Abraham v Deco Ltd. and Another (Civil Cause No. 1369 of 2002) (1369 of 2002) [2008] MWHC 129 (24 June 2008);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE NO. 1369 OF 2002



BETWEEN


ALFRED MANDEVU ABRAHAM ……………….………………………....... PLAINTIFF

-AND-

DECO LIMITED …………………………………………………………..1ST DEFENDANT

PRIME INSURANCE COMPANY LTD ………………………………. 2ND DEFENDANT


CORAM : T.R. Ligowe : Assistant Registrar

Malera : Counsel for the Applicant

Munyenyembe : Court Clerk


ORDER ON ASSESSMENT OF DAMAGES

This order follows the judgment handed down by Hon. Justice Nyirenda on 13th August 2007. The Judge found the defendants liable in negligence for the road accident that occurred on 21st November 2001 where the defendant’s Iveco Truck registration number MZ 4163 rammed into the plaintiff’s Mercedes Benz Truck registration number KA 732 upon overtaking it, forcing it off the road into the drain. The plaintiff’s truck got damaged and he claimed for costs of repair and loss of use of the truck for the period it was grounded. This is the assessment of the damages.


The defendants did not attend hearing of the assessment despite having been duly served with the notice. The court proceeded in their absence. Therefore the plaintiff’s evidence went without being challenged.


The plaintiff fixed the truck himself and it took 23 months and seven days before it was back on the road on or about 30th October 2003.


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) 1 WLR 1067 CA 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.”

In this case the plaintiff tendered all the receipts for the spare parts he bought to fix it. The receipts were bound together and marked Ex P 16. He got some of them from South Africa one from Tanzania and the rest from within. That time the exchange rate was ZAR1 to MK14 and Tsh1 to MK0.08. Adding all the receipts taking the exchange rates into account, the cost of repair comes to K646 561.34.


The plaintiff also claims damages for loss of use of his truck. His evidence on this claim shows profits he had been earning with the truck. What I find is that the evidence does not support the claim. Damages for loss of profits of a profit earning chattel are different from damages for loss of use. The former are special damages and as such must be specifically pleaded and particularized and, of course, proved. The measure is based on the nature of business the chattel is put to and the general return therefrom. (See Namandwa v. Tennet & Sons 10 MLR 383 applying Barrows Engr. Ltd v. Jewa, Supreme Court of Appeal, Civil Cause No. 7 of 1981, unreported, at p.386). The latter are general damages and are calculated on the basis of interest upon the capital value of the damaged chattel at the time of the damage, this value being ascertained by taking the original cost and deducting depreciation. (See Admiralty Commissioners v. S.S. Chekiang [1926] A.C. 637 applied in Namandwa v. Tennet & Sons 10 MLR 383).


As I see it, the court has not been accorded proper evidence to come up with a proper assessment for the claimed damages herein. And the loss of profits has not been specifically pleaded as required. The best I can do is to award nominal damages. Nominal damages may be awarded where the fact of loss is shown but the necessary evidence as to its amount is not given. (McGregor on Damages 16th Edition para. 423). I award the plaintiff K300 000 nominal damages for loss of use of his truck.


In all the plaintiff has been awarded K646 561.34 and K300 000 making a total of K946 561.34 plus costs of the action.


Made in chambers this 24th day of June 2008.







T.R. Ligowe

ASSISTANT REGISTRAR




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