Vaz v Attorney General (Civil Cause No. 563 of 2004) ((Civil Cause No. 563 of 2004)) [2005] MWHC 91 (01 September 2005);

Share

IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No. 563 OF 2004

BETWEEN

BERNADETTER VAZ …………………………………………………… PLAINTIFF

AND

THE ATTORNEY GENERAL …………………………………………. DEFENDNAT


Coram: Ligowe: Assistant Registrar

Chilenga: Counsel for the Plaintiff

Baziliyo : Court Clerk


ORDER ON ASSESSMENT OF DAMAGES

The plaintiff in this case entered a default judgment against the defendant for damages to be assessed on a claim for general damages for professional negligence that occurred at Machinga District Hospital on 11th December 2001 and costs of the action.


The facts of the case are that the plaintiff was on or about 11th December 2001 operated on by doctors acting in the course of their employment. Immediately after the operation she lost the ability to walk and became paralyzed.


The defendant did not attend the hearing on the date appointed to assess the damages despite having been duly served with the notice. No reason for non attendance having been communicated, the court proceeded in his absence.


The plaintiff was the sole witness. She testified that she can not walk, she can not control herself to urinate and she can not sneeze and cough. She has a wound at her back which has not completely healed and whenever something touches it, it grows bigger. That it all started after the operation at Machinga District Hospital. She had a swelling at her back and she went to the hospital for treatment. She went through a surgical operation but after the operation she could not wake up or speak. She stayed in the hospital for three months but did not get well. She was given a wheel chair and the hospital put a tube (an indwelling catheter) on her as she had difficulties in urinating. She tendered her pictures before the operation and after the operation for the court fully appreciate the pain she went through. She also tendered a medical report from Lilongwe Central Hospital which better describes her condition. The report shows the plaintiff had congenital haemangioma on the back and she had to go through a hamangiotomy removal of the bloody swelling on her back to stop internal bleeding into the spinal canal but that was not successful. The operation ended in complete paralysis, incontinence of both urine and stools and paralysis of lower extremities. That she feels pain up to date. That the injury caused her disability up to 90%.


Before she went for the operation she had just finished her form four and expecting to start going to work.


A person who suffers bodily injuries due to the negligence of another is entitled to the remedy of damages. Such damages are recoverable for both pecuniary and non pecuniary losses. The principle underlying the award of the damages is to compensate the injured party as nearly as possible as money can do it. See Cassell and Company v. Broome (1972) AC 1027. The pecuniary losses include loss of earning capacity and related benefits and medical expenses and related expenses. The non pecuniary head of damages are pain and suffering, loss of amenities of life and loss of expectation of life.


In the present case the plaintiff has to be compensated for the loss of her future earning capacity, pain and suffering, loss of amenities of life and loss of expectation of life.


Loss of earning capacity is normally measured by use of the multiplier and multiplicand. The multiplier is the number of years during which the plaintiff’s loss of earning power may last and the multiplicand is the plaintiff’s annual earnings before the injury less his annual earnings after the injury. The calculation of the multiplier requires medical testimony based on an examination of the plaintiff as near as practicable to the time of trial. If the medical testimony establishes that the injury is permanent as is in the present case it becomes necessary to asses the expectation of the plaintiff’s working life. On the multiplicand, if the plaintiff was not working at the time of the injury and was therefore not earning because he could not find work or had not found work rather than because he did not care to work, the court has to estimate his prospects of gaining employment in the future. These are the principles I have to apply in this case.


The plaintiff in this case suffered a permanent injury. She is 23 years old. The average life expectancy in Malawi is 38. Basing on that the plaintiff’s working life expectancy can be estimated at 15 years. It is very possible however for one to outlive the life expectancy. Counsel for the plaintiff submitted that many Malawians have lived beyond 60 years. This court agrees. In fact 38 is the average life expectancy and not the plaintiff’s life expectancy. If it was, there was not going to be much difficulty. In the circumstances of this case I take 20 years as the appropriate multiplier. As for the multiplicand, I estimate it at K10 000 per month as submitted by counsel. That gives us K2 400 000 in 20 years.

I grant it to the plaintiff as damages for loss of future earning capacity.


I consider the circumstances in which the plaintiff is due to the injury. I also consider previous awards made by the high court in comparable cases of a similar nature, the likes of George Malola v. Dimon (Malawi) Limited Civil cause No. 1240 of 2003 where the plaintiff was awarded K400 000 for pain and suffering and loss of amenities. And I bear in mind that the extent of the award the court has to make must be such that members of the society will be able to say that the plaintiff has been well compensated. I award her K1 000 000 for pain and suffering and loss of amenities of life. In total therefore the plaintiff has been awarded K3 400 000 plus costs of the action.


Made in chambers this …….. day of September 2005.



T.R. Ligowe

ASSISTANT REGISTRAR