IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 1748 OF 2003
BETWEEN:
LIDIA MCHEKA
���������������...�..PLAINTIFF
AND
STEVEN ROBERT t/a NTHAWI YA
MAPETO
TRANSPORT� �����������������DEFENDANT
CORAM:�� TEMBO,ASSISTANT REGISTRAR
������������������ Movette, Counsel for the Plaintiff
This is this court�s order
on assessment of damages herein for personal injuries suffered by the plaintiff
in an accident caused by the defendants� negligence.� The assessment is done pursuant to a default judgment entered in
favour of the plaintiff dated 16th April 2004.� The notice of hearing of this assessment was
duly served on the defendant.� The
defendant did not attend the hearing leaving the plaintiffs evidence totally
uncontroverted.�
The defendant negligently
drove his truck on 9th December 2001 along the Chikwawa road when he
caused the accident herein in which the plaintiff� sustained� several
injuries.� The plaintiff suffered a
fractured around her left wrist and a fracture of the bones on her left
foot.� These fractured bones were cast
in a plaster of Paris for 2 months.��
The plaintiff also suffered a deep cut wound on her forehead that
exposed part of the skull.� That took
about 2 years to heal.� She now feels
better but water comes out the affected area of the forehead whenever it gets
cold.� Since the accident herein the
plaintiff can no longer carry out farming activities like hoeing as she used to
do before the accident herein.� The
plaintiffs� left forearm has also been shortened by a centimeter.� The plaintiffs� injuries herein were
serious.� She is clearly entitled to
damages claimed viz, for pain and suffering�
and loss of amenities� of life.� These damages are aimed at compensating the
plaintiff for her suffering as nearly as possible as money can do.� See Cassel and Company v Broome [1972]
A.C. 1027.
Such damages are incapable
of quantification in money terms with mathematical precision.� And so courts refer to decided cases of
similar nature for guidance on the level of awards.� This ensures some degree of general consistency in civil justice
in cases of similar nature.� See Wright
v British Railways Board [1983] A.C. 773.�
This court notes the
seriousness of the injuries suffered by the plaintiff and the impact of those
injuries on her enjoyment of certain aspects of life like farming.� This court has also sought guidance from
awards made in cases of similar nature to the instant one.� One such case being that of �Chimwala v Issa Civil Cause Number
1590 of 2000 �in which a
plaintiff suffered a fractured forearm and multiple bruises was awarded
K80,000.00 damages for pain and suffering and loss of amenities of� life in November, 2002.� Another case referred to by this court is
that of Chirwa v Juma and another Civil Cause Number 3790 of 2002.
In that case a plaintiff who has suffered a fractured arm and dislocated ankle
was awarded� K65,000.00 damages for pain
and suffering and loss of amenities of life in April, 2003.�� This court also considered the case of Mulinde
v Stagecoach Limtied Civil Cause Number 1816 of 1999 in which a
plaintiff who suffered cut wounds in the face and also cuts on his fingers was
awarded K20,000.00 damages for pain and suffering and loss of� amenities of life in October, 1999.
This court is aware that the
value of the kwacha has since depreciated in value since the awards
referred� to above by this court for
guidance.�
Having considered the
severity of the plaintiffs� injuries herein this court awards her the sum of
K350,000.00 damages for pain an suffering, and loss of amenities of life and
deformity.�� This court further makes an
award on loss of earning capacity of K50,000.00 the plaintiff�s earning
capacity having clearly been diminished by�
her injuries herein.
Made in Chambers at Blantyre this
����June, 2004.
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