Starch v Prime Insurance Company Limited (Ruling) (Personal Injury Cause No. 241 of 2013) [2017] MWHC 77 (19 June 2017);

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IN THE HIGH COURT OF MALAWI

PRINICIPAL REGISTRY

PERSONAL INJURYCAUSE NO 241 of 2013

 

Between

FATSANI STARCH (ON HIS OWN BEHALF AND ON BEHALF OF THE BENEFICIARIES OF THE ESTATE

AND

DAVID STARCH, DECEASED)............................................................PLAINTIFF

and

PRIME INSURANCE COMPANY LIMITED....................................... DEFENDANT

 

Coram: H/W Patemba

Kaluwa, Counsel for the Plaintiff

Tandwe, Counsel for the Defendants

Chitsulo Court clerk


Ruling


1.0 Introduction

The plaintiff is claiming damages for pain and suffering and loss of amenities of life, special damages and costs of this action following a court judgment entered on the 8th March 2015 where the court found the defendant liable of negligence and was ordered to pay damages to be assessed by the Registrar.

2.0 Evidence

The plaintiff adopted his witness statement and testified that he was injured on the cheek, chin and knee. He also claimed damages for loss of dependency of life which was not in his statement of claim.

3.0 Assessment of Damages

The general principle on which damages are assessed is stated by Viscount Dunedin in Admiralty Commissioners vs. S.S. Susquehanna [1926] AC 655 at 611 as follows:

" ... the Common law says that the damages due either for breach of contract or tort are damages which, so far as money can compensate, will give injured party reparation for the wrongful act"

When applying this principle it is important to bear in mind that damages in personal injury cases cannot give a perfect compensation in money terms of physical and bodily injury. This is because money cannot renew a physical frame that has been battered and shattered. All judges and courts can do is to award a sum which must be regarded as giving a reasonable compensation. See Zain Chipala vs Dwangwa Sugar Corporation Civil cause number 345 of 1998, per Chimasula J and West VS Shepherd [1964] AC 326.

When assessing damages payable for personal injuries the courts are guided by awards for comparable injuries. However, the court must consider the pain which the particular Plaintiff suffered because the circumstances of the particular Plaintiff are bound to have a decisive effect in the assessment of damages. See the decision of the Malawi Supreme Court of Appeal in HQ Cbidule vs Medi MSCA Civil Appeal Number 3633 of 2005.

3.1 Damages for pain and suffering and loss of amenities of life

These are general damages which are awarded to the plaintiff for suffering the injury due to the tort committed by the defendant. The plaintiff testified that he was injured on the cheek, chin and knee. The plaintiff Counsel cited the case of Thokozani Josamu& Luka Mandevu V. Prime Insurance Company Limited Civil Cause No 1534 of 2010, where the 1st Plaintiff sustained a cut wound the knee, bruises on both hands, cut on the head and soft tissue injuries, the court awarded him MK.2,500,000.00 on 4th April 2015. In the case of Patricai Bannets v. Alfred Lizimba & Another Civil Cause No 811 of 2011, the Plaintiff was awarded K 2, 000,000 for sustaining soft tissue injuries.

In the present case the plaintiff suffered injuries on the cheek, chin and knee. Having considered the current trend in awarding damages, and considering the extent of the injuries suffered by the plaintiff, and the effect of the accident on his life, the court is of the considered view that an award of MK 2, 000,000.00 is reasonable amount for pain and suffering and loss of amenities of life.

3.2  Special Damages

The plaintiff also claimed special damages for police report and medical report. 'The rule governing special damages is well settled. They must be specifically pleaded and must also be strictly proved.' Phiri v Daud [1992] 15 MLR 404 (HC). In the present case, the plaintiff has failed to prove that he indeed suffered economic loss by obtaining medical report. There is no receipt to that effect. This claim must, therefore, fail. As regards the police report, it was indorsed on the report that MK 3000.00 was paid through GR No 671285. Though the court would have preferred that the receipt to be exhibited in court. Therefore I ward the plaintiff MK 3000.00 on this head.

The court will not award damages for loss of expectation of life and loss of dependency as the same was not pleaded for and the judgment of 8th March 2015 did not make reference to such claim

The plaintiff is therefore awarded a total of MK 2,003,000.00 plus costs of this action.

Made in Chamber this 19th day of June 2017

_______________

A.T. PATEMBA

DEPUTY REGISTRAR