Nyirenda v Dimba t/a Kilimanjaro Bottle Store (Civil Cause No. 801 of 2003) ((Civil Cause No. 801 of 2003)) [2005] MWHC 70 (01 August 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE NO. 801 OF 2003


BETWEEN

ENEM MASAUTSO KACHINGWE NYIRENDA ………………………… PLAINTIFF

AND

KENNEDY DIMBA t/a KILIMANJARO BOTTLE STORE ……………. DEFENDANT


Coram: T.R. Ligowe: Assistant Registrar

Chibwana : Counsel for the Plainiff

Mrs. Matola : Court Clerk


ORDER ON ASSESSMENT OF DAMAGES

The plaintiff went to drink beer at the defendant’s Bottle Store. He had just ordered bottles for himself and his friends when he went away to another Bottle Store nearby to chat with his nephew and uncle. He took some time there and the defendant’s bar man had to follow him there for payment of the bottles he had ordered. He refused to pay because for the whole bill but less the bottle that was meant for him because he had not taken it. He insisted he would not pay, until the defendant, the owner of the Bottle Store came to demand for his pay. That is when the two started quarreling. Each one of them stood his ground. Before the plaintiff started off for home on his car, the defendant grabbed him by the neck whilst in the driver’s seat, pulled him out and started beating him. The defendant’s bar tender and door bouncer joined in and rained blows on him. One of them poured beer on him. They shoved him around as they were shouting all sorts of bad names at him. He was rescued by other people who witnessed this happening. The plaintiff only realized he had been injured when he looked into a mirror at his house and found his face was swollen. He also discovered he had lost his cellphone and cash amounting to K2 300 in the fight. When he went to Lilongwe Central Hospital he was told his face would eventually heal itself without any medical treatment. But he still felt pain around his nose by the date he gave this evidence in court.

The plaintiff’s action against the defendant was for damages for assault and battery. He later obtained a judgment in default defence for the defendant to pay him K26 925, damages and costs to be assessed. This is the assessment of the damages.


The court proceeded in the absence of the defendant because he did not attend the hearing on the appointment to assess the damages despite having been duly served with the notice.

Damages for assault and battery causing physical injury are measured in the same way as damages for pain and suffering. See Ken Williams Mhango v. The Attorney General Civil Cause No. 980 of 1998. The damages are recoverable under major heads of pain and suffering and loss of amenities of life. When it has not resulted into physical injury damages are awarded to compensate the plaintiff for their injury to feelings. The general principle in both scenarios is to compensate the plaintiff in so far as money can do it. See Benson Nakununkhe v. Paulo Chakhumbira and Attorney General, Civil Cause No. 357 of 1997 (Principal Registry) (unreported). The extent of that compensation must be such that members of the society will be able to say that the victim has been well compensated. To do that it is desirable that as far as possible comparable injuries should be compensated by comparable awards. In his submission counsel for the plaintiff cited several authorities for comparable awards to the present case. I take them all into account and award the plaintiff K40 000 for pain and suffering in the present case plus costs of the action.


Made in chambers this ………. Day of August 2005.




T.R. Ligowe

ASSISTANT REGISTRAR