IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE No. 185 OF 2005

BETWEEN

SANDRAM
LIGOWE.……….…………………………...PLAINTIFF

-AND-

MAXWELL
SOLOMON……….…………………..1^ST
DEFENDANT

MPHATSO
KANKHUMBA……………………….2^ND
DEFENDANT

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Kalasa
for the plaintiff

Kankhumba
(2^nd
Defendant)
(in person)

Msiska
Court Clerk

ORDER
ON ASSESSMENT OF DAMAGES

The
plaintiff’s action was for damages for pain and suffering and loss
of amenities. The issue of liability was already settled
by way of
default judgment, which was granted by the court on the 21^st
day of June 2005. in that judgment the plaintiff was awarded damages
for pain and suffering, damages for negligence, the replacement
value
of his damaged bicycle, the cost for obtaining a police report and
costs of this action.

The
action arose out of a collision which occurred between a vehicle
owned by the second defendant and driven by the 1^st
defendant and the plaintiff, who at that time was on his bicycle. The
accident took place on 20^th
day of March 2001, at Capital Hotel, in City Centre. It was adjudged
by the police on examination of the scene that the accident
was
caused due to the negligence of the first defendant who turned into
Capital Hotel at the same time the plaintiff was approaching
the
turn. Indeed it was clear in the situation that the plaintiff did
have the right of way.

Following
the accident, the plaintiff suffered some bruises to his head and
some blunt trauma to his right shoulder. The plaintiff
also had soft
tissue trauma. This was per the medical report that he tendered in
court. However in his evidence in court, the plaintiff
stated that he
also had suffered a severed ear and on open wound on his shoulder. In
the circumstances the court did rely on the
medical report, which I
should mention, did assess the plaintiff’s permanent incapacitation
to be at 25%.

The
defendant, who did attend the assessment hearing, did not dispute the
facts presented or indeed deny any liability in this matter.
All he
seemed to state was that he is not a man of great means as the
vehicle in question broke down, and that that was the end
of his Taxi
business. Briefly these were the facts.

Having
outlined the facts, I now turn to the issue of damages to be awarded
to the plaintiff. It was stated in McGregor
on Damages, 15^th
Edition, p. 855,
that in an action based on the tort of negligence resulting in
physical injury, as in the present case, damages are recoverable
by
the injured party. 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 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. I should
also
state that where the plaintiff intends to claim for special damages,
the same are required to be specifically pleaded.

In
the present action what falls to be assessed, in my view, are general
damages for pain and suffering and loss of amenities of
life, which I
believe are to be awarded due to the defendant’s negligence, as
such there is no need to also award the defendant
separate damages
for negligence. Having said that, it is noted that even though the
medical report stated that the plaintiff will
not be able to perform
his work as carpenter, however as it turns out the plaintiff was able
to get another job as a carpenter
which is paying him more than what
he was earning at the time of the accident so he has not been
affected in terms of earning capacity.

Having
taken all this to consideration and also the principle that the aim
of damages is to compensate the victim and not punish
the defendant,
it is the view of this court that an award of K50 000, would be fair
compensation for the plaintiff’s pain and
suffering and accordingly
the courts does award him that amount. In addition, the court also
awards the plaintiff costs off this
action.

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

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR