Busulwa & 2 Others v Kakooza (Civil Suit 11 of 2020) [2024] UGHC 1182 (1 October 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CIVIL SUIT NO. 11 OF 2020

1. BUSULWA DAN

2. KIWALABYE PETER $\mathsf{S}$ ......................................

3. MBOGO ISAAC

### **VERSUS**

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KAKOOZA JAMES....................................

#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK 10

## Judgment

The plaintiff's claim in the instant case is for; a declaration that the defendant is liable for the negligent and reckless driving, an order for special damages, general damages, exemplary damages, loss of earnings and costs of the suit.

#### Brief background: 15

It is the plaintiff's case that on 27th October, 2018 along Masaka Road, the defendant while driving Motor Vehicle Registration No. UAZ 191M V8 negligently and recklessly knocked the plaintiffs causing grievous bodily injury. That as a result the 1st plaintiff's leg was amputated and he has suffered permanent incapacitation, underwent operations and is still undergoing treatment which is costly and suffered mental anguish. That the defendant did not visit him at all and the plaintiffs contend that the accident was caused solely by the negligence of the defendant.

The defendant denied the allegations in the plaint and averred that the accident, injuries and losses sustained were as a result of the plaintiffs' own negligence.

### Issues:

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- 1. Whether the defendant negligently or recklessly caused the accident that resulted into bodily injuries on the plaintiffs? - 2. Whether the plaintiffs are entitled to the remedies sought?

#### Representation: 30

Counsel Magola Mariam appeared for the plaintiff.

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The suit proceeded exparte against the defendant who only filed his Written Statement of Defence and failed to file his witness statements even when his counsel were severally informed to do so.

### Resolution:

Issue one: Whether the defendant negligently or recklessly caused the accident that $\mathsf{S}$ resulted into bodily injuries on the plaintiffs?

Counsel for the plaintiffs cited the case of Isaac Mawanda & 4 Others v. Tugumisirize & Another, HCCS No. 104 of 2017, where court stated that the burden of proof in an action for negligence is on the person who complains of negligence.

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And, Black's Law Dictionary, 11th Edition 2019, on the definition of negligence as; the failure to exercise the standard of care that a prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct

that is intentionally, wantonly or willfully disregardful of others' rights; the doing 15 of what a reasonable and prudent person would not do under particular circumstances, or the failure to do what such a person would do under the circumstances.

Counsel went on to submit that in the instant case the defendant's car was being driven over the prescribed limit and did not use any signals to warn the plaintiffs $20$ as well as driving the vehicle on the public road without due care and consideration for other persons using the public road hence causing an accident and bodily injury to the plaintiffs as evidenced by the Police medical Forms. That the ingredients of the tort of negligence were elucidated in the case of **Mugisha**

### Felix & 2 Others v. Attorney General, Civil Suit No. 237 of 2019 as follows; $25$

- 1. The defendant owed to the injured man a duty to exercise due care. - 2. The defendant failed to exercise the due care. - 3. The defendant's failure was the cause of injury or damage suffered by that man. - Counsel for the plaintiffs added that the road in the instant case was tarmac in 30 good repair, dry surface, straight and it was broad day time with clear weather thus the defendant was negligently driving that caused the accident. That the respondent was expected to exercise the standard of care that is reasonable by considering other road users. As such, once the possibility of danger emerging is - reasonably apparent and no precautions are taken by the driver, then he/she is 35 negligent.

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Further, that the rules of pleadings require that particulars of negligence be pleaded in the plaint. (See: Kebirungi Justine v. M/s Road Trainers Ltd & 2 Others, **HCMA No. 285 of 2003).** That in the instant case the particulars of negligence were pleaded in the plaint which are driving at high speed on sloppy terrain along

- the Masaka Road which is so deadly, failure to hoot and or otherwise give warning $\mathsf{S}$ to the plaintiff or other road users that his car was overtaking, failure to keep a proper lookout, failure to slow down, swerve or any other way control the vehicle so as to avoid collision, and driving at an unreasonable speed. That this was corroborated by PW2 who was an eye witness at the time the incident occurred. - And the plaintiff was well known to her. That while he drove on his motorcycle 10 with his passengers, he indicated that he was branching off to the right side, off Masaka road.

Counsel added that the sketch map showed that the motorcycle and motor vehicle were moving in the same direction and that when the plaintiffs were knocked they had indicated that they were branching off but the defendant recklessly drove and rammed into them. And this was indicated on the sketch map showing where the

- motorcycle and the pool of blood lay where the 1st plaintiff was injured from that resulted into the amputation of his leg. That the defendant did not have third party insurance at the time yet he is not exempt from having the same. - I have carefully considered the plaintiffs' evidence, exhibits tendered in court, the 20 submissions, the law and authorities cited therein to resolve this issue.

In civil cases, the burden of proof is on the claimant, and the standard required of them is that they prove the case against the defendant on a balance of probabilities.

Thus, the duty in this case is on the plaintiffs who sued in negligence to prove that the injury was occasioned as a result of the defendant's negligence. This $25$ 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).

In the case of Blyth v. Birminhgam Water Works Co. (1856) 11 Ex. 781 at P. 784, negligence was defined as the 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.

In Atto v. Waibi and Another, Civil Suit No. 26 of 2013, It was stated that;

"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

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driver, then he/she is negligent not withstanding that the road user or the other driver is in breach of some traffic regulations or even negligent. (See: Paulo Kato v. Uganda Transport Corporation [1975] H. C. B 119)".

In the instant case it was the plaintiffs' evidence that they were knocked by the defendant due to his over speeding and reckless driving without paying due regard $\mathsf{S}$ to the other road users. That the defendant's car was being driven over the prescribed limit and did not use any signals to warn the plaintiffs as well as driving the vehicle on the public road without due care and consideration for other persons using the public road. The sketch map as relied on by the plaintiffs indicated that the motor vehicle and the motor cycle were moving in the same 10 direction before the plaintiffs were knocked by the defendant. It was the evidence of PW2 that the 1st plaintiff indicated that he was getting off the road before the defendant knocked him and his passengers. And this led to injuries on the plaintiffs that resulted to the amputation of the 1st plaintiff's leg. The defendant in this case did not take any regard of the other motorists on the road so as to avoid collision. 15 Thus, breaching his duty of care to the other road users, that resulted into an

I find that the defendant was negligent or reckless in his driving which caused the accident that resulted into bodily injuries on the plaintiffs. This issue is hereby resolved in the affirmative.

Issue 2: Whether the plaintiffs are entitled to the remedies sought?

Counsel for the plaintiffs submitted that the plaintiffs are entitled to special damages as pleaded in the plaint. And that documentary evidence was adduced during trial to prove the same to a tune of UGX 12,500,000/ $=$ .

That the 1st plaintiff in this case had his leg amputated thus leading to loss of 25 earnings due to disability as such he is entitled to general damages. The plaintiffs also prayed for exemplary damages as against the defendants.

I have carefully considered the receipts attached by the plaintiffs in the claim for special damages. Whereas, the special damages were specifically pleaded, they

Borham-Carter $\mathbf{v}$ . $(See:$ also be strictly proved. must 30 Hyde Park Hotel [1948] 64 TLR).

In this case the plaintiffs majorly attached receipts that did not indicate who issued them nor the person to whom they were issued. Only two receipts in this case dated 03/1/2018 from Nakasero Hospital in the name of the 1st plaintiff for an amount of UGX 200,000/= and the one from Nkozi Hospital in the name of the $2^{nd}$ plaintiff in the amount of UGX 31,000/ $=$ were strictly proved. The rest of the amounts that lead up to UGX 12,500,000/= as claimed by the plaintiffs were not proved. I

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accident.

therefore award the plaintiffs special damages to a tune of UGX 231,000/ $=$ (Two hundred thirty one thousand shillings only).

The case of Kampala District Land Board & George Mitala v. Venansio Babweyana, Civil Appeal No. 2 of 2007, is well settled law on award of damages by a trial court.

It is trite law that damages are the direct probable consequences of the act $\mathsf{S}$ complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering. In the circumstances, this court awards general damages to a tune of UGX 25,000,000= for the injuries sustained by the plaintiffs, medical expenditure and loss of earnings; $20,000,000/=$ in favour of the 1st plaintiff and 5,000,000/= for the 2nd and 3rd plaintiffs. 10

Counsel prayed to be awarded punitive damages. In the case Obongo v. Municipal council of Kisumu [1971] EA 91, court held that;

"It is well established that when damages are at large and a court is making a general award, it may take into account factors such as malice or arrogance on the part of the defendant and this is regarded as increasing the injury suffered by the plaintiff, as, for example, by causing him humiliation or distress. L'amages enhanced on account of such aggravation are regarded as still being essentially compensatory in nature. On the other hand, exemplary damages are completely outside the field of compensation and although the benefit goes to the person who was wronged, their object *is entirely punitive".*

damages behind the award of exemplary The rationale is not to enrich the plaintiff, but to punish the defendant and deter conduct. from repeating his im $h$ An award of exemplary damages should however not be excessive. The punishment imposed must not exceed what would be likely to have been imposed in criminal proceedings, if the conduct were criminal. (See: Obongo Vs Municipal Council of Kisumu, (Supra).

It is my considered view from the conduct of the defendant in this matter and the facts of this case while bearing in mind the principles to be followed in an award of punitive damages, that an award of UGX 2,000,000 is sufficient as exemplary damages.

I therefore, find that the plaintiffs in this case have proved their case as against the defendant on a balance of probabilities. Judgment is hereby entered in favour of the plaintiffs in the following terms;

- 1. A declaration that the defendant is liable for the negligent and reckless driving. - 2. Special damages to a tune of UGX 231,000/= are hereby awarded to the plaintiffs, - $\mathsf{S}$ - 3. General damages to a tune of UGX 25,000,000/= are hereby awarded to the plaintiffs. - 4. Exemplary damages to a tune of UGX 2,000,000= are hereby awarded to the plaintiffs. - 5. Costs of the suit are awarded to the plaintiffs. - I so order. $10$

Right of appeal explained.

OYUKO ANTHONY OJOK

**JUGDE** 15

01/10/2024