IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 2668 OF 2002
BETWEEN:
YUNUSU MDEZA ……………………………….PLAINTIFF
AND
PRICE WORTH WHOLESALERS ……………DEFENDANT
On 29th
October, 2002 the plaintiff obtained a default judgement against the defendant
for general damages for personal
injuries pain and suffering and loss of amenities. This is now an order on a notice of appointment for assessment of
damages.
The
defendant did not attend the hearing of the evidence on the assessment despite
being served with the requisite notice.
The court therefore proceeded to hear the evidence for assessment of
damages in the absence of the defendants.
The
plaintiff’s evidence which is undisputed and unchallenged was that while
working as a casual labourer in the warehouse of the defendant he was involved
in an accident on 11th January, 2002 from which he sustained
injuries. He testified that on the material
day he was loading bags of salt into vehicles.
There came an Iveko Truck and he was one of those passing on the bags of
salt from a stack to his colleagues on the truck. The stack of bags behind him fell on him and he was buried under
the stack until his colleague came to his rescue and pulled him out. He sustained serious injuries. He had open dislocation metacarpal pharynges
joint of left index finger, a sprain in the metacarpal phalange joint of left
thumb with a number of metacarpal of thumbs (Exhibit ‘YM1’ medical report
refers). The plaintiff further informed
the court that he can no longer use two fingers and infact the left hand due to
the injuries. He was admitted and
operated on about two times. He still
has general body pains. The only
assistance he got from his employer, given at different times, totaled K1,800
and was later informed that he should stop going to the defendants premises.
In the
matter at hand the court should determine an appropriate award of damages to
compensate the plaintiff. The damages
must in monetary terms be no more and no less than the plaintiffs actual
loss. M Livingstone vs.
Rayyards Coal Company (1880) 5 App. Cas 25 at p. 39 Lord Blackburn
formulated the principle as follows:
“When any injury is to be compensated
by damages, in setting the sum of money to be given for …. Damages you should
as nearly as possible, get at that sum of money which will put the party who
has been injured or has suffered, in the same possible … he would have been in
if he had not sustained the wrong for which he is now getting his compensation
…….”
It is
prudent therefore for the court to in assessing damages payable, to be guided
by decided cases of a comparable nature.
Nevertheless the court must be mindful that no two cases are similar as
each case is peculiar to itself. Lord
Morris in West v. Shephand (1964) Ac 326 at paragraph 346 stated the position as follows:
“………. By common assent awards must
be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that as far as possible
comparable injuries should be compensated by comparable awards. When all this is said, it still must be that
the amounts which are awarded are to a considerable extent conventional” Actual
compensation in personal injury case is therefore impossible.
The plaintiff herein suffered serious injuries ‘YM1’, the medical report put the rate of his incapacity at 45%. The medical report further states that this incapacity is regarded as loss of the whole hand and there is permanent disability of the hand.
In the
case of J E Chintuli vs. Prime Insurance Company. Civil
Cause No. 1490 of 1997 the plaintiff in 1998 was awarded the sum of K80,000 for
pain and suffering and loss of amenities for life. The rate of incapacity was put at 60%. In the case of Tonald Kaoloka vs. The Attorney General Civil
Cause No. 1279 of 1998 the plaintiff whose rate of incapacity was 35% was
awarded K35,000 for pain and suffering and loss of amenities of life.
Upon
careful consideration of the circumstances of this case, and in the light of
decided cases of comparable nature and the devaluation of our currency in
recent times, I award the plaintiff K75,000 for pain and suffering and loss of
amenities of life. The plaintiff is
also awarded costs of this action to be taxed if not agreed.
I have not
considered an award of damages for loss of earning capacity as the default
judgement entered herein did not cover that aspect.
MADE
in Chambers this ………..day of June, 2003 at Blantyre