Nyasulu NO v Mjuma (55 of 2000) ((55 of 2000)) [2001] MWHC 72 (15 September 2001);

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IN THE HIGH COURT OF MALAWI


MZUZU HIGH COURT


CIVIL CAUSE NO. 55 OF 2000




BETWEEN:



MR. MJEDO NYASULU (EXECUTRIX

OF THE ESTATE OF MRS SOPHIA NYASULU…………PLAINTIFF


-and-


MR. KESTER MJUMA…………………………………….DEFENDANT




CORAM: HIS HONOUR, M.C.C. MKANDAWIRE

DISTRICT REGISTRAR

Hon. Justice Ndovi (Retired) of Counsel for the plaintiff

Mrs. Chisi – Official Interpreter




R U L I N G


This is an appointment to assess damages following a default judgment, which the plaintiff herein obtained in his favour on the 29th day of December 2000. The defendant was served with the notice to assess damages. He did not turn up neither his representative. No reasons were given for such a failure. I therefore went ahead to hear the assessment in his absence. There is only one witness in this assessment. This witness is Mr. Mjedo Nyasulu the next of kin of Sophia Nyasulu who is also the executrix.


In the first place, since there is a default judgment in this case, it means that the issue of liability has already been settled through this judgment. All that I shall narrate here are brief facts so that the reader has a proper perspective of the case.


The deceased Sophia Nyasulu who was a mother to the plaintiff met her death on the 1st of January 1999. It is indeed sad that the deceased lost her life on the first day and month of the New Year. The deceased was hit by the defendant’s motor vehicle as she was on her way from the market to her home. The plaintiff tendered a death report, which confirmed cause of death. It is marked as Pex I. There was also tendered in Court a police report which is Pex 2. This report does disclose that the defendant was at fault. To put it in a nutshell, therefore, the plaintiff would like to be awarded compensation for loss of life and expectation.


It is very clear from his evidence that this family lost the father sometime ago. The plaintiff said that the deceased was the only person guiding them. In view of this death, there are three dependants aged 12, 15 and 17 years respectively who are in big financial problems. The last two cannot even continue with their education due to problems of money.


The general principle is that a claim for loss of expectation of life must be compensated for by a conventional figure. It is not possible to translate this loss rationally into money terms. As in Rose –v- Ford (1937) AL 826 at 841, Lord Writ said damages of a claim of loss of expectation of life that there is no difference in principle between the conventional figure for loss of expectation of life and those awarded for loss of an arm or loss of an eye.


In Wright –vs- British Railway Board (1983) 2AC 773, Lord Diplock said of non-economic loss of this kind:


“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 idiosyncrasies of the assessor ------------------- the figure must be basically a conventional figure derived from experience and from awards on comparable cases.”


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. The Court in assessing such damages has also to take into account the value of the Kwacha at the moment. There is also need for a judge in assessing such damages to take into account awards in comparable cases. On this point, Lord Diplock in Wright –vs- British Railway Board case noticed:


“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.”


In Benham v Gambling the award for expectation of life was £200. In McGregor 15th Edition at p.1531, the learned authors observe the conventional sums awarded for loss of expectation of life are still moderate today having risen in 1985 to £1,750 and £2000 mark has still to be reached. In Malawi currency £1,750 convert to about MK170,000. Recent decisions of the Court show progressive increase.


In this case at hand, the deceased, mother of six, was 56 years before she met her fate. She was the only inspiration for the family. She was the only light as the father to the dependants died sometime ago. A mother is very important in someone’s life. Loss of a mother can have devastating repercussions on the proper upbringing of the children.


The whole family now is reduced to orphans. The whole burden is on the plaintiff. I am aware that the compensation to be awarded herein shall not replace the mother. But it should as near as possible compensate the victim in as much as money can do. I do award the plaintiff the sum of K190,000 for loss of expectation of life and dependency plus costs of this action.


MADE in Chambers this 15th day of September 2001 at Mzuzu.







M.C.C. Mkandawire

DISTRICT REGISTRAR