IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL
CAUSE NO. 2173 OF 1997
BETWEEN:
NJOLOMOLE (DECEASED)…………………………………….2ND
PLAINTIFF
AND
M J BANDA …………………………………………………………….DEFENDANT
Msiska,
Counsel for the Plaintiff.
Ngwira,
Counsel for the Defendant
This is
this court’s order on assessment of damages.
The assessment of damages is done pursuant to a consent judgment in
favour of the plaintiff for damages for personal injuries suffered by both
plaintiffs. The 1st
plaintiff and her child the 2nd plaintiff were hit by the
defendant’s motor vehicle.
The 1st
plaintiff suffered abrasions of the right upper arm. That is the evidence of the plaintiff’s injuries as per her own
medical report. The medical report does
not confirm the rest of the injuries the 1st plaintiff alleged she
had suffered in the accident herein.
The rest of the alleged injuries alleged to have been suffered by the 1st
plaintiff are therefore disregarded in view of the medical evidence. As a result of her injuries on the arm the 1st
plaintiff still fells pain. She had to
be admitted in hospital for treatment for a period of 3 months. In the same accident the 1st
plaintiff’s child of 6 years of age died.
It is clear herein that the plaintiffs are entitled to damages for
personal injuries. And thus damages for
pain and suffering in relation to the 1st plaintiff and damages for
loss of expectation of life with regard to the 2nd plaintiff’s
estate.
Such
damages are awarded to compensate the plaintiff for injuries suffered due to
the defendants’ negligence. See Livingstone
v Rawyards Coal Company (1880) A. C 25. Such damage are not capable
of quantification in money terms with mathematical precision. As a result courts use decided cases of
comparable nature as a guide in arriving at appropriate awards in each
particular case. That ensures some
general degree of uniformity and consistency in civil justice. See Wright v. British Railways
Board (1983) 2 A.C 773.
This court further notes that to achieve justice it has to consider the
facts in each particular case and avoid sticking to consistency in awards at
the expense of justice being done to the parties. See Heil v. Rankin [2000] 2 W L R 1173 at 1186 per Lord Woolf M.
R.
This
court has considered the 1st plaintiffs’ injuries. She must have suffered a lot of pain from
those injuries as well as from the treatment of the same. This court has considered awards in recent
cases in which plaintiff’s suffered similar injuries. One such case is that of Mpeketula and another v. Kiwi
Brands Ltd and Prime Insurance Company Ltd Civil Cause Number 2420
of 2002.
The 2nd
plaintiff in that case had been hit by the 1st defendants’ motor
vehicle. Consequently the 2nd
plaintiff violently landed on the tarmac suffering a dislocated right knee, a
cut on the right hand and bruises on the right shoulder. A sum of K80,000.00 was awarded to that 2nd
plaintiff as damages for pain and suffering and loss of amenities of life. It is noted that the injuries suffered by
the 1st plaintiff herein are comparable to the ones suffered by the
2nd plaintiff in the Mpeketula case above. But the award in the Mpeketula case was made in December,
2002. Since then the value of the
Kwacha has fluctuated down wards. In
the circumstances of the present case this court is of the view that a fair
award to the 1st plaintiff be K70,000.00. The sum of K70,000.00 is therefore awarded to the 1st
plaintiff as damages for pain and suffering.
With regard to the 2nd plaintiff’s claim for loss of
expectation of life this court notes that such a claim is maintainable on
behalf of her estate. See Rose
v Ford (1937) A. C
826. The award of damages in such cases
is conventional. This is because it is
impossible to quantify loss of expectation of life with mathematical precision. See Cain v. Wilcock [1968]
All ER 817.
The
courts therefore draw guidance on level of awards in such cases from decided
cases of comparable nature. This court
has considered recent awards on loss of expectation of life including the one
made in the case of Mpuche v. Kwanyasa Civil Cause number 2627 of 2002 made in
April, 2003. In that case a sum of
K70,000.00 was awarded as damages for loss of expectation of life on the demise
of a 14 year old.
In the
instant case the deceased 2nd plaintiff died a lot younger and the
kwacha has lost some value since the award alluded to above. In the circumstances the sum of K150,000.00
is awarded to the 2nd plaintiff’s estate for loss of expectation of
life.
Costs are
for the wholly successful plaintiffs.
Made in CHAMBERS
at Blantyre this …….. April, 2004.