Hamala & Another v Okware (Civil Appeal 1 of 1977) [1978] UGCA 15 (27 July 1978)

# IN THE W3K COURT OF APPEAL FOR UGANDA

# AT KAMPALA

(Coram: Saied, C. J., Nyamuchoncho,J. A., Ssekandi, J. A.)

## CIVIL APPEAL NO.l OF 1977

### BETWEEN

STANLEY HAMALA) CHARLES KIIRE ) .......... .. APPELLANTS

#### A N D

LORENCE OKWARE RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala (Butagira,J.) dated 23rd day of December, 1976

in

Civil Suit No. 186 of 1975

### Between

Lorence Okware ........... Plaintiff

and

Stanley Hamala . Defendants Charles Kiire )

# JUDGMENT OF COURT

## NYAMUCHONCHO, J. A,

This is an appeal against the quantum of damages. On the 24th December, 1974, the respondent was involved in a motor accident. He was travelling in the appellant's motor vehicle which overturned due to the negligent driving of the appellant's driver. The respondent sustained severe personal injuries, two of which were more serious. These were (.1) cerebral concussion and (2) simple fracture of the right clavicle. At the trial, liability was admitted. The only issue was the assessment of damages. By consent the medical report (exh. P.l) was put in. No evidence was led.

At the trial Mr. Orach, for the respondent, submitted that the respondent should be awarded Shs.100,000/- general damages.

He did not refer to any case. Mr. Kirenga, for the appellant, submitted that the plaintiff sustained two major injuries,cerebral concussion and fracture of the clavicle, that according to comparable awards for concussion such as Charles Nansera and Another -vs- Kasule, HCCS No.616/70, and Mariam Mukanyiginya Nalongo -vs- Fabiano Byewera, HCCS No.864/75 and comparable awards for fracture of clavicle, such as Veroneka Nakalule -vs- Juvenile Tindyebwa, HCCS No.70/6% a sum of Shs.20,000/- would be adequate compensation. The learned trial judge, after considering the awards in the cases referred to him and such other cases like Sirasi Kazungu -vs- Wilson Kigugu, HCCS No.949/71 in which the plaintiff was warded Shs.5,000/- for concussion, and Paskali Lugayo -vs- Akaya Mabirizi, HCCS No.589/72, in which the plaintiff was awarded Shs.7,000/- for dizziness, awarded the respondent Shs.95,000/- general damages. He relied heavily on Lawrence Koko -vs- Stanley Tamake 8g Charles Kiire, HCCS No.185/75, his own case which arose out of the same accident.

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The appellant, represented by Mr. Kirenga, has challenged the quantum of damages. He said that they were too high for the type of injuries which the respondent sustained. He again referred to Nansera1s and Nalongo's cases (supra) and the case of Major John B. Kamushana and 2 Others -vs- Swaleh Lwanga and Another, HCCS No.1404/75- In this case, the third plaintif, Namala Kamushana, a baby of three months, who sustained a closed fracture on the left clavicle which maliunited, was awarded Shs.4,000/-. He also cited the cr.se of Veroneka Nakalule (supra) where the plaintiff was awarded Shs.7,000/- for headaches and dizziness. He submitted that the respondent has not suffered any permanent effect as a result of the cerebral concussion to deserve such a high award. Relying on Uganda Cement Industry Ltd. —vs— Imelda Kawa, E. A. C. A. Civil Appeal No.51/75, he submitted that the award of Shs.95,000/- in this case was based on a wrong principle and is manifestly excessive. It should be reduced to

Dr. Msereko, for the respondent, agreed that uniformity in assessing damages is needed and that comparable awards in earlier cases would be a good guide. He said that the award in Koko's case was too high and out of tune with earlier awards. He conceded that the damages in this case should be reduced from Shs.95,000/- to Shs.50,000/-.

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The respondent sustained several injuries in the accident. He recovered from those injuries. The after effects of the cerebral concussion are mild. The fracture united well leaving only a deformity at the site of the union of the fracture. This is unsightly. There is some weakening of the right shoulder girdle. This is likely to remain with him for a long time.

These effects are not serious disabilities. The post concussional effects in Koko1s case, on which the learned trial judge relied, were much more serious than in this case. There the plaintiff suffered from bouts of consussion and forgetfulness and headaches. He got easily tired after standing, and occasionally had disturbance of vision. There was a change in his behaviour. Besides, the plaintiff suffered two fractures of the pelvis and had abrasions on the supra-scapula region and right forearm. I think this case was not a good guide. The learned trial judge, moreover, did not indicate how much he would have awarded for cerebral concussion alone. I am not suggesting that he should have awarded damages for each injury since the assessment of general damages should be by a single assessment arrived at by considering the total effect of all the injuries. See Paolo Cavinato -vs-Antonio Di Filippo, (1957) F. A, 535- I am of the view that the plaintiff's disabilities, pain and suffering in this case were not such as to warrant the award of Shs.95,000/- as general damages. This award was based on wrong principle and is excessive. On the other hand, <sup>I</sup> think that the amount of Shs.25,000/- suggested by Mr. Kirenga is too low. I have formed the view that the proper award would be Shs.35,000/-.

I would accordingly allow this appeal to the extent of reducing the general damages awarded to him from Shs.95,000/ to Shs.55,000/-. The judgment and decree appealed from should be amended accordingly. The respondent shall pay one-third of the appellant's costs in this appeal.

DATED at Kampala this 27th day of July,1978.

(Py Nyamuchoncho) //JUSTICE OF APPEAL

4 *\**

Mr. E. S. Kirenga for the appellant. Dr. Nsereko for the respondent.