IN THE HIGH COURT OF MALAWI
MZUZU REGISTRY
CIVIL
CAUSE NO. 66 OF 2002
(ANNE & BEATRICE NJIKHO
DECEASED)…………………………PLAINTIFF
AND
SHIRE BUS LINES……………………………………………………….DEFENDANT
Davie
Lameck, Counsel for the Plaintiff
This
matter comes before this court for assessment of damages following a default
judgement that was entered in the plaintiff’s favour on the 10th
June 2002.
The plaintiff’s claim is for damages for personal injury and loss of dependency due to the defendant’s negligence. Hearing of the assessment of damages proceeded in the defendant’s absence as there was indication that the defendant had been duly served with a notice of the hearing and he never appeared in person nor gave any explanation for his failure to attend the proceedings. Consequently, the plaintiff’s witnesses’ testimony is uncontested.
The
plaintiff herself was the first witness.
She told the court that on 27th July 2001 she had come to
Mzuzu with her two daughters to see her uncle who was admitted in
hospital. She had come from her village
in Mzimba. In the evening she got on
the defendant’s night
compost
bus with her two daughters. The elder
daughter was Beatrice Njikho, she was seven years old and in standard one. The younger one was in nursery. When the bus got to Champhira, the plaintiff
heard people shouting that they were going to die. At that time, one of the children was on her lap, the other one
was sitting beside her on the seat.
Then the bus missed the road and dived into the river. The plaintiff does not remember how she got
out of the river but she realized that she was out of the river and had
sustained some injuries. She told the
people that she had two children with her in the bus. They could not find them.
Upon further search they found the body of the younger child the
following day. The body of the elder
child was found two day later.
The
plaintiff further testified that when the bus plunged into the river, the
chairs fell upon her as a result of which she sustained some internal
injuries. She tendered a medical report
which indicates that her permanent incapacity as a result of the injuries she
sustained was assessed at 48%. She can
do manual work but with difficulties.
Before the incident, she used to work as a petrol attendant at Mobil
Filling Station. She was forced to
resign because she cannot stand for a long time. The plaintiff stated that she also cannot walk long distance and
only sleeps on one side. Since the
accident, she has been admitted twice for pains that have resulted from the
accident.
Let me
start with the plaintiff’s claim for loss of dependency and expectation of
life. I ward the plaintiff K50,000.00 for
the loss of each expectation of life.
As the plaintiff lost two children I award her K100,000.00 under this
head.
Then
there is the claim for loss of dependency.
Under this head, the nature of the benefit is found in the maintenance
and support that the deceased was providing for the plaintiff as well as the
benefits which the deceased could be expected to have continued to provide-(Vincent
Mwakamo vs. Flexer Ngoma ) (Civil Cause No. 1519 of 1997) The plaintiff testified that Beatrice, her
elder child could wash plates, cook and fetch water at the time of her
demise. She was also a good performer
at school. I know that it is hard
assess the damages for loss of dependency where the deceased was a child. Beatrice would however do house work at the
time of her demise. In Vincent
Mwakamo the court appreciated that much as there could be no
pecuniary benefit in respect of the death of a person who has not yet started
to earn his own living, there was still loss of society and companionship and
pride in a child’s achievement. In
solving the problem of how to attach value to such loss, the court considered
that such award be fixed at half the average industrial earnings. As this point in time, the average
industrial earning as at now is K1,500.00.
Half of this yield K750.00.
In Carmell
vs. Wilson, (1982 AC 27),
The house of Lords accepted a multiplies of 16 for a boy of 15
years. Here Beatrice was seven years
old I shall use a multiplier of 19.
this multiplier takes into consideration all factors that are taken into
account in identifying one, like, vicissitudes of life, individual’s possible
expectancy pecuniary benefits and others.
Using this multiplier, I award K171,000.00. Taking the same considerations into account I award the plaintiff
the same amount of K171,000.00 for the loss of dependency for the life of her
younger child Anne Njikho. In total, I
award the plaintiff K442,000.00. For
loss of dependency and expectation of life.
The
plaintiff also claims damages for personal injuries I award her K89,000.00
under this head. The plaintiff
commented that she resigned from her
job due to non performance as a result of injuries that she suffered in the
accident. Unfortunately, the plaintiff
never pleaded the same in her pleadings and this court cannot award her any
damages under this head.
The
plaintiff however spent some moneys incidental to the admission when she
sustained the injuries, the total for the incidentals comes up to
K1,500.00. I award her the same.
Then
there is the claim for the two coffins, transport and incidentals related to
the funeral of the two children. The
total comes up to K39,000.00. I award
the same.
I also
award the plaintiff costs for this action.
MADE IN
CHAMBERS this 2nd day of October, 2003