IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO.
348 OF 1999
CORAM: HIS HONOUR, M.C.C. MKANDAWIRE
Mr. Mvalo of Counsel for the plaintiff
R U L I N G
an appointment to assess damages following a default judgment, which
the plaintiff herein obtained in his favour on the
of August, 1999. The defendant was served with the notice to assess
damages. He did not turn for hearing neither his representative.
therefore went ahead to hear the plaintiff whose evidence has not at
all been controverted. By virtue of the default judgment
therefore means that the issue of liability has already been
determined. All that I need to do here is to assess the
of Summons issued on the 8th
of June 1999, the plaintiffs claim against the defendant was for
general damages in negligence and for loss of dependency and
expectation of life.
facts are that the plaintiffs son (now deceased) known by the
names Edward Beston Kawale was on the 11th
of January 1998 hit by the defendants mini bus Reg. No. MC 715.
The incident took place near Njewa Full Primary School. As
of this accident, the deceased died shortly before he was placed
before medical attention at Lilongwe Central Hospital.
tendered in this Court a death report (Pex 1) and police report (Pex
2). At the time the deceased met his death,
he was aged 19 and was
in Form II at Chawa Community Day Secondary School. Apart from the
plaintiff there were two other witnesses.
These are Loudon Njazi and
Mackson Chimenya. These are the two young men who were direct
colleagues to the deceased. They explained
with deep sorrow how the
mini-bus hit their dear friend as they were escorting him at the bus
stop. It should indeed have been
a horrible experience for these two
What I have to assess
therefore are damages for loss of dependency and expectation of life.
I am aware that at the time of his death, the
deceased was aged 19 years and was in Form II at a secondary school.
He was very
good at school. The father of the deceased described the
deceased as being a very helpful, industrious and a source of hope
the entire family. The whole family had a lot of expectation for
the future. The father said that he and his wife expected that
the two grew old, the deceased would take over and help them as well
as his brothers and sisters and other people in the village.
put it in a nutshell, the plaintiff, as the father, expected him to
grow into a healthy and useful person and he had great
for loss of expectation of life must be compensated for by a
conventional figure. It is not possible to translate this
rationally into money terms. As
in Rose v- Ford (1937) AC 826 at 841,
said damages of a claim of loss of expectation of life that there is
no difference in principle between the conventional figure
of expectation of life and those awarded for loss of an arm or loss
of an eye.
v British Railway Board (1983) 2 AC 773,
Lord Diplock said of non-economic loss of
Such loss is not susceptible of measurement in
money. Any figure at which assessor of damages arrives cannot be
other than artificial
and, if the aim is that justice meted out to
all litigants should be even-handed instead of depending on the
the assessor ------- the figure must be basically a
conventional figure derived from experience and from awards on
I am again aware that since the decision of
Benham v Gambling (1941) AC 157 the amounts awarded
under this head have been very modest. Counsel for the plaintiff has
cited to me several cases, which offer
guidance in matters of this
nature. I am not going to cite these cases again except to say that
all these cases were decided before
the fall of the Kwacha. The need
for a judge in assessing damages for non-economic loss to have regard
to awards in comparable
cases said Lord Diplock in Wright
v British Railway Board case:
has led to progressive general increases in the
level of awards. This takes into account inflation and the decrease
in real value
of the money. The assessment must be made with
reference to the money of the day.
v Gambling the award for expectation of
life was £200.
In Macgregor 15th
Edition at P. 1531, the learned authors observe the conventional sums
awarded for loss of expectation of life are still moderate
having risen in 1985 to £1,750 and £2,000 mark has still to be
reached. In Malawi currency £1,750 convert to about MK170,000.
Recent decisions of the Court show progressive increases. I think on
todays money, K250,000 is the conventional sum for loss
expectation of life and dependency and I award it to the plaintiff
and costs of the action.
IN CHAMBERS this 27th
day of August 2001 at Lilongwe.