Atto v Waibi and Another (Civil Suit No. 26 of 2013) [2023] UGHCCD 114 (28 April 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## CIVIL SUIT NO. 26 OF 2013

ATTO FILDER....................................

### **VERSUS**

1. WAIBI ELIJAH

2. UMEME LIMITED....................................

JUDGMENT

$\mathsf{S}$

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# BEFORE: HON. MR. JUSTICE GEORGE OKELLO

# **Introduction**

This is a suit for special and general damages in a case involving an alleged 30 tort of negligence. In her plaint, the Plaintiff averred that on 25th January, 2012, while lawfully walking back home from Gulu Town to Pece Labour Line, within Gulu Town, the 1st Defendant, an agent and employee of the 2nd Defendant, who was driving motor vehicle Registration No. UAQ 692 35 W, belonging to the 2nd Defendant, knocked the Plaintiff from behind. The Plaintiff sustained injuries in the spinal cord for which she is to wear corset for the rest of her life. The Plaintiff contended, she suffered other injuries, for which she holds both Defendants liable. She pleaded res ipsa loquitur,

Hudrom

- contending, the Defendants have no defence. She also averred that the 1st $\mathsf{S}$ Defendant pleaded guilty to a Criminal charge of reckless driving and causing injuries to the Plaintiff and was convicted on his own plea and sentenced accordingly. - The 1st Defendant did not file written statement of defence but the second $10$ Defendant did. On being satisfied that there was due service of Summons and the Plaint, interlocutory Judgment was entered by this Court (Keitirima, J.) against the 1st Defendant on 12th March, 2015. - 15 On its part, the $2^{nd}$ Defendant (hereafter, 'UMEME') denied liability in all respects. First, it contended that the accident did not take place. Second, it averred in the alternative that, if it did happen, then the accident was not caused by UMEME's agent or servant or employee. Third, UMEME is not responsible for the Plaintiff's injuries. Forth, the 1st Defendant was acting on a frolic of his own and UMEME is not vicariously liable. UMEME 20 also denied that the 1st Defendant was convicted by the Magistrate's court. It further averred in the alternative that, if the accident did take place, the Plaintiff contributed to it. UMEME pleaded the alleged particulars of contributory negligence. UMEME denied the particulars of special damages, describing them as fictitious, a forgery and exaggeration. It 25 denied that the plea of res ipsa loquitur apply to the case. UMEME also denied responsibility for general damages alleged as having been suffered

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by the Plaintiff. The Plaintiff had even unnecessarily indicated the amount $\mathsf{S}$ as being Ugx 80,000,000, at the time. UMEME therefore, prayed for dismissal of the suit with costs. UMEME only submitted to this Court's jurisdiction.

#### 10 **Legal Representation**

When the file was placed before me on 19th October 2022, Ms. Alice Latigo of M/S Latigo & Co. Advocates appeared for the Plaintiff, as she had done before. Mr. Alex Kabayo from M/S Shonubi, Musoke & Co. Advocates, appeared for UMEME. The record however show that on prior occasions, many Advocates from M/S Shonubi, Musoke & Co. Advocates had appeared for UMEME, including Mr. Kabayo who did most consistently till the date of this Judgment.

### **Issues**

During the scheduling conference before my brother Judge, Hon. Justice 20 Vincent Tonny Okwanga, on 17th July, 2017, there were no agreed facts. The parties framed four issues, namely,

1. Whether there was an accident at the material time?

2. If so, whether the $1^{st}$ Defendant was solely responsible for the accident?

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- 3. Whether the $2^{nd}$ Defendant is vicariously liable for the action of the $1^{st}$ Defendant? - 4. The remedies available to the parties.

## The hearing

The Plaintiff testified and called three other witnesses, all heard by 10 Stephen Mubiru, J., between 28th February, 2019, and 3rd March, 2020, when the Plaintiff closed her case.

UMEME opened its defense on 29th April, 2022, before Alex Ajiji Mackay, J., calling one witness. The matter was adjourned by Court for further 15 Defense hearing. The Defendant did not call any further witnesses. When Learned Counsel Mr. Kabayo appeared before me on 19th October, 2022, he prayed for adjournment to have one more witness. I adjourned the case to 8th December, 2022 during which Mr. Kabayo submitted that UMEME would not be calling any further witnesses. He prayed to close the Defense 20 case, which court accepted. Timelines were then set for the filing of written submissions.

## **Written arguments**

Whereas the Plaintiff's counsel lodged submission on 13th February, 2023, 25 Learned Counsel for UMEME did not. Court granted more time for learned counsel to do so by 10th March, 2023. Any rejoinder would then be filed by

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- 17th March, 2023. Court fixed the case for mention on 23rd March, 2023. $\mathsf{S}$ On that day, Counsel for UMEME was absent and Court was informed by the Plaintiff's Counsel, Ms. Latigo, that learned counsel was indisposed but had requested for a week to lodge submissions. Court extended time for filing the Defense submission to 31st March, 2023. To-date it has not $10$ been done. This Court then fixed the matter for Judgment on 27th April. 2023 at 2:30 Pm. Judgment was not ready. Asked by Court why he had not filed submission, learned counsel informed court he has had a challenge. - In light of these developments, I have only considered the submission on 15 record, the evidence and the law, in my determination, without any prejudice to UMEME.

## Amendment of the issues

$20$ Having perused the pleadings and the material on record, I think the issues as framed ought to be sharpened, to address the matters before me. The issues at the scheduling require amendment, in light of how the parties canvassed the matters right from their pleadings. I am supported in this course by the provision of Order 15 rule 5 (1) of the Civil Procedure Rules, S.1 71-1, (CPR) which allows for the amending of issues. This is 25 supported by case law. See: Victoria Tea Estates Vs. John Bemba & another, SCCA No.49 of 1996; Odd Jobs Vs. Mubia [1970] E. A 476;

HLADDen.

$\mathsf{S}$

Bashir Ahamed Arain Vs. Uganda Kwegata Construction Ltd, HCCS No. $5$ 692 of 1999 (Musoke- Kibuka, J. (RIP).

The issues therefore, shall be;

- 1. Whether there was an accident involving the $2^{nd}$ Defendant's $10$ motor vehicle Reg. No. UAQ 692 W, and if so, whether the Plaintiff was the victim of the accident? - 2. If so, whether the $1st$ Defendant as the driver of the Motor vehicle Registration No. UAQ 692 W, was acting in the course of his employment? - 3. Whether the 1st Defendant was negligent? - 4. Whether the $2^{nd}$ Defendant is vicariously liable to the Plaintiff? 20 - 5. Whether the Plaintiff was contributorily negligent? - 6. What remedies are available to the parties? - 25

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#### $5$ **Resolution**

Issue I: Whether there was an accident involving the $2^{nd}$ Defendant's motor vehicle Reg. No. UAQ 692 W, and if so, whether the Plaintiff was the victim of the accident?

### 10 The accident and the victim

The Plaintiff (PW1), a 41 year old (as at 28th February, 2019) testified that she is a business lady dealing in produce at Oliya road, near Mega F. M radio station, within Gulu Municipality (now a city). It was on 25th May, 2012, at about 6:30 pm when she was from the business place heading back home to Pece Division, Tegwana sub-ward, Tegwana parish, Gulu Municipality. As she was moving along the left hand side of the road, leading from Labour Line, towards her home, a vehicle knocked her from behind. She collapsed and lost consciousness and only regained consciousness while at Lacor Hospital. When she regained consciousness, PW1 saw her husband and the driver who knocked her, Waibi Elijah (the 1st Defendant). The driver together with his colleague, a one Opwonya, and PW1's friend, Ajok Grace, are the ones who took the Plaintiff to Lacor Hospital in the vehicle that knocked her. PW1 described the vehicle as a pick-up, white in colour, with a writing on it, in the name of UMEME.

PW1 also stated that her husband reported the accident to Police and the vehicle was impounded, and the 1st Defendant arrested and detained. The

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- vehicle had electric wires on board. The matter was taken to (a $\mathsf{S}$ Magistrate's) Court where the driver was charged. The driver admitted knocking the Plaintiff, saying he was tired, while on his way to work. The driver was sentenced to a fine of Ugx 1,000,000, which he paid. - In cross examination, PW1 stated that on the day the accident occurred, $10$ it was about 7:00pm and it was not dark as it was dry season. She asserted that Ajok Grace (her friend and a fellow business lady) was an eye witness, but she was not the only person at the accident scene. PW1 also stated that the driver visited her at her home and told her, he was tired when the accident happened, and was on his way to work. She asserted 15 that the driver apologized.

PW3, a Police Officer of No. 32803, Cpl. Okao Jimmy, working as Traffic Officer stated that he responded to the accident scene around Labour line 20 area and drew a sketch plan of the area. PW3 cordoned off the scene. He found that Motor Vehicle No. UAQ 692 W, Toyota Hillux, had been moving along Acholi road towards Pece, when the driver made a turn along Green Academy Road, facing Labour Line. PW3 found skid marks. The vehicle hit the pavement. PW3 prepared the abstract of the accident report, indicating the victim as being Atto Filder and the motor vehicle as UAQ 692 W, 25 belonging to **UMEME**.

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$\mathsf{S}$ PW3 further stated that the vehicle was driven by Waibi Elijah, an employee of UMEME, Gulu Branch, who as at the time was resident within Tegwana, Pece Division. PW3 also testified that the motor vehicle had a third party insurance sticker No. 3000002565, and Policy No. 010/080/000914/2005 issued by UAP Insurance Company, dated $02/01/2012$ to $30/09/2012$ . PW3 also stated that the vehicle was $10$ inspected by an Inspector of Vehicles (IOV), IP Okumu James Nema, and a copy of the Report placed on the file.

In cross examination, PW3 maintained that he visited the accident scene on 25th January, 2012, at about 7:40 to 7: 50 pm, and visibility was still $15$ good. PW3 however conceded that he neither found the victim nor the plaintiff at the scene. He however clarified in re-examination that, after the accident, the driver reported at the Police Station and that is how PW3 came to know that the motor vehicle registration number UAQ 692 W, Toyota Hilux was the one that was involved in the accident.

PW4, Ajok Grace, a business lady at Gulu Main market, testified she knew the Plaintiff as a fellow business lady. PW4 was on her way home on the evening of 25th January, 2012. She saw the Plaintiff that evening, and saw the Plaintiff being knocked by a vehicle belonging to UMEME and it was at about 7:20 pm. According to the witness, the Plaintiff was walking on the left hand side of the road and was knocked from behind. PW4 said she saw

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- $\mathsf{S}$ the vehicle branching from Acholi road to Labour line road. She rushed to the scene and carried the Plaintiff, with the help of Eng. Opwonya, an employee of UMEME, who had been on board the vehicle together with the driver. The Plaintiff was taken to Lacor Hospital in the same vehicle. PW4 came to know the driver as Elijah. - 10

In cross examination, PW4 stated that the accident happened at about 7:30 pm and it was dry season so it was not dark yet. PW4 said she was walking ahead of the Plaintiff (before the accident) towards the same direction, and had stood to wait for the Plaintiff. It was a pick up vehicle, she said. PW4 got to know the occupants of the vehicle at the point when she and Eng. Opwonya were carrying the Plaintiff into the vehicle, as Eng. Opwonya called Elijah by name and the latter also called Eng. Opwonya by name. According to PW4, Eng. Opwonya stated that they were on their way to repair an electric pole at Labour Line. That is how PW4 came to know that Opwonya was an Engineer. According to PW4, although Opwonya and Elijah never showed their Identity Cards to PW4, the two were wearing UMEME uniform and had some wire aboard the vehicle. According to PW4, Elijah reported to Police where he was detained because he admitted knocking a pedestrian.

PW2, Opio John Peter, a Senior Orthopaedic Officer stated that in the year 2012, he was at Gulu Regional Referral Hospital in that capacity. The

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Plaintiff was referred to that Hospital from St. Mary's Hospital Lacor, $\mathsf{S}$ following a motor accident. PW2 clinically examined the Plaintiff and referred her for X-ray. The Plaintiff was subjected to X-ray whose result PW2 studied. There was a relapse of inter-vertebral bist at lumbar 5 and sacral. The cause was motor accident.

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Corroborating these witnesses, is PEX18, Abstract of Particulars of an accident involving a motor vehicle, dated 27th April, 2012 of Police Reference TAR 16/2012 issued at Gulu Police Station to Atto Filder. Therein, the motor vehicle registration number UAQ 692 W, Toyota Hilux belonging to UMEME Co, driven by Waibi Elijah, an employee of UMEME, is indicated as having gotten involved in an accident. The vehicle certificate of Insurance Number, and Insurance Policy Number, as described in the evidence of PW3, are captured.

Furthermore, PEX15, a to whom it may concern letter written on 24th July, 20 2012, and signed by Senior Orthopedic Officer, Opio J. Peter, of Gulu Regional Hospital, confirms that Atto Filder was involved in a road traffic accident and admitted in St. Mary's Hospital Lacor on 25th January, 2012, and diagnosed with Disc compression of the lumbar spine. She received treatment and was later referred to Gulu Regional Referral Hospital for 25 further management. There is also PEX1 which is Police Form 3 (Medical Examination of an Injured Person) signed by Regional Police Surgeon,

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Gulu, Dr. Madrama Charles on 26th April, 2012 (a day after the accident). $\mathsf{S}$ PEX1 shows that Atto Filder (the Plaintiff) was the victim of an accident that had been reported to Police at Lacor vide SD $15/25/01/12$ . According to the witnesses, the husband of the Plaintiff, a one Omony Christopher reported the accident on 26th January, 2012.

Furthermore, although not admitted in evidence, court takes judicial notice of certified record of the Proceedings in Criminal Case No. Gul-00-CR TO. 20 of 2012: Republic of Uganda Vs. Waibi Elijah, in the Chief Magistrates Court of Gulu holden at Gulu, before His Worship Barige Said, wherein the accused was stated to be an employee of UMEME, Gulu Branch. This was a statement by his surety when seeking to stand as such for the 1st Defendant, for bail purposes. The court record also shows that Atto Filder (the Plaintiff) testified as the first prosecution witness. There, she stated she was knocked by the accused (the 1st Defendant herein) on 25th January, 2012 at about 7:30 pm. The record also shows that the accused later changed his plea to that of guilty. In the statement of facts read by the prosecution, it was stated that the accused was the driver of motor vehicle registration number UAQ 692 W, belonging to UMEME Ltd, and that the vehicle knocked the complainant from behind. After the statement was read, the accused admitted the correctness of the facts, and was convicted on his own plea by the learned Magistrate Grade One (as he

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then was). He was cautioned on one count, and sentenced to a fine of Ugx $\mathsf{S}$ 1,200,000 or two years' imprisonment in default, on the second count.

Although the counts are not reflected in the record of the criminal proceedings, I think it is an omission which does not change the truth that the charges related to the accident involving the Plaintiff. The Plaintiff pleaded the nature of the charges as being reckless driving and causing grievous harm. She attaches the record to the Plaint. The convict was also ordered to pay Ugx. 1,000,000 to Atto Filder for the injuries suffered. Whereas the record and the Plaint does not state whether or not the order of compensation by the 1st Defendant was complied with, I believe he complied, otherwise the Plaintiff would have raised it.

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On its part UMEME called one witness, DW1 Ojara Morris, a Medical Doctor, an Orthopedic Surgeon. He at the time was attached to Gulu Regional Referral Hospital. The witness spoke about his area of specialty, and tried to discredit what PW2, a Senior Orthopedic Officer had testified about.

Although there is no particular number of witnesses required for proof of any fact, under section 133 of the Evidence Act Cap. 6, I find that the sole 25 witness for UMEME could not and did not purport to attest to the facts beyond his area of medicine.

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In the circumstances, the evidence adduced by the Plaintiff and her $\mathsf{S}$ witnesses sufficiently show that there was an accident involving the 2nd Defendant's motor vehicle, on 25th January, 2012, between 6:30 to 7:30 pm, in which the Plaintiff was the victim. The evidence was uncontroverted. Whereas I note some inconsistency regarding the exact 10 time the accident occurred, it appears minor.

Before this Court, PW1 stated in chief that the accident happened at about 6:30 and in cross examination stated it occurred at 7:00pm. Before the criminal court she had stated the time as being 7:30pm, and her witness before this Court (PW3) stated the accident occurred at 7:20pm. As 15 observed, the inconsistency between the witnesses are minor. It does not show deliberate untruthfulness at all. PW1 was not asked whether she had a watch on her. At any rate, the accident took PW1 unaware, meaning, even if she had had a watch, it would not have served any useful purpose as she had no chance of first checking the time, to be able to precisely 20 mark the time of the accident. The accident left the plaintiff unconscious. It is also not a natural occurrence in accident situations to first check the time a person had been knocked by a vehicle. I think, with respect, PW1 estimated the time, much later, after gaining consciousness, and I must say, fairly accurately, as she was on her way back home after work in Gulu 25 town.

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$\mathsf{S}$ Considering the evidence given by the Police Officer (PW3) who said he responded to the accident, and the evidence by Ajok Grace (PW4), a friend of PW1 and a fellow business lady, I think the time of the accident was about 7:30 pm. Be that as it may, the only thing I find relevant regarding time is the consistent testimony by the plaintiff's witnesses that, when the accident occurred, it was not yet dark. PW1 and PW4 explained that it was $10$ dry season. PW4 was even more specific that, being dry season and whereas the sun had already set, the moon had come out. PW4 and PW1's testimony about the sufficiency of light was further corroborated by PW3 (Police Officer) who stated that he was able to visit the scene at about 7: 15 40 to 7:50 pm, and that he drew a rough sketch plan of the accident scene. and visibility was still good. PW3, as shall be seen, later drew the final sketch plan the following day, 26th January, 2012.

It is trite law that grave inconsistencies and contradictions unless 20 satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies unless they point to deliberate untruthfulness, will be ignored. See: **Alfred Tajar Vs.**

## Uganda, EACA Cr. Appeal No.167 of 1969.

In this case, as observed, it is my finding that the apparent inconsistency 25 in the Plaintiff's evidence as to time of the accident is minor. The plaintiff has therefore adduced ample evidence to prove the first issue on the

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balance of probability, which the defense, with respect, did not rebut. The $\mathsf{S}$ evidence on record is clear. It stares one in the face as to the fact of the accident and show that the Plaintiff was the victim. The first issue is accordingly resolved in the affirmative.

## Issue 2: Whether the $1$ st Defendant as the driver of the Motor Vehicle $10$ Registration No. UAQ 692 W, was acting in the course of his employment?

The evidence on record show that the 1st Defendant was the driver of motor $15$ vehicle Registration No. UAQ 692 W. According to the witnesses, especially PW4, Ajok Grace, who was at the accident scene and witnessed the accident but also helped carry the Plaintiff to the $2^{nd}$ Defendant's vehicle, the 1st Defendant was wearing UMEME uniform, and the vehicle was carrying some wires. The wires, in my view, illuminates the nature of 20 services the $2^{nd}$ Defendant offers to the Ugandan public in the energy sector.

According to PW4, Eng. Opwonya (another employee of UMEME who was on board the vehicle and was also wearing UMEME uniform) told PW4 that they were on their way to repair an electricity pole in the area of Labour Line. This, in my view, is direct evidence by PW4 about what the witness heard from Eng. Opwonya. She also saw the uniform. Crucially PW4 was

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not controverted in this regard. Neither Eng. Opwonya nor the 1st $\mathsf{S}$ Defendant testified for the Defense, to deny what PW4 told Court. I therefore, accept her evidence.

Accordingly, I hold that the 1st Defendant was acting in the course of his employment, in driving the motor vehicle of the 2nd Defendant, when he caused the accident. The second issue is so resolved.

## Issue 3: Whether the 1st Defendant was negligent?

Negligence as a tort is actionable at the suit of a person suffering damage 15 in consequence of the defendant's breach of duty to take care to refrain from injuring him/ her.

In the celebrated dictum of Alderson B., in **Blyth Vs. Birmingham Water** Works Co. (1856) 11 Ex. 781, at p.784, negligence was defined as the 20 omission to do something which a reasonable man (and I think woman), guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man (and woman) would not do.

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In my view, negligence simply stated, is neglect of some care which we as humans are bound to exercise towards others.

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The ingredients of the tort of negligence were lucidly laid down in the *locus* classicus case of Donoghue Vs. Stevenson [1932] AC 562, a decision involving negligence of product liability nature. The principles there have shaped the development of the law of negligence, extending to other areas. The ingredients of the tort of negligence are; the defendant owed the plaintiff a duty of care; the defendant breached that duty of care resulting in damage on or against the plaintiff; and the defendant and no other is liable for the breach of the duty of care.

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- In the **Donoghue** case, another Law Lord, Lord Atkin explained the test of $15$ negligence lucidly but in summary, to the effect that it is the duty to take care when relating to other people who are so likely to be affected by the defendant's acts or omissions, breach of which gives rise to liability. - 20 Regarding motor vehicles, it has been held by the Ugandan Courts that a driver of a motor vehicle is under a duty to take reasonable care for the safety of other traffic on the road. Thus once the possibility of danger emerging is reasonably apparent and no precautions are taken by the driver, then he/she is negligent, notwithstanding that the road user (or the other driver) is in breach of some traffic regulations or even negligent. 25 See: Paulo Kato Vs. Uganda Transport Corporation [1975] HCB 119;

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# $\mathsf{S}$ Sekitoleko Joram Vs. Kato Edward & another, C. S No. 97 of 2017 (Ssekaana Musa, J.)

The duty is thus on the Plaintiff who sues in negligence to prove that the injury was occasioned as a result of the defendant's negligence. This requirement is in nearly all cases except where the doctrine of res ipsa loquitur applies. See: Halsbury's Laws of England, 3rd Ed. Vol 15, page 268, para 491.

Res ipsa loquitur is term in the common law of torts, expressed in the Latin, meaning "the things speak for itself". Once pleaded, negligence is inferred 15 from the very nature of the accident, in the absence of direct evidence on how the Defendant behaved. See: Manson (Uganda) Ltd Vs. Century Bottling Co. Ltd & 2 others, Civil Suit No.597 of 2001 (Yorokamu Bamwine, J, (as he then was)

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The rules of pleadings require that particulars of negligence be pleaded in the Plaint. In the instant case, the Plaintiff pleaded the particulars in her plaint. They are; driving speedily and recklessly in the circumstances; driving off road to the pedestrian side without ascertaining whether it was safe to do so; failing to break, stop, swerve, or in any way avoid knocking the plaintiff.

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PW1 testified that on 25th January, 2012, at 6: 30 pm, or thereabouts, she $\mathsf{S}$ was walking along the road, back home, but on the left hand side of the road. She was knocked from behind, collapsed and lost consciousness. PW4 who said she witnessed the accident testified in support of the Plaintiff (PW1), saying the Plaintiff was walking on the left hand side of the road when the vehicle hit her from behind. PW4 also stated she saw the 10 vehicle branching from Acholi road to Labour Line at a very high speed, before hitting the Plaintiff at the roadside. The Plaintiff was knocked from the left hand side of the road. PW4 was about ten metres away from the scene. She then rushed to the scene to rescue the Plaintiff. She said the road was not busy and the vehicles were not many. There were bicycles $15$ and motorcycles (which used to be common at the time along that road, as I understand the witness). PW4 stated the road did not have pavement at the time. PW4 had stood to wait for the Plaintiff so that they could walk together in the same direction. As the vehicle approached at a very high speed, from behind the Plaintiff, PW4 was unable to alert the Plaintiff. The 20 vehicle had lights on.

PW3 who visited the accident scene and drew the sketch plan of the area stated his findings. He found that motor vehicle UAQ 692 W, Toyota Hilux, had been moving along Acholi road towards Pece when the driver made a turn along Grace Academy Road, facing Labour Line. According to PW3, there was an element of speeding and recklessness because the driver

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$\mathsf{S}$ turned but could not make a clean turn to Labour Line where he wanted to face. The driver instead knocked a pedestrian at the extreme edge of the road. PW3 further testified that the skid map were continuous during the turn. The vehicle hit a pavement. PW3 drew a rough sketch map that evening but later drew the final sketch map the next day, 26th January, 10 2012.

PW3 also explained his sketch Map and it was admitted as PEX 17. In cross examination, PW3 explained the condition of the road at the time, saying, it was not a busy road. It was murrum road. There were no street lights. The point of impact, according to PW3, was at the edge, not the pavement, as there was no pavement. The road was not under construction either. PW3 deduced, the driver was over speeding, from the driver's failure to negotiate the corner (a turn). According to him, the vehicle turned into Labour Line road, and the accident was on the left hand side of the road. The vehicle went off the left lane and hit the edge of the road. PW3 however conceded some deficiencies in his report, saying he did not indicate the skid marks in PEX 17 and did not indicate that there were metallic particles and blood on the spot. In re-examination however, PW3 stated he saw tyre marks on the road surface. And it was the tyre marks that braked the most.

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$\mathsf{S}$ In my assessment of the evidence on record, I have studied the sketch of the accident scene (PEX17). It shows that the vehicle was coming from Acholi road and made a right turn to Labour Line Road. The driver kept left as he did the turn, but it was far left, right at the edge of the Labour Line road. It was not a smart turn, I must say. The Labour Line Road was six metres wide, sufficient for a good turn if the car was not in the overdrive 10 state. I can safely infer the driver did not slow down because if he had, the car would not have gone to the far left, hitting the edge of the road, which some witnesses unintelligently called it a pavement. It is a minor slip, in my view.

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In my view, if the driver was not driving too fast before the sudden turn, the vehicle would have fairly remained within at least the other half of the 6 metre wide road, while keeping to the left. The driver would have also properly maneuvered the turn. Given that it was murrum road at the time (Court takes judicial notice that Gulu has since become a real modern world City) there was no need for driving too fast, in the circumstances. It was also already evening, with the vehicle lights on, meaning the need to go slow. By his conduct, the 1st Defendant did not care to think that it was unsafe to over speed. Although he appears to have applied brakes, hence the tyre marks, as verbally described by PW3, it was too late to save the Plaintiff. A reasonable driver in the shoes of the 1st Defendant would have foreseen the possibility of the accident and would have behaved

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$\mathsf{S}$ differently as he/she approached the turn. A reasonable driver would not have also driven at a high speed on a murrum road.

Given the above, in my view, the 1st Defendant failed to exercise reasonable care in the circumstances. It is therefore, my conclusion that the 1st Defendant was negligent in the circumstances.

I hasten to add that, this is also a case where the doctrine of res ipsa loquitur applies with equal force. The doctrine aids the Plaintiff's case. I have however already found that there is credible direct evidence of PW4 (Ajok Grace) showing how the 1st Defendant behaved, that is, driving so fast, as he approached the turn to Labour Line Road. Even if there had been no such direct evidence, the doctrine would still apply. I accordingly hold that the 1st Defendant was negligent in controlling the 2nd Defendant's vehicle.

The third issue is accordingly answered in the affirmative. 20

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### $\mathsf{S}$ Issue 4: Whether the $2^{nd}$ Defendant is vicariously liable to the Plaintiff?

Vicarious liability is defined in Black's Law Dictionary, 9th Edition, at page 998 as the liability that a supervisory party such as an employer bears for the actionable conduct of a subordinate or associate, such as an employee, based on the relationship between the two parties.

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For a party to be held vicariously liable for the acts of another there should exist a relationship between the party and the person who did the negligent act, and the act ought to have been done in the course of the employment, and not when the person who did it was acting on a frolic of his own.

In Paul Byekwaso Vs. Attorney General, Civil Appeal No. 10 of 2002, it was held that a master is liable for tortuous acts committed by his/her servant in the course of the servant's employment. See: **Bagenda Dyabe** Tommy Vs. Pioneer Easy Bus Ltd, HCCS No. 36 of 2016 (Stephen Musota, J., as he then was).

In the present case, the pieces of evidence show that the 1st Defendant was an employee of the $2nd$ Defendant at the material time. He was driving the 25 2nd Defendant's motor vehicle, and according to PW3, in the course of his employment, as the 1st Defendant was driving with a colleague (Eng.

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Opwonya) to fix an electric pole around Labour Line. The 1st Defendant, as $\mathsf{S}$ noted, wore UMEME uniform. He was subsequently charged in the Magistrate's Court, and his colleague who works for UMEME, stood surety for him. The record shows the surety stated that the 1st Defendant was an employee of the 2nd Defendant. I therefore, find that the 1st Defendant was $10$ not on a frolic of his own when he caused the accident.

The Plaintiff, in my view, discharged the burden of proof, on the balance of probability. The evidential burden shifted to the Defendant to rebut it. Unfortunately, no evidence was adduced by the Defendants in this regard. I therefore, hold that the $2^{nd}$ Defendant is vicariously liable for the accident negligently caused by its employee, the 1st Defendant.

#### Issue 5: whether the Plaintiff was contributorily negligent?

In its written statement of defence, the 2nd Defendant averred that the 20 Plaintiff contributed to the accident. This was good compliance with the legal requirement for pleading contributory negligence. See: **Ayebale Mark** Bosco Vs. Muttico Technical Services Ltd & another, HCCS No. 55 of 2017 (per Boniface Wamala, J.)

In fact, in its pleading, the 2nd Defendant stated the particulars of contributory negligence to be the following; walking aimlessly and

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$\mathsf{S}$ recklessly, without due regard to other road users and to 'his' safety and; failure to take reasonable precautions to prevent the alleged accident.

The averment aside, the $2^{nd}$ Defendant did not adduce any evidence to prove the allegation of contributory negligence. So the claim that the Plaintiff was negligent and contributed to the accident, with respect, only remain on paper. On the contrary, I find ample evidence that the Plaintiff kept to her left side of the road and was knocked at the far end left side.

In Embu Public Road Services Ltd Vs. Riimi [1968] E. A 22, it was held that where circumstances of the accident give rise to an inference of $15$ negligence, in order for the defendant to escape liability, he/she has to show that there was another probable cause of the accident which does not connote negligence and the explanation for the accident was consistent only with an absence of negligence on the part of the defendant.

$10$

In the instant case therefore, the $2^{nd}$ Defendant failed to prove contributory negligence. The issue is resolved.

## Issue 6: Remedies available

I will consider the reliefs under specific heads as pleaded.

Hurto Dun.

#### $\mathsf{S}$ **Special damages**

The law is that special damages must be pleaded and strictly proved although they need not be supported by documentary evidence in all cases. as cogent verbal evidence can also do.

# 10 See: Kyambadde Vs. Mpigi District Administration [1983] HCB 44; Kampala City Council Vs. Nakaye (1972) E. A 446; Gapco (U) Ltd Vs. A. S Transporters Ltd, Civil Appeal No. 07 of 2007 (SCU) (Per G. M. Okello, JSC); Uganda Telecom Ltd Vs. Tanzanite Corporation [2005] 2 E. A 331, at page 341; John Eletu Vs. Uganda Airlines Corporation [1984] HCB 44. 15

In the Plaint, the Plaintiff claims for medical expenses of Ugx 1,799,700. Further, she claims for transport expenses of Ugx 2,060,000. She also claims for lost income from the date of the accident totaling to Ugx 10,000,000. There is an additional travel expense of Ugx 2,000,000 claimed.

I will consider each item seriatim.

The total special damages sought is Ugx 15,859,700. However, in her prayers in the plaint, the Plaintiff seeks for Ugx102, 259,700 under this 25 head of damages. In the written submissions, learned counsel for the Plaintiff prayed for Ugx 22, 399,700, saying the Plaintiff spent it. Counsel

HudoDen did not assist court in this regard. She left it entirely upon court, $\mathsf{S}$ understandably because, with respect, there was some challenge in proving the huge claims. Of course, it is not a desirable practice.

Beginning with the medical expenses, the Plaintiff adduced several receipts in evidence which I find credible. It is indicated as follows;

The Plaintiff spent money at St. Mary's Hospital Lacor Medical for admission (PEX4) Ugx 25,000; spent on crutches (PEX 5) Ugx 400,000; spent on lumber belt (PEX 6) Ugx 250,000; spent on consultation and drugs in Kampala (PEX7) Ugx 57,000; spent on consultation of 15 Orthopaedic surgeon (PEX8) Ugx 85,000; paid money at Kampala Hospital (PEX9) Ugx 78,200; paid further consultation of Orthopaedic surgeon (PEX 9 (B) Ugx 85,000; further made payment at Kampala Hospital (PEX9 (D) Ugx 151,500; paid for further consultation at Kampala Hospital (PEX9 (C) Ugx 15,000; paid for further consultation of Othopaedic surgeon (PEX 9 (E) Ugx 85,000; paid for further consultation of Orthopaedic surgeon (PEX9 (F) Ugx 100,000; paid fee at Gulu Independent Hospital in respect of Lumber spine (PEX 11) Ugx 34,500; paid money at Kampala Hospital for imaging (PEX 13) Ugx 45,000; and Payment for L/S Corset elastic (PEX 14) Ugx 250,000:

HAD Que

$\mathsf{S}$ The above totals to Ugx 1,661,200. I am satisfied these medical expenses have been strictly proved. I therefore, award the Plaintiff Ugx 1,661,200 as special damages.

The above award however does not cover the cost of drugs and x-ray. In the Plaint, medicines and x-ray alone, totals to Ugx 248,000. The Plaintiff $10$ was unable to adduce documentary evidence of how much she paid. I however note that the Plaintiff was recommended some drugs and gel, injections, x-ray, which she said she spent money on. I also note some amounts in various invoices, some of which are faint.

$15$

Given that not all purchases could be supported by receipts, yet they are expected, as detailed, I accept that the Plaintiff has cogently proved that she spent on drugs and x-ray. It was a necessary treatment and examination, given her condition. The oral evidence was unrebutted.

I therefore, award additional **Ugx 248,000** as special damages incurred on medical treatment and X-ray.

Regarding transport expenses, no receipts were adduced in evidence. But again, it is not disputed that the plaintiff travelled to various medical facilities within Gulu town and to a pharmacy. She also travelled to Kampala several times, as evidenced by several medical documents and

HUADOW

$\mathsf{S}$ receipts showing tests and consultations she received in Kampala. Kampala is not her normal place of abode, but Gulu. In her plaint, the Plaintiff lumped up claims for transport to Kampala on 15th February. 2012 to buy belt, for accommodation, and meals. She thus claims for Ugx 200,000. The Plaintiff also claims for transport, meals and accommodation $10$ for 21st February, 2012, of Ugx 200,000.

I am satisfied with the Plaintiff's claim in the above respects. I accordingly award Ugx 400,000 in that regard, as special damages, being the sum spent on transport, accommodation and meals while seeking treatment, and medical examination.

The Plaintiff also claims for Ugx 420,000 spent in respect of admission to the Hospital. She says she spent shs. 10,000 per day for two persons, covering breakfast, lunch and supper. I guess she meant herself and a helper, going by the evidence. I accordingly award only **Ugx 140,000** under this head as special damages.

I note that the Plaintiff also claims for Ugx 2,000,000 alleged as having been spent on car hire to Kampala, to UAP Insurance. The 2nd Defendant was said to have requested the Plaintiff and her counsel to travel, I suppose to consider a possible compensation by the 2nd Defendant's Insurer. I find that the vehicle hired is not stated. The amount is not pleaded. Although

HurtoQue

$\mathsf{S}$ the Plaintiff testified she travelled, and I believe her, there is no proof that she used a special hire, with counsel. Whereas I understand that not pleading the amount possibly was because the journey happened after the suit was lodged, the Plaint was not amended to include the amount. I think this can be taken care of under general damages or disbursements. I $10$ accordingly reject that claim as special damages.

The Plaintiff also claim for special hire for twenty times, to follow up matters at Police, each at shs.10, 000. The total claim is Ugx 200,000. I allow the claim as it is reasonable. The evidence shows the Plaintiff had to work closely with Police in the pursuit of justice.

The Plaintiff claims for money spent on Police Abstract Report. The Report is on record. The amount is pleaded. Such report is never issued for free by the Uganda Police. She claims for **Ugx 80,500**. I award it.

There is some claim for special hire of Ugx 1,860,000. This lacks support and is accordingly rejected.

There is another claim of Ugx 6,200,000 alleged as lost income. It covers loss of money on produce business at the time the Plaintiff was admitted 25 to Hospital, and during bed rest for a month. The claim is attractive but with respect, not proved. I reject it.

HhADQm.

There is a further claim of Ugx 2,400,000 allegedly spent on employing a $\mathsf{S}$ worker, to work in the Plaintiff's business. This claim is extraneous, farfetched and not proved. It is declined.

In the sum total, the Plaintiff is awarded total special damages of Ugx **2,729,700,** which is less than the amount claimed. I am emboldened by the view espoused in **Uganda Commercial Bank Vs. Deo Kigozi [2002]1 E. A 305 (CAU)** (per Twinomujuni, J. A (RIP) at p.314 where the Court of Appeal held that a Court is entitled to award a lesser figure than what was pleaded if it is satisfied that the lesser amount was proved.

## General damages

The Plaintiff claimed for general damages of **Ugx 100,000,000**. Learned counsel argued that the medical report shows that the Plaintiff's incapacity is at 40% and she will permanently use corset, having started right from the age of 33 when she was injured. I however find she was 33, which is a minor variation. Counsel argued that the Plaintiff was denied the ability to continue giving birth. In conclusion, Counsel invited Court to use its discretionary power to award general damages as it considers appropriate.

The law on general damages is that it is compensatory in nature and are 25 intended to make good to the aggrieved party as far as money can do, for the losses he or she has suffered as the natural result of the wrong done

HlutoQue.

- to him or her. See: Robert Coussens Vs. Attorney General, Civil Appeal $\mathsf{S}$ No. 8 of 1999; V. R Chande Vs. East African Railways Corporation (1964) E. A 78; Bank of Uganda Vs. F. W Masaba & Others, SCCA No. 3 of 1998. - According to Halsbury's Laws of England, 4th Ed. Vol. 12 (1) paragraph $10$ **812**, general damages are those losses, usually but not exclusively nonpecuniary, which are not capable of precise quantification in monetary terms. They are presumed to be the natural or probable consequence of the wrong complained of, with the result that the plaintiff is only required 15 to assert that such damage has been suffered.

However, in Kibimba Rice Co. Ltd Vs. Umar Salim, SCCA No. 7 of 1988, the Supreme Court held that evidence had to be led to prove claims for general damages for inconvenience, mental suffering and anguish.

Regarding the amount of general damages, it is in the discretion of the court, based on the circumstances of each case. See: Crown Beverages Ltd Vs. Sendu Edward, SCCA No. 1 of 2005. In Robert Coussens Vs. **Attorney General (supra)**, it was held that the measure of general damages is that sum that will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or

HaroQu.

reparation. See: Livingstone Vs. Ronoyard's Coal Co. (1880) 5. App. $\mathsf{S}$ **Cas 259** which was cited with approval by the Supreme Court of Uganda.

In considering general damages court may take into account factors such as malice or arrogance on the part of the Defendant and the injury suffered by the Plaintiff for example, causing him or her stress.

$10$

In the instant case, having reviewed the evidence on record, I find that the Plaintiff was admitted to Lacor Hospital for a week. She was subjected to many medical examinations both in Kampala and Gulu, including x-rays in her waist and thigh. She suffered pain and injury. There was a depression of her spinal cord. She was advised medically not to lift anything that weighs more than five kilograms. Her ability to further give birth was curtailed, yet she still wished to have more children beyond the three that God has gifted her prior to the accident. She was medically advised to refrain from enjoying her conjugal rights. As a result, her spouse found another woman. The Plaintiff is a very unhappy woman as she misses the special God given right and obligation as a wife towards her husband. She still suffers pain. The 2nd Defendant made her travel to Kampala but UAP did not compensate her. The Plaintiff's business has suffered as she cannot perform as she used to. She used to be an early riser and would participate in heavy work, related to her produce business, requiring a presence for long hours. The plaintiff still suffers pain to-date,

Herto Dun'

and uses corset to support her back. The Doctors advised she will use it $\mathsf{S}$ for the rest of her life.

In light of the above and many more, whose details I need not reproduce. on decency grounds, the Plaintiff is entitled to general damages. She has suffered immensely as a result of the accident. Learned Counsel did not address me on similar awards. I have taken trouble to lay my hands on past and recent awards.

$10$

The first case that comes to mind is that of **Robert Coussens Vs. Attorney**

**General (supra)**. There, a deep sea diver was shot and injured by agents $15$ of Government who mistakenly thought he was a thief. The injuries limited his capacity to practice his profession considerably and so was his income. He was awarded Ugx 50,000,000 by the High Court. Both the Court of Appeal and the Supreme Court did not interfere. The decision by the 20 Supreme Court was given on 3rd March, 2000. That is 23 years ago.

More recently in Akware Caroline Osilo Vs. Gaga Enterprises Ltd, C. S. No. 271 of 2011, Hon. Justice Bashaija K. Andrew J., awarded the Plaintiff Ugx 100,000,000 for injuries suffered in a road accident caused as a result of collision between the Defendant's bus and a third party vehicle. The injuries suffered there were severe which I will not go into but have considered. The Plaintiff continued to receive treatment which was

HUADQue

$\mathsf{S}$ costly. She also lost income, which reduced considerably. Even after discharge, she continued to experience pain and suffering. Her practice as an advocate of the High Court was affected. The award of Ugx 100,000,000 was made on $15$ th May, 2020.

## $10$ In Ayebale Mark Bosco Vs. Muttico Technical Services Ltd & another,

**C. S No. 55 of 2017**, where the Plaintiff, a boda boda rider had suffered severe injuries including broken limbs and other internal injuries, resulting into a long hospitalization, Wamala, J, on 22nd February, 2023 awarded Ugx 80,000,000. It was found that the fractures of the femur of the right lower limb and lower left knee could lead to permanent disability. $15$ The Plaintiff there was 26 years. His livelihood was shattered yet he had a wife and a four year old son.

Having considered comparative awards, although the facts are never identical, here, the Plaintiff was only thirty four at the time of the accident. She has three children. She wishes to have more progeny, going by her testimony. That dream has been shattered as she risks dying if she attempted, as medically advised. These are matters which money can never compensate. She stated, that her children who were studying in schools she believes are more superior within Kampala, had to return to 25 study from within home, as she could not and cannot afford schools in

Hhrodu $\mathsf{S}$ Kampala any longer, given her reduced ability to do business as before, due to the poor health condition.

Considering all the circumstances, I award the Plaintiff Ugx 100,000,000 as being fair and reasonable in general damages.

## **Interest**

The Plaintiff prayed for interest on special damages at commercial rate from the date of filing the suit. This was in the plaint.

15 Award of interest is provided for in section 26 of the Civil Procedure Act. Under section 26 (1) where the rate is agreed, court can award it. None was agreed here. Thus under section 26 (2) of the CPA, interest award is left to this Court's exercise of judicial discretion. See: **Kinyera George** Candano Vs. The Management Committee of Laroo Building Primary 20 School, HCCS No. 099 of 2013, (Justice Henry Peter Adonyo, J.)

The basis of the interest award is that the defendant had kept and used the plaintiff's money for his personal needs and therefore ought to compensate the plaintiff for it. See: Sietco Vs. Noble Builders (U) Ltd, SCCA No. 31 of 1995.

Hursou.

$\mathsf{S}$ See also: Harbutts' Plasticine Ltd Vs. Wayne Tank & Pump Co. Ltd (1970) 1 QB 447. There, the celebrated Lord Denning (RIP) observed "An award of interest is discretionary. It seems to me that the basis of an award of interest rate is that the Defendant has kept the Plaintiff of the use of his money, and the Defendant has had the use $10$ of it himself. So he ought to compensate the Plaintiff accordingly."

Further, in Masembe Vs. Sugar Corporation & another [2002] 2 E. A 434 **at 453,** Oder JSC (RIP) held that the award of interest by a Court was governed by section 26 (2) of the Civil Procedure Act which clothes the Courts with discretion as to what rate of interest to award.

It has been held that a higher rate of interest is usually charged where someone holds another person's money, to that person's detriment. Sietco

## Vs. Noble Builders (U) Ltd, SCCA No. 31 of 1995 (supra.)

$15$

In the present case, there is no basis for the rate of interest claimed by the Plaintiff, as this was not a commercial transaction. However, given the time value of money, which is affected by depreciation in shillings and inflation over the years, I award the Plaintiff interest of 15 percent per annum on special damages, from the date filing the suit on 14th August, 2013 till full payment.

Husser

$\mathsf{S}$ I also award interest of 8 percent per annum on general damages, from the date of this Judgment till payment in full.

Regarding costs, the Plaintiff prayed for costs of the suit, under section 27 of the Civil Procedure Act. I find no reason to deny the Plaintiff costs of the suit as it is not shown that her conduct, either prior or during the conduct of the suit, has led to this litigation which might have been averted. On the contrary, it is the Defendants' conduct which led to this litigation. See:

Devram Nanji Dattani Vs. Haridas Kalidas Dawda, 16, EACA 35.

15 In Donald Campbell Vs. Pollak, [1927] A. C 732, Lord Atkinson observed in these terms on the issue of costs.

"it is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a 20 judicial discretion, and if it be so, its exercise must be based on facts...if, however, there to, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of the sufficiency of those grounds for this purpose is 25 entirely a matter for the Judge himself to decide and the Court of Appeal will not interfere with his discretion in that instance."

Huto Qui.

In the circumstances, the Plaintiff is awarded costs of the suit. $\mathsf{S}$

In the final result, Judgment is entered for the Plaintiff against the Defendant and the following reliefs are granted;

- 1. Special damages of Ugx 2,729,700 - 2. General damages of Ugx 100,000,000 - 3. Interest on special damages of 15% per annum from 14th August, 2013 till full payment. - 4. Interest on general damages of 8% per annum from the date of Judgment, being 28th April, 2023 till payment in full. - 5. Costs of the suit to be taxed. - 15

Delivered, dated and signed in Court this 28th April, 2023

Haroan. 28/4/2023 George Okello **JUDGE HIGH COURT**

$\mathsf{S}$ Judgment read in Court

## 10:50am

28th April, 2023

## $10$ **Attendance**

Ms. Grace Avola, Court Clerk. Mr. Junior Akena, Counsel for the Plaintiff. The Plaintiff in Court. Mr. Kabayo Alex, Counsel for the Defendant.

15 There is no representative of the Defendant in Court.

Plaintiffs' Counsel: The matter is for Judgment. We are ready to receive.

20 2nd Defendant's Counsel: That is the position.

Court: Judgment read in open court.

$25$

Harolan. 28/4/2023 George Okello **JUDGE HIGH COURT**