IN THE HIGH COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL
CAUSE NO. 3556 OF 2002
BETWEEN:
ON BEHALF OF M. CHAWANDA (DECEASED) & OTHER DEPENDANTS
THE ATTORNEY GENERAL …………………………………………DEFENDANT
CORAM: M
A TEMBO, ASSISTANT REGISTRAR
Movette,
Counsel for the Plaintiff
This is an action for damages for
loss of dependency and loss of expectation of life.
This assessment is done pursuant
to a default judgment entered herein in favour of the plaintiff dated 29th
November, 2002. A notice of hearing of
this assessment was taken out by the plaintiff and was duly served on the
defendant. However, the defendant did
not attend the hearing leaving the plaintiff’s testimony totally
uncontroverted.
The plaintiff was the only
witness herein.
He informed the court that the
deceased herein was his child who at the time of his demise was 12 years
old. He further informed the court that
the deceased died after being hit by a government vehicle. The plaintiff tendered in evidence a report
on the death of his child which is marked as Exhibit P. 1.
The plaintiff further informed
this court that the deceased was doing his primary school in standard 4 at the
time of his demise. He further informed
the court that when the deceased was alive he used to assist in running the
plaintiff’s banker.
The case of Rose v Ford (1937)
A.C. 826 settled the law that a claim for loss of expectation of life is
maintainable on behalf of the estate of the deceased. As regards the award for such loss, Cain v wilcock
(1968) All ER 817 described as basically a conventional figure. This is the case because loss of expectation
of life is an aspect incapable of quantification using any known arithmetical formula. The court considered awards made in similar
cases to the instant one in the near past as well as the cases cited by counsel
for the plaintiff including that of Catherine Maida on behalf of
Fatsileni Maida (deceased) and other dependants v Savala and Prime Insurance
Company Civil Cause Number 3060 of 2001 in which K65,000.00 was
awarded as damages for loss of expectation of life by the deceased who died
aged 14 years. The Court notes that
although the life expectancy in the country is now pegged at less than 40 years
old for men the deceased herein still had a good number of years to live if it
were not for the wrongful death.
In the circumstances the court
awards the plaintiff K70,000.00 as damages for loss of expectation of
life. Then there is the claim for loss
of dependency.
To arrive at the award to be made
for loss of dependency the courts use what is known as the multiplicand and
multiplier formula. The multiplicand is
a figure representing the deceased’s monthly earnings whereas the multiplier is
an estimated number of more years the deceased would have lived if it were not
for the wrongful death.
Loss of dependency is calculated
by multiplying the multiplicand by the multiplier and also the figure of 12,
representing the number of months in a year.
Then a reduction of one third of the product is made to take into
account sums the deceased would have expended on purely personnel pursuits.
The obvious difficulty herein is
that the deceased could not be employed due to his tender age which then has an
implication on his earning capacity and consequently on the dependency on him
by the plaintiff and others herein.
But this state of affairs does
not mean that an award for loss of dependency can not be made.
In P. Libana v Attorney
General Civil cause Number
296 of 1998 the court adopted a ¼ of the domestic servants minimum wage as the
multiplicand where the deceased died aged 12 years. The Court adopts a similar approach herein.
And taking the minimum wage to be
K1,500.00 the multiplicand shall be K375.00.
As regards the multiplier the
starting point is the degree of life expectancy in Malawi currently. Recent statistic’s peg life expectancy in
Malawi at less then 40 years for men.
In the instant case the deceased
died aged 12 years and the court adopts the multiplier of 25 that is assuming
that he would have lived up to 37 years.
The calculation for loss of
dependency herein therefore becomes K375 x 25 x 12 x 2/3 which is K75,000.00.
In total the award for loss of
expectation of life and loss of dependency is K145,000.00.
Costs of the present action are
awarded to the plaintiff.
The court has one comment to make
on the pleading’s herein. In the
statement of claim endorsed on the writ of summons what is claimed is damages
for loss of dependency and loss of expectation of life.
But on a perusal of paragraph 5
of the statement of claim it is surprising and confusing that the plaintiff
claims damages for pain and suffering and loss of amenities of life. This is most unusual.
Much as human error can not be
ruled out the court would like to point out that counsel ought to pay
particular attention to pleadings as these are the basis on which relief’s are
granted. What happened herein is surely
a grave oversight on the part of Counsel.
But nevertheless it is clear in the mind of the court that damages were
sought for loss of dependency and loss of expectation of life and the court has
awarded the same to avoid denying justice to the claimant due to Counsel’s
lapse in attention to the pleadings.
MADE in
Chambers at Blantyre this 26th February, 2003.
SUPREME
COURT OF APPEAL