IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 741 OF 2001
BETWEEN:
AND
M. MAPANDO………….…………………………………..DEFENDANT
This is
the court’s order on assessment of damages pursuant to a default judgment
entered in favour of the plaintiff on 30th April, 2001 for damages
for personal injuries sustained by the plaintiff in an accident caused by the
negligence of the defendants agent. The
accident took place on 8th August, 1998. 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 sustained several serious injuries. She lost all
her upper teeth and 6 lower teeth. She also suffered cuts and a fracture on the
upper mandible leaving a permanent scar on the upper lip. The plaintiff must
have underwent a lot of pain as a result of her injuries and from the treatment
thereof. Further the plaintiff suffered chronic back pain as a result of the
accident. The plaintiff can now not eat hard foodstuffs. She can also not
engage in farming as before due to backaches.
The
plaintiff’s teeth had to be replaced by artificial teeth. She paid K17,600.00
for these artificial teeth.
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 court 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 the
overzealous desire to maintain consistency in awards.
This court
has considered the plaintiffs injuries which are serious. The plaintiff must
have undergone a lot of pain. She also lost use of amenities of life like
eating food of her choice and farming.
This court has also considered recent awards made in the High Court in
cases of similar nature to the instant one.
One such case being that of Kadzola v
Malawi Union of Savings and Credit Cooperatives Limited Civil Cause Number
3715 of 2000. In that particular case a plaintiff who had suffered fractured
mandibles and whose teeth could no longer withstand hard foodstuffs was awarded
K40,000.00 damages for loss of amenities of life in March,2002.
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. And further that the
injuries sustained in the instant case are more serious than the ones suffered
in the case referred to above.
In the
circumstances of the present case this court awards the plaintiff the sum of
K250,000.00 damages for pain and suffering ,loss of amenities of life and
disfigurement.
The
plaintiff has spent K17,600.00 on artificial teeth. That is an expense directly
incurred as a result of the accident herein. The sum of K17,600.00 is therefore
awarded to the plaintiff.
Costs of
this action are for the plaintiff who has wholly succeeded herein.
Made in
Chambers at Blantyre this May,
2004.