Professional Documents
Culture Documents
Reuben Haswell Chanza - Vs - Jones Somanje and PR
Reuben Haswell Chanza - Vs - Jones Somanje and PR
Reuben Haswell Chanza - Vs - Jones Somanje and PR
C IV IL C A U S E N 0.122 O F 2017
B E T W E EN :
R E U B E N H A S W E L L C H A N Z A .......................................................................................................... CLA IM A N T
AND
J O N E S S O M A N JE .......................................................................................................................... 1st D E FE N D A N T
PRIM E IN SU R A N C E C O M PA N Y L T D ........................................................................................ 2"“ D E FE N D A N T
CO RAM
BACKGRO UND
This is an order on assessm ent of dam ages following a default judgment against the defendants entered on
23rd June 2018. The claimant’s claim is for damages for pain and suffering, damages for loss of amenities of
life, dam ages for loss of earning capacity, special dam ages for medical treatment, medical and police report
and costs of the action. The facts of the case are that on 12th May 2016, a motor vehicle registration number
l
BM 7835 Hiace Minibus was coming from a direction of Mchinji heading towards Lilongwe. Upon arriving at
Ludzi turn off, the said motor vehicle started overtaking a truck. In the course, the motor vehicle lost control
and went to the extreme of the road where he hit a tree injuring three passengers on board including the
claimant. Resultantly, the claimant sustained an open tibia fracture on the right leg, deep cut wound on the
right thigh, degloving wound on the left leg, chest pains and bilateral knee injury.
E V ID E N C E
On the date of hearing, the claimant appeared through a Legal Practitioner. The claimant adopted his witness
statement where he stated that on 12th May 2016, he boarded a minibus registration number 7835 Toyota
Hiace minibus which was coming from Mchinji heading towards Lilongwe. As the minibus arrived at Ludzi
turn off, the driver of the said motor vehicle started overtaking a truck and in the course, he lost control of the
vehicle and went to the extreme of the road where he hit a tree. The claimant and other passengers got
injured. The claimant explained that he sustained an open fracture of the tibia and fibula on the right leg, a
deep cut wound on the right thigh, degloving wound on the left leg, chest pains and bilateral knee injury. The
Claimant tendered a medical report as part of evidence. The claimant stated that he experienced a lot of pain
and suffering at the time of the accident and even after the accident. He said he could not walk properly and
he even stopped playing soccer. The Claimant stated that he was 43 years old at the time of the accident.
He added that before the accident, he used to earn K 3 5 ,000.00 per month but he lost the means of earning.
In cross examination, the claimant stated that before the accident he used to work as a welder. He said he
was earning K35, 000.00 but could not adduce evidence further to that. Besides, the claimant admitted that
welding involves using hands but said that he had to walk for a long distance to get to the place of work and
now he cannot walk for a long distance since his legs swell.
IS S U E S
SU B M ISSIO N S
Only Counsel for the Claimant filed submissions. It was submitted that K 5, 0000,0000.00 would adequately
compensate the claimant on damages for pain and suffering, loss of amenities of life and disfigurement. It
2
was further submitted that K3, 601,728.00 would compensate the Claimant on the loss of earning capacity.
Counsel cited a number of comparable authorities which I will use later in this matter.
G E N E R A L LAW ON D A M A G ES
In assessing dam ages for personal injuries, the intention of the court is to compensate the injured party as
nearly as possible as money can do. The principle is to put the plaintiff at the position he would have been if
it would have not been for the tort committed. Se e N am w iyo v S e m u (1993) 16 (1 ) M LR 369.
In calculating d am age s, therefore, the Courts consider, in monetary terms, the sum which will make good to
the sufferer, as far as money can do, the loss he has suffered as a result of the wrong done. Se e A dm ira lty
‘Non-economic loss.., is not susceptible of measurement in money. Any figure at which the assessor
of damages arrives cannot be other than artificial and, if the aim is that Justice meted out to all
litigation should be even handed instead of depending on idiosyncrasies of the assessor, whether
Judge or Jury the figure must be basically a conventional figure derived from experience and from
awards in comparable cases. ’
‘It would appear to us that if the award is to be conventional, an aw ard fo r a sim ila r in ju ry should
be comparable and should, to some extent, be influenced by amounts awarded in the previous case,
either in the same or neighboring jurisdictions. In citing previous awards the court should not lose
sight of factors like devaluation of the currency since the awards were made.
PAIN AND S U F F E R IN G
In damages for pain and suffering, the court considers the physical experience of the nerves and mental
anguish which comes as a result of the injury. Se e Le m o n Banda a n d 19 o th e rs V Mota E n q il Lim ite d a n d
3
In the C ity o f B la n tyre v s Sagawa 1993 16 (1) M LR 67 the court quoted Kemp and Kemp volume II
Pain is, it is suggested, used to describe the physical pain caused by or consequent upon the injury,
while suffering relates to the mental element of anxiety, fear, embarrassment and the like.
Page 831 of Me Gregor on damages defines pain as the immediately felt effect on the nerves and brain of
some lesion or injury to a part of the body, while suffering has been defined as the distress which is not felt
as being directly connected with any bodily condition. Pain includes any pain caused by medical treatment
or surgical operations rendered necessary by the injury inflicted by the defendant. Suffering includes fright
at the time of the injury and fright reaction, fear of future incapacity, either a s to health, sanity or the ability to
Loss of amenities is concerned with loss of enjoyment of life. This follows from the fact that human beings
enjoy certain activities which may as a result of the injury be curtailed. See Le m o n B an d a a n d 19 o th e rs V
Mota E n g il Lim ite d a n d G en era l A llia n ce In su ra n ce Lim ited, p e rso n a l in ju ry ca u se n u m b e r 178 o f 2012
(unreoorted.
Sirkett L.J in M anley v s R u g b y P o rtla n d C e m e n t Co. (1951) C .A No. 286 stated that there is a head of
damage which is sometimes called loss of amenities, the man made blind by the accident will no longer be
able to see familiar things he has seen all his life, the man who had both legs removed and will never again
go upon his walking excursions- things of that kind- loss of amenities. Me G re g o r on da m ages at P a g e 834
explains that loss of impairment of any one or more of the five senses is compensated under this head.
Besides loss resulting from interference with the plaintiffs sexual life.
DISFIGUREMENT
Disfigurement is concerned with change of looks of the individual. This may be scars, amputations and
4
Lim ited, p e rso n a l in ju ry ca u s e n u m b e r 178 o f 2012 (unreported. Dam ages for disfigurement are normally
awarded as part of pain and suffering. They are awarded separately if the plaintiff has been ridiculed, lost
his social status, or that his is in need of plastic surgery.Se e M ary K am w endo v s Sta g e co a c h Malawi
L O S S O F E A R N IN G C A P A C IT Y
This in essence is the decrease in ability to earn income. For example, in cases of continuing disability the
claimant may be able to remain in his employment but with the risk that, if he loses that employment at some
time in future, he may then, as a result of his injury be at disadvantage in getting another job or an equally
The amount is calculated by taking the figure of the claimant’s present annual earnings less the amount, if
any which he can now earn annually and multiply this by a figure which, while based on the number of years
during which the loss of earning power will last is discounted so as to allow for the fact that a lump sum is
being given now instead of periodical payments over the years. The latter has long been called the multiplier,
the former figure has now come to be referred to as the multiplicand. Further adjustments however may have
to be made to the multiplicand or multiplier on account of variety of factors viz, the probability of future
increase or decrease in the annual earnings, the so called contingencies of life and the incidence of inflation
S P E C IA L D A M A G ES
The rule is well settled that special damages have to be specifically pleaded and strictly proved. Se e P h iri
V D a u d i 15 M LR 404. A plaintiff who claims special dam ages must therefore adduce evidence or facts which
give satisfactory proof of the actual loss he or she alleges to have incurred. See A ia s C h ikan da v s Prim e
D ETERM IN ATIO N
The medical report in the matter at hand points that the claimant sustained an open tibia fibula fracture on
the right leg. Besides, the claimant sustained a deep cut wound on the right thigh, degloving wound on the
left leg, chest pains and bilateral knee injury. He was admitted at Queen Elizabeth Central Hospital from 12th
5
May 2016 to 23rd May 2016. The claimant was taken for emergency. The wounds were dressed and an
external fixation with rods was done. He suffered a permanent incapacity of 35% and the report shows that
he will have difficulties to walk since he has a limp. The medical report also indicated that the claimant is not
fit for manual work. The injuries that the claimant sustained and the treatment that he went through only
proves that the pain and suffering that the claimant experienced was great. In addition, the claimant will have
difficulties to walk which means he cannot even run for a long distance or do sports that involves use of legs.
Counsel cited a case of Clifford Petu lo (su in g h trouah h is m o th er a n d n e xt friend, Maria L o m o s i P etu lo )
v s G en era l A llia n c e In su ra n ce Lim ite d P e rso n a l In ju ry C a u se N u m b er 847 o f 2014 . where the plaintiff
suffered a fractured left lower leg therefore award a sum of K 4 ,000,000.00 on dam ages for pain and suffering,
loss of amenities of life and disfigurement was made on 29th October 2015. In the foregoing reasons I award
a sum of K 5 ,000,000.00 dam ages for pain and suffering, loss of amenities of life and disfigurement.
On loss of earning capacity, there is no substantial evidence that the claimant used to earn K 3 5 ,000.00 per
month and no evidence a s to how much he earns in his business. Besides, the claimant has the capacity to
embark on a welding business even at his home. On that basis I will award K 1 ,500,000.00 damages.
The Court also awards K 3 ,000 for Police report which was paid under G R 2804273.
T. S O K O
A S S IS T A N T R E G IS T R A R