IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 1627 OF 2003
BETWEEN:
ANDREW MWACHUNDA ………………………………………………PLAINTIFF
AND
THE ATTORNEY GENERAL ………………………………………….DEFENDANT
This
is this court’s order on assessment of damages for personal injuries done
pursuant to a default judgment entered in favor of the plaintiff dated 11th
August, 2003.
The
notice of hearing was duly served on the defendant. The defendant did not appear at the hearing leaving the
plaintiff’s evidence totally uncontroverted.
The
plaintiff herein had been shot by a member of the Malawi Police Service on 27th
May, 2002. The gun shot entered the
plaintiff’s body in the back. As a
result he sustained injury in the form of a gun shot wound as well as injury to
his lungs that necessitated internal surgery.
The plaintiff was admitted at Mzuzu Central Hospital for treatment. Although the plaintiff treated he still
experiences neck pains. The plaintiff
must have suffered a lot of pain from the gunshot wound as well as from the
treatment thereof. No doubt herein the
plaintiff is entitled to damages whose objective is to put him in a position he
would have been had the tort herein not been committed. See Namwiyo v. Semu and Others
[1993] 16(1) MLR 369.
Such
damages are conventional incapable of quantification in monetary terms with
mathematical precision. As a result
courts use decided cases of comparable nature as a guide in arriving at the
appropriate awards. This court does not
though lose sight of the fact that each particular case ought to be considered
on its own merits. See Chidule
v. Medi MSCA Civil Appeal
Case No. 12 of 1993. The plaintiff
herein claims damages for assault, pain and suffering and loss of amenities of
life. This court notes that the measure
of damages for assault occasioning bodily injury is done using the same
principles governing the assessment of damages in personal injuries cases. See
This
court has fully considered the plaintiff’s submission in this assessment. This court though wishes to point out that
the submission for an award of exemplary damages herein is not covered by the
plaintiff’s pleadings and so this court can not entertain the same. The plaintiff’s submissions also indicate
that he is unable to support a family of two wife’s and 13 children. That is not in the plaintiff’s evidence and
this court shall disregard the same in arriving at the final award.
This
court has considered the case cited by the plaintiff of Kagona v
Attorney General Civil
cause Number 918 of 1998 in which a plaintiff who had been shot in the chest
area and who could not do heavy work was awarded K60,000.00 for pain and
suffering and loss of amenities of life K20,000.00 for loss earning
capacity. This court has also
considered the other cases cited by the plaintiff’s counsel and the fact of
fluctuation in the value of the Kwacha since those awards were made.
This
court in the circumstances awards the plaintiff the sum of K200,000.00 as
damages for pain and suffering and a further sum of K50,000.00 for loss of
amenities of life.
On
the question of damages for loss of earning capacity this court notes the
question indeed turns on the nature of injuries suffered by a plaintiff, his
qualifications, professional or otherwise the labour market. And that the risk of being at a disadvantage
of not getting a new job must be substantial to subject the plaintiff to it materializing before the end of his life. See Tembo v. City of Blantyre and
NICO Civil cause No. 1325
of 1995. The plaintiff is a manual
worker. Due to the weakening of his
body manual work is not easily executed by him. He may therefore be said to have lost some capacity to earn a
living through manual work. He has
therefore lost earning capacity. This
court awards the plaintiff a sum of K70,000.00 damages for loss of earning
capacity.
Costs
are for the plaintiff.
Made
in Chambers at Blantyre this May,
2004.