jz
(07)
IN THE SUPREME COURT OF ZAMBIA —- SCZ JUDGMENT NO. 24 OF 2014
HOLDEN AT NDOLA APPEAL NO. 163/2012
BETWEEN:
MICHAEL MUKULA 418" APPELLANT
HIGHWAY TRANSPORT LIMITED 28° APPELLANT
AND
PAMELA NGUNGU CHIWALA 4ST RESPONDENT
JAMES MUTUNGU CHIWALA (Suing as next 2° RESPONDENT
friend of LUWI JAMES CHIWALA, an infant, and as
Administrator of the estates of NKISI CHIWALA, and
LENNY KASONGO)
Coram: Mwanamwambwa, Ag. DCJ, Chibomba, JS, and Lisimba, Ag. JS.
On 4" March, 2014 and on 5" June, 2014
For the Appellants: Mr. V. K. Mwewa of V.K. Mwewa and Company.
For the Respondents: Mr. K. Bota of William Nyirenda and Company,
JUDGMENT
Chibomba, JS, Delivered the Judgment of the Court.
Cases referred to:
Evelyn Hellen Mwambazi vs Wedson Chisha Mwambazi (1986) ZR 132.
Reuben Nkomanga vs Dar Farms International Limited, SCZ Judgment No.
25 of 2006,
Phillip Mhango vs Dorothy Nqulube and Others (1983) ZR 61.
Chimanga Changa vs Stephen Chipango Ngoma (2010) ZR, (Vol. 1) 208.
Shocked and Another vs Goldschmidt and others (1998) 1 ALL ER, 372.
Ram Auerbach vs Alex Kafwata, SCZ Appeal No. 65/2000.
The Mediana (1900) A.C. 113.
Rose vs Willey (1951) CA 221
No
3.
4,
5.
6.
7.
8.(508)
2.
10. Litana vs Chimba and Attorney General (1987) ZR 26.
141. Konkola Copper Mines Plc and Zambia State Insurance Corporation
Limited vs John Mubanga Kapaya and Others (2004) ZR 233.
Duncan Sichula and Another vs Catherine Chewe (2000) ZR 56
Statutes referred to:
1. The High Court Act, Chapter 27 of the Laws of Zambia.
2. The Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws
of Zambia,
3. The Fatal Accidents Act, 1846.
Other Materials referred te
1. Charlesworth and Percy on Negligence, 12" Edition, Sweet & Maxwell,
London, 2010.
This is an Appeal against the judgment of the High Court at Kitwe in
which the learned Judge awarded the sum of K180,000,000.00 for pain and
suffering to the 1* Respondent and K10,000,000.00 to Luwi James Chiwala
for pain and suffering and the sum of K7,000,000.00 to the estate of each
one of the two children who died in a road traffic accident. (The above
figures were before rebasing of the Kwacha).
The history of this matter is that the 1 Respondent and her three
children were passengers in the 2™ Appellant's bus which was driven by
the 1% Appellant. The bus was involved in a fatal road traffic accident in
which two of the three children died as a result of the fatal injuries that they
sustained. The 1 Respondent was severely injured and her right arm hadJ3
(509)
to be amputated. She had to undergo several surgical operations. She also
sustained several multiple injuries. She was first admitted in Kabwe
General Hospital together with her son, Luwi, and were later transferred to
St. John's Hospital where they were both admitted.
Following this road traffic accident, the Respondents commenced this
action by Writ of Summons under which they claimed the following reliefs
from the Appellants:-
“(i) Damages.
(ii) Damages for loss of expectation of life of the deceased under the
Law Reform (Miscellaneous Provisions) 1967 Act and the Fatal
Accidents Act, 1846.
(ii) Special damages.
(iv) _ Interest.
(v) Further and other relief as the Court may deem fit.
(vi) Costs.”
The cause of the accident was alleged to be due to the negligence of
the 1 Appellant who was driving the bus at the time of the accident. The
particulars of negligence were:-
“4, Failure to keep any or any proper lookout or to observe in time or at
all motor vehicle Toyota Hilux Registration Number AAH 4138
belonging to one CLEMENT TEMBO of Lusaka, a third party, which
was ahead of the bus on the said road.(510)
2. Driving too fast in the circumstances.
3. Failure to properly judge the clearance distance between the bus
and the third party's motor vehicle,
4. Failure to apply brakes in time or to so steer or control the bus as to
avoid the said collision,
5. Driving the bus into the rear side of the third party's motor vehicle
and losing control of the bus and plunging into and falling off on the
roadside.”
The learned Judge received evidence only from the 1*t Respondent.
He then decided to order the closure of the case for the reasons reflected
at pages 9 to 10 of the Record of Appeal and can be summed up as “the
trend for unwarranted adjournments of cases and the resultant delays",
which the learned Judge felt ought to be arrested as both parties were
absent on that day.
As stated above, the learned Judge analyzed the evidence from the
4°* Respondent together with the Pleadings and found in favour of the
Respondents and entered Judgment in their favour. He then proceeded to
award the damages reflected above
Dissatisfied with the Judgment by the learned Judge, the Appellants
have appealed to this Court, advancing five Grounds of Appeal in the
Memorandum of Appeal. These are:-J5
(511)
The Honorable Trial Judge in the Court below erred in law and fact
when he proceeded and deemed the Respondents’ case as closed
and delivered Judgment on the basis of the Respondents’ lone
witness when both the Appellants and the Respondents did not
attend Court on the material date.
2. The Honorable Trial Judge in the Court below erred in law and fact
when having in the absence of both the Appellants and the
Respondents deemed the Respondents’ case as closed, he failed to
e make an Order and or indicate as to what had become of the
Appellants’ case.
3. Even assuming that indeed the Honorable Trial Judge was correct in
the manner he proceeded, he erred in law and fact when he awarded
to the 1** Respondent the sum of K180,000,000 for pain and suffering
as this was clearly contrary to and in breach of the principles upon
which damages for pain and suffering are awarded.
4, The Honorable Trial Judge in the Court below erred in law and fact
when he awarded special damages to the Respondents in the
absence of strict proof.
5. Generally the damages awarded herein to the Respondents were
excessive."
In support of Ground 1 of this Appeal which attacks the learned trial
Judge's decision to proceed and order the closure of the case and then
delivered Judgment on the basis of the Respondents’ lone witness, what
the learned Judge stated on page 10 of the Record of Appeal was recast.
This is that:-
"On 27" July, 2012 when the matter was to resume for continued trial none
of the parties were at Court although all had notice of the hearing date.(612)
There having been no good cause shown for the absence of the parties and
their advocates and having heard the evidence of one witness for the
Plaintiffs, | deemed the Plaintiffs to have closed their case and adjourned
the matter to this date for my judgment on the evidence adduced before
me. The reason for my decision is manifest from the long history of the
case which in my view is an unfortunate history. The trend for unwarranted
adjournment of cases and the resultant delays ought to be arrested."
It was submitted that although the Appellants totally agree that
unwarranted adjournments and the resultant delays in cases ought to be
arrested and quickly so, the action by the trial Judge in the current case
flies into the teeth of Order 35 of the High Court Rules (HCR).
It was submitted that the trial Judge on finding the absence of both
parties inexcusable, he ought to have struck out the matter for
non-attendance of both parties pursuant to Order 35 (1) of the HCR instead
of ordering closure of the matter and then proceeding to deliver Judgment.
It was submitted that Order 35 (1) of the HCR is mandatory and that
there is no proviso which could have allowed the learned trial Judge to opt
out of the provision and deliver judgment in the manner that he did.
In drawing an analogy, the case of Evelyn Hellen Mwambazi vs
Wedson Chisha Mwambazi' was cited in which we held that:-(613)
“Where a Plaintiff or Petitioner fails to appear on the date set for hearing,
the proper course under Order 35 (2) is to strike out the cause from the list,
itis not proper to dismiss the action."
It was submitted that the learned Judge, therefore, ought to have
struck out the matter from the active cause list instead of proceeding in the
manner that he did. That by proceeding as he did, the learned Judge
misdirected himself.
It was pointed out that Ground 1 goes to the root of this Appeal and
that Grounds 2 to 5 are argued in the alternative should the Court find that
the Court below was on firm ground to proceed in the manner in which it
did.
In respect of the rest of the Grounds, it was submitted that there is no
basis upon which the learned trial Judge could have come to such awards
of K180,000,000.00 for pain and suffering, K19,166,000.00 for medical
expenses and K7,000,000.00 each for loss of expectation of life in respect
of the two deceased children as there is no evidence on record regarding
the said claims.
It was contended that the awards clearly offend the principle of
awards of damages for pain and suffering and special damages as set out48
(514)
by this Court in Reuben Nkomanga vs Dar Farms International Limited”
in which we held that:-
"An award of damages for pain and suffering was to be calculated on a
weekly basis.""
Further, it was argued that the awards are also offensive to the
principle in Phillip Mhango vs Dorothy Nqulube and Others*
It was submitted that such evidence is lacking in this matter.
Therefore, that this appeal should be allowed with costs to the Appellants
and that a re-trial, before a different High Court Judge, should be ordered
The learned Counsel for the Respondent, Mr. Bota, also relied on the
Respondents’ Heads of Argument.
In response to Ground 1 of this Appeal and the reliance on Order 35
(1) and (2) of the HCR, it was submitted that in so far as there is no reason
on record as to any excuse for the Appellants’ absence from Court on the
trial date, the Court below was entitled to fault the Appellant and proceed
as it did. Citing the case of Chimanga Changa vs Stephen Chipango
Ngoma*, it was submitted that this Court considered a ground of appeal
similar to Ground 1 in which the appellant in the earlier case had contended(615)
that the Court below had erred in law in concluding the appeal without proof
of service of the notice of hearing on the appellant.
It was submitted that the Appellants’ failure to apply before the trial
court to set aside the judgment was fatal as the Appellant sat on its rights
and rushed to this Court unduly. Further, that there are no prospects of the
appeal succeeding at trial as this is a case in which the evidence on record
which the learned trial Judge reviewed, proved negligence on the part of
the Appellants and the injury on the part of the Respondents and that for
this reason, the Appellants ought not to be heard on its second ground of
appeal either.
It was submitted that under the Rules of Court, the learned trial Judge
was not bound to strike out the matter as striking out a matter is an option
which is not the only option. And that where the Court sees no good
reason for the absence of the defendant, it may proceed as the learned
trial Judge did and that in the current case, the learned Judge gave good
reasons and stated that:-
“There having been no good cause shown for the absence of the parties
and their Advocates, and having heard the evidence of one witness for the
Plaintiffs | deemed the Plaintiffs to have closed their case and adjourned
the matter to this day for my judgment on the evidence adduced before
me.”J10
(516)
It was further submitted that the learned Judge cited the case of
Shocked and Another vs Goldschmidt and others® in which, what is to
be considered in an application to set aside a judgment given after a trial
was propounded. It was submitted that therefore, this Appeal should be
dismissed with costs to the Respondent for want of merit.
We have seriously considered this Appeal together with the Grounds
of Appeal and the arguments advanced in the respective Heads of
Argument and the authorities cited therein. We have also considered the
Judgment by the learned trial Judge. We shall deal with Grounds 1 and 2
together as they are inter-related.
Grounds 1 and 2 of this Appeal raise the question whether or not the
learned trial Judge was on firm ground when he ordered the closure of the
case and proceeded to judgment delivery after hearing only one witness
without stating what had become of the Appellant's case as both parties
were absent from Court on that particular day.
The thrust of the Appellants’ arguments in support of the above
Grounds of Appeal is that the learned trial Judge ought to have struck out
the matter instead of proceeding as he did as what he did was contrary to
Order 35 (1) of the HCR.Jit
(517)
The thrust of the Respondents’ arguments in response to the
arguments in Grounds 1 and 2 of this Appeal is that the Court below was
on firm ground in acting as it did as the learned Judge was not bound to
strike out the matter as striking out the matter was not the only option
available to the Judge. Further, that the learned Judge gave reasons why
he proceeded as he did as no good reasons were given for the absence of
the Appellants and their Counsel from Court.
From the above arguments, the question is, did the learned trial
Judge err by proceeding as he did instead of striking out the matter
pursuant to Order 35 (1) of the HCR? For emphasis, Order 35 (1) of the
HCR is recast hereunder and provides as follows: -
“Where a civil cause on the cause list has been called, if neither party
appears, the Court shall, unless it sees good reason to the contrary, strike
out the cause out of the cause list.”
We have considered the provision of Order 35 (1), of the HCR. There
is no doubt that Order 35 (1) allows the High Court to strike out a matter for
non-attendance of both parties at the hearing. It is also our considered
view that the manner in which Order 35 (1) is cast does not at all take away
the other discretional powers of the Court.J12
(518)
In this respect, we totally agree with the submission by the learned
Counsel for the Respondents that striking out the matter was not the only
option that the learned trial Judge had in the circumstances of this case as.
the case was partially heard. Therefore, by ordering the closure of the
case and then proceeding to Judgment delivery, the learned trial Judge,
acted perfectly within his discretionary power. In this respect, we have had
recourse to Order 35 (3) of the HCR which provides that:-
“35 (3) If the plaintiff appear, and the defendant does not appear or
sufficiently excuse his absence, or neglect to answer when
duly called, the Court may, upon proof of service of notice of
trial, proceed to hear the cause and give judgment on the
evidence adduced by the plaintiff, or may postpone the
hearing of the cause and direct notice of such postponement
to be given to the defendant.”
Properly construed, Order 35 (3) of the HCR empowers the High
Court to proceed to hear evidence from a plaintiff where a defendant does
not appear or where no sufficient excuse for his absence is given and then
give judgment on the basis of the evidence adduced by the plaintiff. This is
the procedure which the learned trial Judge applied, albeit, the fact that
both the Plaintiffs and the Defendants were absent from Court on that day
as the Judge had received evidence from the Plaintiffs’ witness, PW1413
(519)
In any event, it has not at all been shown that the learned Judge
exceeded his powers by proceeding as he did. We are also fortified in so
holding by the record which speaks for itself and shows the lukewarm
attitude the parties approached this case. The parties and in particular, the
Appellants exhibited lack of interest towards timely disposal of the matter
as evidenced by the numerous adjournments which the learned Judge
granted at the instance of the parties both before and after PW1 concluded
her testimony. We counted more than fifteen adjournments. The record
shows further that in most cases, it was the Appellants and their Counsel
who were absent. Therefore, the parties themselves left the learned trial
Judge with no option other than to proceed as he did. The record further
shows that the parties, especially the Appellants, did not heed the warning
meted out on 22™ November, 2011, when the learned Judge observed as
follows:-
“Itis a pity that the matter continues to drag on without an end in stages. It
is also equally unacceptable for Counsel for the defendant to prefer to go
to IRC when we agreed to be here today. However, | will reluctantly grant
the adjournment for the very last time at the instance of both parties.
Plaintiff's counsel are directed to so inform their counterpart so that they
too come prepared on the next hearing date | am now setting.”
Despite this timely warning, on 3° February, 2012, the Appellants
and their Counsel were again absent. The record shows that the learnedJ14
(620)
Judge granted two other adjournments before he finally ordered the closure
of the matter and proceeded to Judgment delivery. The Order of 27" June,
2012, states as follows:-
“Court: In the absence of the parties and their advocates for no
apparent good cause | take it that the Plaintiffs have closed
their case. It was also incumbent upon them to serve notice of
hearing upon the defendant's advocates as per my order of 2
May, 2012. In the absence of the parties for no good cause, |
am adjourning the case for Judgment to 17 July, 2012 at
09.00 hours.”
Our firm view is that the learned trial Judge cannot be faulted for
proceeding as he did as that was within his power and he complied with the
procedure in Order 35 (3) of the HCR which we have recast in full above.
This was a partially heard case. As such, the Appellants cannot be allowed
to take advantage of the Respondent's absence on that day by insisting
that the Judge should have struck out the matter since both parties were
absent. We so state because if the Appellants had been in attendance on
that day, the learned Judge could have proceeded to receive their evidence
after ordering the closure of the Respondent's case. So, the Appellants
cannot be allowed to benefit from their own default.Jas
(621)
As to the procedure a party in the Appellants’ circumstances is
expected to follow, in the case of Chimanga Changa vs Stephen
Chipango Ngoma‘, we guided that a party must firstly apply before the
same Judge to set aside the Judgment. We put it thus:-
“We are mindful that the appellant was at liberty to apply to the Court to set
aside the judgment and seek leave to present its evidence but it never did
so... In the circumstances of this case, we cannot fault the trial Court for
having proceeded." (Underlining is ours)
In the case of Shocked and Another vs Goldschmidt and others®,
the Court in England gave good guidance and highlighted the different
considerations in dealing with applications to set aside a default judgment
and a judgment given after a trial in the absence of a defendant.
The Court put it thus: -
“On an application to set aside a judgment given after a trial, in the
absence of the applicant, different considerations are applied than on an
application to set aside a default judgment. In particular, the predominant
consideration for the Court was not whether there was a defence on the
merits but the reason why the applicant had absented himself and if the
absence was deliberate and not due to coincidence or mistake, the Court
would be unlikely to allow a rehearing. Other relevant_considerations
included the prospect of success of the applicant in the retrial, the delay in
applying to set aside, the conduct of the applicant, whether the successful
party would be prejudiced by the judgment being set aside and the public
interest in there being an end to litigation." (Emphasis ours).J16
(822)
In the current case, the Appellants have not explained their failure to
attend Court on the date in question. They also did not apply before the
learned Judge to have the Judgment in question set aside. They instead
rushed to this Court by way of Appeal.
Further, even assuming that the Appellants had applied in the Court
below to set aside the Judgment in question, we do not see any prospect
of such an application succeeding as the challenge is not on liability but on
quantum of damages awarded. Consequently, the Appellants cannot be
said to have disclosed any triable issues so as to necessitate a retrial. The
converse applies as the Respondents would further be prevented from
enjoying the fruits of the judgment in their favour. The manner in which the
Grounds of Appeal! have been couched in this Appeal also confirms that the
Appellants are not challenging the issue of liability as what is in contention
is the quantum of damages awarded by the learned Judge, which the
Appellants contend, are too high.
In the case of Ram Auerback vs Alex Kafwata® in which the Court
below ordered closure of the case after hearing only the respondent's
witness as the Appellant was absent, in disallowing the appeal based on
similar grounds and arguments like in the current case, we held thatJa7
(623)
litigants default at their own peril since any rights available as of
course to a non-defaulter are normally jeopardized.
We reiterate this position in the current case as the Appellants, by
their own conduct, jeopardized their case. For the reasons given above,
we find no merit in Grounds 1 and 2 of this Appeal.
e Before proceeding to resolve the rest of the grounds of Appeal in this
matter, there is one point that we wish to highlight. This is that the manner
in which Grounds 3, 4, and 5 of this Appeal were crafted, they attack the
quantum of damages awarded. However, to ably determine the issues
raised in these Grounds of Appeal, the circumstances under which the
accident in question occurred and which led to the awards complained of,
must be borne in mind. The evidence is both documentary and viva-voce.
e This evidence was to the effect that the 1‘ Appellant was over-speeding
and that despite protests from the passengers, he did not take heed; that
due to the short distance between the bus and the motor vehicle in front,
when he attempted to overtake, he hit into that motor vehicle thereby
causing the bus to career off the road and ending up on its side; the two
children who were passengers on the bus were crushed to death while theJ18
(624)
1* Respondent was severely injured and her right arm was crushed and it
had to be amputated while the surviving child was also injured.
In view of this clear evidence as outlined above and as found by the
learned trial Judge and as already stated above, there is no doubt that the
accident occurred as a result of the 1 Appellant's reckless or negligent
driving. This is the reason why we are of the firm view that a re-hearing
would not at all change these facts which proved negligence on the part of
the 1 Appellant and also established liability.
Ground 3 of this Appeal challenges the award of the sum of
K180,000,000.00 for pain and suffering. It is contended that this award is
excessive. That there was no evidence to support this award for pain and
suffering. And that the award is contrary to the principles on award of
damages for pain and suffering established by this Court in Reuben
Nkomanga vs Dar Farms International Limited” in which we held that an
award of damages for pain and suffering must be calculated on a weekly
basis. The Appellants did not argue the award of K10,000,000.00 to Luwi
for pain and suffering. The Respondents did not respond to the Appellants’
argument in support of Ground 3 of this Appeal.J19
(525)
We wish to point out from the very beginning that this area of award is
acknowledged to be very difficult. Halsbury, L.C., noted this difficulty in
The Median:
in which he stated that:-
“How is anybody to measure pain and suffering in moneys counted?
Nobody can suggest that you can by arithmetical calculation establish
what is the exact sum of money which would represent such a thing as the
pain and suffering which a person has undergone by reason of an accident.
But nevertheless, the law recognizes that as a topic upon which damages
may be given.”
The learned authors of Charlesworth and Percy on Negligence in
paragraphs 5-82, 5-84 and 5-86 at pages 373 to 375, also highlighted the
difficulties associated with assessing damages for pain and suffering. They
put it thus: -
“Any injured person is likely to suffer loss in many ways in which it is not
possible to measure in financial terms, such as pain, disability and the
reduced ability to derive pleasure from life. In order to attempt to achieve
restitution, which is the purpose of damages for personal injuries, the
Court must embark upon the wholly artificial exercise of placing a financial
value upon such losses...
Clearly in all cases where the body's integrity has been violated, resulting
in either temporary or permanent impairment, the injury by itself properly
attracts an award of damages...
Damages for pain and suffering are intended to provide reasonable
compensation for the claimant's actual and prospective bodily hurt,
including that which results from necessary medical care, surgery and
treatment. No perfect compensation can be given. The Court is not
estimating the price which the victim would have accepted asJ20
(626)
consideration for suffering the injuries sustained inevitably, monetary
compensation will fall short of the value placed by the victim upon the
injury to his mental and physical health...”
In Rose vs Willey’, Birkett, L.J., stated that:-
“The question for this Court is whether this figure was too wrong in the
colloquial phrase, so hopelessly wrong that it was the duty of the Court to
interfere with it.”
In Dunean Sichula and Another vs Cather
je Chewe® in which the
Respondent suffered severe paraplegic injuries as a result of a road traffic
accident, we stated that:-
“An appellate court should not interfere with an award unless it was clearly
wrong in some way, such as because a wrong principle has been used or
the facts were misapprehended or because it is so inordinately high or so
low that it is plainly a wrong estimate of the damages to which a claimant
was entitled.”
In discussing permanent injuries suffered by the 1 Respondent, the
learned Judge stated as follows:-
“| have considered the injuries sustained by the 1" Plaintiff which include
the permanent loss of the right arm, which requires replacement with an
artificial limb, and permanent scarring and facial disfigurement. The
injuries called for a number of surgical operations over a period of time. |
form the view that the 1* Plaintiff suffered a lot of physical pain and will
continue to suffer a lot psychologically from the said wounds, scars and
disabilities. For the 1 Plaintiff, find an award of K180,000,000.00 to beJ21
(627)
reasonable in the circumstances for pain and suffering. | accordingly
award the 1* Plaintiff that amount.”
We have considered the arguments by the Appellants under Ground
It is our considered view that the evidence on record established the
extent of the injuries which the 1 Respondent sustained. The learned trial
Judge put this as:-
“At the time of the accident, the 1* Plaintiff was aged 33 years. According to
the medical report dated 22" December, 2005, she sustained the injuries
particularized in the statement of claim. The report of 23" May, 2006 shows
that she had sustained a severely traumatized left arm which was then
disarticulated at the shoulder level in Kabwe. When she was transferred to
St. John’s Medical Centre in Lusaka, it was observed that the wounds in the
scalp, the thigh and shoulder were severely contaminated. On 16" and 22™¢
December, 2005, 5" and 24 January, 2006 and 16" February, 2006, she
underwent operative procedures to control sepsis and provide skin cover to
the wounds. Thereafter, infection was brought under control and healing of
scar tissue took effect.
As at 23" May, 2006, the Consultant Orthopaedic Surgeon assessed the 1°
Plaintiff as follows: -
4. Complete loss of the right arm from the shoulder point.
2. Partial loss of the right claricle.
3. Large irregular scar over right shoulder.
4. Large hypertrophic scars on the right side of the face and the occiput.
5, Scars from the right thigh.
The consultant's further impression was that the 1* Plaintiff had 70%
disability for the loss of the right arm, 15% disability for loss of right
handedness, 10% facial disfigurement, and 30% for total pain suffered during
the time of trauma and throughout her treatment period. The orthopaedic
technician at the University Teaching Hospital had recommended that she
acquires an artificial arm.”J22
(628)
We can only agree with the learned trial Judge that the extent of the
injuries and the treatment which the 1 Respondent had to go through
clearly shows that she must have suffered agonizing and excruciating pain
and suffering.
Therefore, as much as we agree with the principle in Reuben
Nkomanga vs Dar Farms International Limited’, that for pain and
suffering, a weekly rate should be applied, in the current case and in view
of the injuries suffered, we do not consider the sum awarded to be
excessive or unconscionable as the amount is not so outrageously high so
as to justify our intervention. We have noted that some of the injuries
suffered have resulted into permanent scarring, disfigurement and
permanent disability. The 1% Respondent had to undergo several surgical
procedures in Kabwe and Lusaka. She lost her entire right arm which had
to be amputated.
We also note that in Reuben Nkomanga vs Dar Farms International
Limited”, the permanent disability was 30%. In the current case, the 1"
Respondent suffered 70% disability for the loss of the right arm, 15%
disability for loss of right handedness, 10% facial disfigurement and 30%
total pain during the time of trauma and throughout her treatment period.J23
(629)
We are persuaded that these are the factors which the learned Judge took
into account in awarding the sum of K180,000,000.00 for pain and
suffering.
The learned Judge also took into account the principle that permanent
disability is a non-pecuniary damage which cannot exactly be quantified by
arithmetical means. He based his computation on judicial precedents
which he cited in his Judgment. He was on firm ground by doing so
Further, and as already stated above, we do not find the sum awarded to
be so inordinately high or so hopelessly wrong as to call for our
intervention. For the reasons given above, Ground 3 of this Appeal also
fails on account of want of merit. We dismiss it.
Ground 4 of this Appeal attacks the “special damages” awarded
amounting to K19,166,100.00 for medical expenses. The issue of the sums
awarded as damages to the clothing, lost cash and funeral expenses was
not argued by the Appellants as the submission centred on medical
expenses. The Appellants contended that the sum awarded was not
strictly proved as a special loss and that as such, the award offends the
principle in Phillip Mhango vs Dorothy Nqulube and Others’ in which we324
(530)
held that a party claiming special loss must do so with evidence that makes
it possible for the Court to determine the value of that loss with a fair
amount of certainty. The Respondent did not respond to Ground 4.
We have considered the arguments in support of Ground 4 of this
Appeal. Although we agree that special damages must be strictly proved,
we see no reason why we should fault the learned trial Judge for awarding
the sum of K19,166,100.00 under this head as medical expenses. In
assessing the sums awarded, the learned Judge stated as follows:-
“With respect to medical expenses, there can be no dispute, and | accept
that the 1° Plaintiff and LUWI received medical attention mostly at St.
John’s. The Plaintiffs exhibited eleven receipts for medical expenses
which add up to K6,979,000.00 plus an invoice for K12,187,100.00 to make a
total of K19,166,100.00, These expenses were not seriously challenged and
1 do not find any reason to doubt them. | accordingly award the Plaintiffs
the said sum of K19,166,100.00 in medical expenses.”
The above shows that the learned Judge considered the receipts and
the invoices produced before him. We cannot fault the learned Judge for
awarding the sums in question as the special damages were sufficiently
proved. We, therefore, find no merit in Ground 4 of this Appeal. We
dismiss it.
With respect to Ground 5 of this Appeal, the Appellants contend that
the damages awarded to the Respondents were generally excessive.J25
(531)
Regarding the award of K7,000,000.00 for each of the two deceased
children for loss of expectation of life under the Law Reform
(Miscellaneous Provisions) Act and the Fatal Accidents Act, it was
submitted that there was no basis upon which the learned Judge could
have come up with such an award as no evidence was adduced to support
the claim. We have considered the above submissions. It is our
considered view that the learned Judge cannot be faulted for making the
awards complained of as he properly directed himself and reviewed the
past awards. Among the cases that the learned Judge considered is the
Litana vs Chimba and Attorney General”
case which was decided 1987,
In that case, we guided that awards for loss of expectation of life under the
Law Reform (Miscellaneous Provisions) Act should be fixed regardless
of the age of the deceased
The other case cited is Konkola Copper Mines Pic and Zambia
State Insurance Corporation Limited vs John Mubanga Kapaya and
Others"’ which was decided in 2004. In the above cited case, we
increased the award for loss of expectation of life from K4,000,000.00 toJ26
(632)
K5,000,000.00, In making the award complained of, the learned Judge
stated that he had taken into account the fluctuations in the kwacha.
We also note that these were young children who were in School.
They had a future ahead of them. In our view, by taking into account the
depreciation of the Kwacha, the learned Judge cannot be faulted as this is
‘one of the factors the court must take into account in arriving at a sum to be
awarded under this head. Taking into account the depreciation of the
kwacha, the sum of K7,000,000.00 awarded in 2012 as loss of expectation
of life for each one of the two deceased children is not too excessive as to
call for our intervention. We find no merit in the contention by the
Appellants. Therefore, Ground 5 of this Appeal also has no merit. The
same is dismissed.
In summing up, all the five Grounds of Appeal having failed on
account of want of merit, the sum total is that this Appeal has wholly failed.
The sums awarded to the Respondents by the learned Judge are
confirmed and upheld.427
(633)
This appeal is therefore, dismissed with costs to the Respondents in
this Court and in the Court below to be taxed in default of agreement.
M-S7Mwa ramwambwa
e@ ACTING DEPUTY CHIEF JUSTICE
™M. Lisimba
e ACTING SUPREME COURT JUDGE