IN THE HIGH COURT OF MALAWI
LILONGWE DISRICT REGISTRY
CIVIL CAUSE NO. 640/2004
BETWEEN
ELIAS KONDWANI .PLAINTIFF
-VS-
MUNORURAMA INTER BUS COMPANY .DEFENDANT
CORAM : T.R. Ligowe : Assistant Registrar
Nyirongo : Counsel for the Plaintiff
Baziliyo : Court Clerk
RULING
This matter comes for assessment of damages resulting from the injuries that the plaintiff sustained in a road accident due to the negligence of the defendants employee. The defendants were served with the notice of adjournment but did not put appearance and the hearing proceeded in their absence.
Only one witness, the plaintiff testified. It was his evidence that on 10th September, 2003 he was traveling on a business trip to South Africa in the Defendants bus. Before departure, the driver brought to the attention of the mechanic that the bus was not in good condition but he ignored and did not have a good look at it. The accident happened on the same day when they were in Mozambique at Moartize.
He lost consciousness on the spot and found himself in hospital where he regained it. He produced a police report from Mozambique police which unfortunately is in Portuguese, Ex P 1. A Monorurama official told him that they would only take Zimbabwe victims to Zimbabwe hence he was left with no means of transport as all he had on him, his money amounting to K60 000 and deposits from his customers amounting to K79 500 was stolen from him. To get home he begged from well wishers.
He came back to Malawi, went to police who told him to go to the hospital where he was admitted from 13th September 2003 to 22nd January 2004. He tendered two reports from the hospital which were marked EXP3 and EXP4 showing that he had sustained fracture of the olecranon left elbow joint. That rush pins were inserted to hold the fractured olecranon in situ after open reduction. And that his permanent incapacitation of flexion contracture of the elbow joint is assessed at 15%. During his stay in hospital no official from the Bus Company ever visited him. In addition the plaintiff also complained that he can no longer do any job because of the disability evidenced in EX P 4. He further says he has wasted 18 months and has also been paying for transport to and from the hospital where he has been going for checkups regularly.
He further contends his opportunity in education and house developments has been lost just as he has lost his business leading to his badly in debts hence needs to be compensated for the pain and miseries he has gone through.
A person who suffers bodily injuries due to the negligence of another is entitled to the remedy of damages. Such damages are recoverable for both pecuniary and non pecuniary losses. The principle underlying the award of damages is to compensate the injured party as nearly as possible as money can do it. See Cassel and Company v. Broome 1972 AC 1027.
In the present case, in addition to the cash the plaintiff lost, he also suffered non pecuniary losses in respect of which damages are recoverable under the major heads of pain, suffering and loss of amenities. As these can not be quantified in monetary terms by use of any mathematical formular courts use experience and guidance affordable by awards made in decided cases of a badly similar nature. See Wright v- British Railway Board 1967 AC 1773.
In her submission counsel for the plaintiff has cited several cases which she says are comparable to this case for this court to use in assessing the damages herein. Unlike in the cases cited before me, the permanent incapacity assessed at 15% in this case is not of the whole being but the limb, the elbow joint that was fractured.
I award the plaintiff K80 000 for pain and suffering. I also award him K139 500 being the special damages claimed. And the plaintiff gets costs of this action.
Made in chambers this day of November, 2005.
T.R. Ligowe
ASSISTANT REGISTRAR