IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO. 232 OF 1997

BETWEEN

S.M.G
CHIMALIRO…………….....………………………PLAINTIFF

-AND-

SOUTHERN
BOTTLERS LTD…………………………DEFENDANT

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Chimaliro
(in person)

Kapezi
for the defendant

ORDER
ON ASSESSMENT OF DAMAGES

This
matter came for assessment of damages on the 13^th
day of December 2006, following the judgement of Hon. Justice I.C.
Kamanga, dated 6^th
October 2006, in which the judge found the defendants liable for
negligently causing the plaintiff personal injury. The Judge also

awarded the plaintiff the costs of the action.

The
simple facts of this case are that on or about the 13^th
day of March 1997, the plaintiff bought and drank a fanta,
manufactured by the defendant company. Upon drinking some of the
fanta,
the plaintiff felt pain on both her tongue and throat which
made her examine the contents of the bottle and noting that it was
contaminated with some black substances, whose chemical composition
was never ascertained. Nevertheless, after the taking the fanta
the
plaintiff was taken ill and had to go to the casualty ward at the
Kamuzu Central Hospital for treatment. The treatment involved
a
washout of the plaintiff’s stomach (a procedure described as
gastric ravage) and providing her with drugs to stop the stomach

aches and diarrhea that the plaintiff was experiencing. During the
assessment hearing, it was the plaintiff’s evidence that to
this
day she has to take medication for her stomach aches and diarrhea.
Indeed it is in this regard that the medical personnel
assessed her
permanent incapacitation to be at 8%. Indeed it is in this regard
that this court shall proceed with the assessment
of damages.

At
the time of proceeding with this ruling, the defence had not filed
their written submissions as promised as such the court proceeded
to
consider the plaintiff’s submission as well as the law on the
subject. Further, due to the fact that the plaintiff appeared
in
person, I thought that the ruling should be as detailed as possible
as I did set out my riling as follows:

It
has been stated that in all but a few exceptional cases, the victim
of personal injury suffers two distinct kinds of damage which
may be
classified as pecuniary and non-pecuniary. By pecuniary damage is
meant that which is susceptible to direct translation
into money
terms and includes such matters as loss of earnings, actual and
prospective, and out-of-pocket expenses, while non-pecuniary
damage
includes such immeasurable elements as pain and suffering and loss of
amenity or enjoyment of life. In respect of the former,
the court
usually seeks to achieve restitution
in integrum, (see
Livingstone
v Raywards Coal Co.
(1880) 5 App. Cas. 25, 39),
while
for the latter courts do award fair compensation or as per Harman
L.J, provide the plaintiff with some solace for his/her
misfortunes
(see Warren
v King [1964]
1 W.L.R 1, 10).

Whilst
noting the principles under which, damages are awarded, the issue
arises as to the extent to which losses pleaded by the
plaintiff must
be certain and how account is taken of future contingencies. In this
regard a distinction is first drawn between
the question of degree of
proof required in relation to the losses pleaded in the statement of
claim and the question whether losses
which depend on future
contingencies may be pleaded and how they are to be assessed. As
regards the former the general principle
was stated by Bowen L.J. in
Ratcliffe
v Evans
[1892] 2 Q.B. 524, 532-533, in the following terms:

“the character
of the acts themselves which produce the damage, and the
circumstances under which these acts are done, must regulate
the
degree of certainty and particularity with which the damage done
ought to be stated and proved. As much certainty and particularity

must be insisted on….as is reasonable, having regard to the
circumstances and that nature of the acts themselves by which the

damage is done.”

In
this regard it has been held that special damages such as expenses
must be pleaded and proved exactly, and indeed where special
damages
have not been pleaded and proved the claim is deemed not to have been
proved and the same is dismissed (see Likaku
v Mponda
11 MLR 411 and Cheeseman
v Bowaters United Kingdom Paper Mills Ltd.
[1971] 1 W.L.R. 1773). On the other hand, non-pecuniary losses such
as pain and suffering are inferred or presumed and little is
required
by way of evidence. However financial elements in general damages,
such as loss of earning capacity, will not be presumed,
and thus
should be supported by evidence (see Domsalla
v Barr
[1969] 1. W.L.R. 630).

In
the present instance the court did award the plaintiff damages for
the trauma that she had suffered and this was based on her
claim for
damages for pain and suffering. In her submissions however, the
plaintiff asked this court to consider awarding her damages
for
pecuniary loss, pain and suffering, personal injuries, medical
expenses and what she referred to as bills as disbursements.
The
latter category apparently include a deposit paid to Messrs Likongwe
and Company, payment for an interim Bill of Costs, filing
fees,
transport and accommodation costs and other expenses that she
incurred during this trial. In this regard, it was the observation
of
the court that apart from the claim for damages for personal injuries
(which are awarded in terms of pain and suffering), the
other claims
submitted by the plaintiff were never pleaded as such this court does
not have any jurisdiction to make a finding
on those issues (see
Likaku
v Mponda
(supra)). Indeed on this note alone, this court was of the view that
the claims should be dismissed. Nevertheless, and in view
of the
circumstances surrounding the case, the court proceeded to address
each of the items pleaded by the plaintiff in the same
order that she
presented them.

The
first issue that the plaintiff presented was regarding her claim for
pecuniary loss. In this regard, it was the plaintiff’s
submission
that her life expectancy was reduced after taking the contaminated
fanta, such that it was her belief that she should
be compensated for
the 21 years that she has left until she retires. The plaintiff’s
argument in this regard was based on the
fact of her 8%
incapacitation, which I must add was assessed in 1998. During her
testimony, there was no evidence from the plaintiff
as to whether
there has been any progression (over the past 9 years or so) in her
level of incapacitation to such an extent that
it had now become life
threatening. Indeed there was no medical evidence as to how long the
plaintiff has to live; in fact all
what the plaintiff did was to
express her anxieties, which I must say does not constitute evidence
of her loss of earning capacity
to warrant her to be awarded
pecuniary damages. At the same time, it was the considered opinion of
this court that incapacitation
of 8% can not be constituted as life
threatening and this is of course also demonstrated by the fact that
for the past 9 years,
the plaintiff has not lost her job and that she
still continues to earn a living. Then there is also the issue of
certainty regarding
the point at which the plaintiff can be medically
deemed to be no longer able to perform her functions as a magistrate.
From the
plaintiff’s submissions, there seems to be a suggestion
the court should award her pecuniary damages so that she can then
proceed
on retirement, so in essence it becomes the plaintiff’s
choice to retire and not because she has been medically declared
unfit
to work. Indeed I am inclined to hold this view because whilst
as the medical report (Exp9), stated on 24^th
April 1997, that the plaintiff could no longer perform her job as a
senior court reporter, the plaintiff continued to work and
was
appointed a magistrate. I would want to believe that if the
plaintiff’s incapacitation was so severe, then she should have

retired in 1997 on medical grounds, which act I would also like to
believe would have us the claim for loss of earning capacity
some
certainty. As the situation is however, it is the finding of this
court that the plaintiff still has her earning capacity
and hence the
claim for pecuniary loss herby fails.

Of
course I should state that a court may properly award damages in
respect of anxiety about a reduction in a plaintiff’s expectation

of life following injuries received as a result of negligence,
provided the anxiety is not unreasonable and does not result from
the
plaintiff’s own lack of fortitude or resolution (see Gunde
v Msiska
1961-63 ALR Mal. 465, 475). However, as per the case of Davies
v Smith
(1958) Kemp & Kemp, 1 (referred in the Gunde
v Msiska
case) it is a requirement that there must be evidence that the
plaintiff’s expectation of life has in some way been affected
by
the injury. As already noted, in this instance the plaintiff never
proffered such evidence.

Having
made the above observations I now turn to the plaintiff’s claim for
“personal injuries at 8 percent incapacity.” Indeed
I must say
that in this respect that in an action based on the tort of
negligence resulting in physical injury, as in the present
case,
damages awarded in such actions are for pain, suffering, and loss of
amenities of life and also, at times, loss of earning
capacity and
life expectation (as per in McGregor
on Damages, 15^th
Edition, p. 855,).
Damages are not awarded separately for the personal injury and then
separately for pain and suffering. Indeed it is in view of
this that
I will address the claim for personal injury in the same context as
the claims for pain and suffering. In this regard,
it is the finding
of this court, having regard to the facts of this case that the
plaintiff should be awarded damages for pain
and suffering.

In
addressing the damages for pain and suffering, it should always be
borne in mind that as these aspects have no monetary value,
the
awards made have generally been described as being conventional.
That however does not mean that the awards made should be
at the
whims of the assessor. Indeed courts try to achieve general
uniformity and consistency by making awards within a wide spectrum
in
broadly similar cases. (See Wright
v British Railway Board [1938] A.C. 1173 AT 1177). In
essence then, the purpose of awarding damages is to compensate the
injured party as nearly as possible in monetary terms. Regarding
the
present circumstances, there has been any recent decisions made by
the courts, however looking at the broad spectrum the awards
made in
the recent personal injury claims, and bearing in mind the
plaintiff’s level of permanent incapacity and the inconvenience

that the plaintiff continues to suffer, as well as the duty of care
that the defendants owed the plaintiff, I thought that an award
of
K700 000 would be fair compensation.

Finally,
there is the plaintiff’s claim for medical expenses. It was held In
Shearman
v Folland
[1950] 2 K.B. 43, that a plaintiff may recover, as part of his
special damages, any medical or similar expenses, which he has
reasonably incurred as a result of his injury, and that his
prospective expenses should be estimated as accurately as possible
and awarded as part of his general damages. However, the expenses
must be reasonable in the sense that the goods or services paid
for
are reasonably necessary to ameliorate the plaintiff’s condition
and that the cost should not be excessive (see Cunningham
v Harrison
[1973] 1 Q.B. 942 as compared with Pitt
v Jackson
[1939] 1 All E.R. 129). Of course it is noted that medical expenses
per se have to be specifically pleaded, without which an award
can
not be made by a court. In this instance there were no pleadings
regarding the medical expenses. However, considering the fact
that
the plaintiff continues (and shall continue for the rest of her life)
to buy medication to alleviate her discomfort, it would
have been
difficult for her to predict how much she would have had to spend on
medication, at the time of filing the statement
of claim. Indeed I
would want to believe that the purchase of the drugs would have to be
considered as prospective expenses and
that should be awarded as part
of general damages for pain and suffering. In this regard, it was the
plaintiff’s evidence that
she has been spending an average of K1
000 per month to buy milk and magnesium trisilicate to alleviate her
stomach problems, which
translates to K108, 000, which I would
believe is reasonable and I would award her the same. At the same
time the plaintiff also
informed the court that she will still need
to continue to buy the medication for the remainder of her natural
life and that the
current cost of the medication is now at K1 640 per
month (as per Exp2). Since this involves the plaintiff’s future
incapacity,
the damages would have to be calculated based on the
multiplier method, with regard indeed being had to inflation (see
Cookson
v Knowles
[1979] A.C. 556).

The
starting point for the multiplier is the number of years during which
the loss, represented by a multiplicand, is likely to
endure, and
thus typically, the remaining period of the plaintiff’s working
life. Indeed, it was held by the House of Lords in
Pickett
v British Rail Engineering Ltd
[1980] A.C. 136 that damages are to be awarded for the whole period
of the plaintiff’s pre-accident expectancy of working life

expectancy, with a deduction only for the living expenses which the
plaintiff would have incurred during the “lost” years.
The figure
derived for the working life expectancy is reduced to account not
only for the elements of uncertainty contained in
the prediction (for
example normal sickness, redundancy and unemployment), but more
importantly also for the fact that the plaintiff
a lump sum which
she/he is expected to invest (as per Taylor
v O’Connor
[1971] A.C. 115). In the present instance the plaintiff told the
court that she has 21 years until she retires and asked the court
to
award her damages to make which will make provision for her
medication for those years. However, it must be noted that the
plaintiff is currently 49 years old and that just like everyone she
faces life’s uncertainties. At the same time, the court did
also
take into account the fact that the plaintiff will get a lump sum.
Thus having taken into account all these factors, the court
adopts a
multiplicand of 12. In this regard then the plaintiff’s prospective
expenses will be calculated at K1640X12X12, which
comes up to K236,
160, taking into account inflation, which is currently at 12%, the
total sum comes to K264 499. 20, the court
awards to the plaintiff.

In
the final analysis then the plaintiff is awarded the total sum of K1,
072, 499. 00, as general damages for her pain and suffering,
incurred
expenses and prospective expenses. The plaintiff is also awarded
costs for the assessment hearing. The issue of costs
and
disbursements, which the plaintiff also raised in her submissions for
the assessment of damages, will be referred to a taxing
master for
taxation, if not agreed.

Made
in Chambers this……day of……...………………………2007

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR