Simutiyani v Nkhoma and Another (Civil Cause No.358 of 2005) ((Civil Cause No.358 of 2005)) [2006] MWHC 78 (01 March 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.358 OF 2005

BETWEEN

LOUIS M.G. SIMUTIYANI …….…………………………. ………….. PLAINTIFF

AND

SHADRECK NKHOMA ……………………………………….. 1ST DEFENDNAT

ALI KANJOKA MPAMANDA ………………………………… 2ND DEFENDNAT


Coram: T.R. Ligowe : Assistant Registrar

MALERA : Counsel for the plaintiff

MLENGA : Court Clerk


ORDER ON ASSESSMENT OF DAMAGE

The plaintiff commenced action against the defendant by way of writ of summons. It is pleaded in the statement of claim that the plaintiff is the owner of motor vehicle number FDZ 571 NW Ford Pick up and the second defendant is the driver (sic) of Motor vehicle number MH 2160. On or about 30th January 2005, at around 11.00 am, Shadreck Nkhoma drove motor vehicle number MH 2160 belonging to the defendant in a manner so negligent that he collided with the plaintiff’s motor vehicle number FDZ 571 NW at Banja La Mtsogolo stage , Kawale location in the city of Lilongwe. As a result of the said accident the plaintiff has suffered loss and damage, the particulars of which are that: the front t part of motor vehicle number FDZ 571 NW was extensively damaged; the plaintiff lost use of the said vehicle from 30th January 2005 to the date of repair; and the sum of K377 236.64 as cost of repairs. The plaintiff therefore claims: the said sum of K377 236. 64; the sum of K2 000 as cost of a Police report; damages for loss of use; General damages; and costs of the action.


No notice of intention to defendant having been given by the defendant, the plaintiff entered a default judgment for the defendant to pay K379 236.64 as special damages; damages for loss of use; general damages; and costs of this action.


This is an order on assessment of the said damages. The assessment was heard in the absence of the defendants as they did not communicate the reason for their non attendance of the court on the date appointed for the hearing despite having been dully served with the relevant notice.


The plaintiff’s evidence confirmed the facts pleaded in the statement of claim. He tendered a Police report of the accident which shows that the driver for motor vehicle number MH 2160 was in the wrong. The plaintiff told this court that his vehicle got badly damaged on the accident and it has not been repaired yet. That it was badly damaged is also confirmed by the Police report. He tendered a quotation from Davie Motor service for the repairs to be done on the vehicle. The plaintiff told the court that he has been deprived of transport to use in conducting his usual business.


The normal measure of damages in cases where there has been physical damage of goods as a result of the defendant’s negligence is the reasonable costs of repair. The law was clearly settled in Derbishire v. Warran (1963) 1WLR 1067 C.A. where Harman L.J. said:

“[I]t has come to be settled that in general, the measure of damage is the cost of repairing the damaged article.”


The plaintiff in this case also claims damages for loss of use of the damaged vehicle. A reading of the Marpessa [1907] A.C. 241, Admiralty Commissioners v. S.S. Chekiang [1926] A.C. 637 and Admiralty Commissioners v. S.S. Susquehanna [1926] A.C. 655 shows that damages for loss of use where the vehicle damaged is not profit earning and there is no substitute vehicle hired or no stand-by vehicle kept available, is generally to be calculated on the basis of interest upon the capital value of the damaged vehicle at the time the accident, this value being ascertained by taking the original cost and deducting depreciation. No evidence has been adduced in this court to enable me to assess the damages in that respect. So I award no such damages.


In summary I award the plaintiff K379 236.64 being the cost of repairs of the damaged vehicle and expenses for the Police report. He also gets costs of the action.


Made in chambers this ………. Day of March 2006.





T.R. Ligowe

ASSISTANT REGISTRAR