diminished by
her injuries herein.
Made in Chambers at Blantyre this
…………June, 2004.
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