Nkhoma N.O. v Attorney General (Civil Cause No.1185 of 2005) ((Civil Cause No.1185 of 2005)) [2006] MWHC 46 (01 January 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CASE NO. 1185 OF 2005


BETWEEN

MARGARET KAMANGA NKHOMA………………………PLAINTIFF

(Representative of Lucious Kamanga Nkhoma (deceased))

-AND-


THE ATTORNEY GENERAL....………………………..DEFENDANT


CORAM: MANDA, SENIOR DEPUTY REGISTRAR


Mwale for the plaintiff

Mwangulube for defendant


Chulu Court Clerk


ORDER ON ASSESSMENT OF DAMAGES


This matter came before this court for assessment of judgement following a default judgement obtained by the plaintiff on the 17th day of January 2006. It was adjudged in that judgement that the defendant does pay the plaintiff damages for loss of dependency, loss of life and loss of expectation of life. At the same time the judgement did also award the plaintiff special damages amounting to K10, 500, but I am not going to make any comments regarding this aspect.


During the assessment only one witness testified and that was the plaintiff herself. The defendant was represented by Mr. Mwangulube.


The facts of this case were not disputed by the defence and they are simply that on or around the 24th day of May 2004, the plaintiff’s husband was shot by the police as he was on his way to his business premises. The plaintiff herself did not witness the shooting, but was apparently informed as to what had happened. Suffice to say that it was her evidence that her husband was shot in the heard whilst trying to give way to a police vehicle which was out on patrol following elections-related violence that had erupted during that period. From the facts presented, there seems to have been no justification at all for the shooting of the victim and hence it was also not in doubt that the plaintiff ought to be awarded damages, the question is of course how much and under what heads.


To begin with, I should state that the claim for loss of life is not sustainable at law. This was clearly stated in by Kennedy L. J. in Jackson v Watson and Sons [1909] 2 K.B. 193, who said that “where a person’s death has been caused by actionable conduct of another, no one whatever his connection with the deceased nay be, can maintain an action of tort for damage resulting to himself from the death.” Indeed the cause of action is held to the damage before the death and not the death itself. One of the reasons for the existence of this rule was given by Parke B. in Armsworth v South Eastern Ry. Co. 11 Jur. 758, to be that “a man has not such a legal right in the life of his parent as he has his own,” which reason has been held in Rose v Ford [1937] A.C. 826, to be applicable to persons other than parents.


Secondly regarding the second claim of loss of expectation of life, this head of damage was first admitted by the Court of Appeal as a separate head in the decision in Flint v Lovell [1935] 1 K.B. 354 and then by the House of Lords in Rose v Ford (supra). I should add that this head of damage was initially recognized for a living plaintiff and was later extended to actions which had survived for the benefit of the victim’s estate; including cases where death was instantaneous (see Morgan v Scoulding [1938] 1 K.B. 786). However, it is worth noting that the damages that were being awarded under this head were modest and that the right to claim for loss of expectation of life as a separate head of damage was abolished in England and Wales by the Administration of Justice Act of 1982. Thus considering that the damages under this head are supposed to be modest and that the sum is supposed to be a conventional one, I will award the plaintiff the sum of K55, 000 as damages for loss of life. In fact this sum is what I have proposed to be the benchmark for damages under this head (see Esther Verah Mndala v The Attorney General Civil Cause No. 286 of 2003 (unreported)).


Finally, let me now deal with the claim for loss of dependency. The right to claim compensation for the death of another is governed by the Statute Law Miscellaneous Provisions Act (Cap 5:01) of the Laws of Malawi. Under the Act, it is stated that the damages that are awarded should not be as a matter of consolation to the dependents for grief or suffering. Indeed the assessment of these damages has been described by Lord Wright in Davies v Powell Duffryn Associated Collieries [1942] A.C. 601, as “a hard matter of pounds, shillings and pence.”


The starting point for the assessment of damages in this regard will be the amount of dependency and this is normally ascertained by deducting from the wages earned by the deceased, the estimated amount of his own personal and living expenses. In Malawi this is estimated at a third of the income (see Makwelelo v. Attorney General Civil cause Number 2314 of 1999). In this instance that the approach for assessing damages would be by way of the multiplicand and multiplier formula and that whatever product is reduced by a third. The multiplicand is a figure representing the deceased’s monthly earnings while the multiplier is the figure representing the estimated number of years the deceased would have lived if not for the wrongful death. And the product of the multiplicand and the multiplier is multiplied by 12 representing the number of months in a year (see Mallet v. McManagle (1970) A. C. 166, 175).


In the present proceedings, the deceased was 34 years old at the time of his death. Current National statistics put the life expectancy in Malawi at 37 years. Further to that the court also takes into account that the award would be a lump sum and that there could have also been other factors that would have shortened the deceased’s life. In view of this, the court adopts a multiplicand of 10. At the time of his death we were told that the plaintiff was doing business of selling aluminum metals and that he would make around K5 000 per month in profits and that this was the money that he would use to take care of his family. Indeed it is this money that the plaintiff informed the court that she no longer has access to as such it would be on that basis that the court would be awarding damages. Having said that, the level of dependency would thus be K5 000 X 10 X 12, which comes up to K600 000 and that is the sum that the court will award the plaintiff. It should be pointed out that I did not take out the one third and this is because the evidence we had in court was that the K5 000 the deceased was making was all being used for taking care of the household needs.


All in all then the plaintiff will be awarded K600 000 for loss of dependency and K55 000 for loss of expectation of life. The total sum awarded would thus be K655 000. The plaintiff is also awarded costs of this action.


Made in Chambers this………day of…………………………..2006.








K.T. MANDA

SENIOR DEPUTY REGISTRAR