Kabaco (U) Limited & 5 Others v Zawadi Services Limited (Civil Suit 247 of 2022) [2024] UGHCCD 88 (17 May 2024)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

### [CIVIL DIVISION]

### **CIVIL SUIT NO. 247 OF 2022**

#### 1. KABACO (U) LIMITED

2. MBABAZI HOPE

3. AMANYA IVAN =================== PLAINTIFFS

- 4. ATUHAIRE SHANIT - 5. AINE TRISHA - 6. ATWINE SHEILA (3rd – 6 th plaintiffs suing through their next friend, Mbabazi Hope (2nd plaintiff))

VERSUS

ZAWADI SERVICES LIMITED ======================= DEFENDANT

## **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

#### **JUDGMENT**

#### **Background.**

The 1st plaintiff sued the defendant for compensation for Motor Vehicle (Mercedez Benz tractor- head and Bhachu Trailer) registration No. UAQ 742L/UAQ 130 C, which was damaged following a motor accident involving the defendant's motor vehicle UBE 379Q, expenses for repair of damaged trailer, towing charges and value of goods lost.

The 2nd to 6th plaintiffs claim loss of dependency on the late Apollo Niwamanya and burial expenses against the defendant.

The cause of action arose on 11th day of March 2021 at Nakasongola along Kampala-Gulu highway, a bus belonging to the defendant was involved on a head on collision with the 1st plaintiff's motor vehicle resulting into the death of many people including Niwamanya Apollo who was the driver of the 1st plaintiff's vehicle and husband to 2nd plaintiff to the 3rd to 6th plaintiffs. The collision led to the destruction of 1st plaintiff's vehicle. The tractor head was written off while the trailer was which was also damaged was repaired. The 1st plaintiff's vehicle was carrying 300 crates of bear en-route to DRC and as a result of the collision the 300 bottles were destroyed.

### **Representation.**

Counsel Benson Tusasirwe represented the plaintiffs while Counsel Agaba Michael represented the Defendant.

At scheduling, parties agreed on 4 issues for determination by court.

- *1. Whether the collision between motor vehicle registration No. UBE 379Q and UAQ 724L/UAQ130C occurred as a result of the negligence of Dick Okello, the driver of UBE 379Q, the property of the defendant.* - *2. Whether if so, the defendant is vicariously liable for the acts of their driver Dick Okello.* - *3. Whether the collision was caused by the negligence of Niwamanya Apollo, the driver of motor vehicle registration No. UAQ 742L/UAQ130C, the property of the plaintiff.* - *4. What remedies are available to the parties.*

## **Submissions by counsel for the plaintiff.**

#### **Issue No. 1**

# *Whether the collision between motor vehicle registration No. UBE 379Q and UAQ 724L/UAQ130C occurred as a result of the negligence of Dick Okello, the driver of UBE 379Q, the property of the defendant.*

Counsel for the plaintiff submitted that the evidence of ASP Mirimu Ivan (PW3) is to the effect that the collision took place at 2:30 pm in the afternoon and when he visited the scene, he found that the two vehicles had crashed into each other and were lying off the road on the side of the vehicles going to Gulu, the direction which the 1st plaintiff's vehicle was heading. That this evidence was corroborated by PEX 24, the sketch plan for the accident scene which clearly shows that the defendant's motor vehicle was way out of its lane and on the side of the 1st plaintiff's vehicle from Kampala.

Counsel further referred to the police accident report PEX 22 which stated that the accident took place at 2:30 pm when visibility was clear and the section of the road was straight, In good repair and smooth. Similarly, the vehicle inspection report showed that the defendant's vehicle at the time of the accident had no dangerous mechanical condition which all proved that the accident was solely due to the reckless driving of the defendant driver who attempted to overtake another vehicle without taking into account other traffic from the opposite direction.

Counsel submitted that this is a clear case where the doctrine of *Res ipsa loquitur* apply. He referred to the book of Tort by Winfred Jolowiz 11th Edition page 100=101 and prayed that this court finds that the accident was caused by negligence and recklessness of the Defendant's driver one Dick Okello and answer the issue in affirmative.

### **Issue No. 2**

# *Whether if so, the defendant is vicariously liable for the acts of their driver Dick Okello.*

Counsel submitted that vicarious liability is based on the tort of another, although the person held liable actually did nothing wrong. That an employer/principal will usually be held liable for the acts and omissions of its employee/agent where such acts or omissions are committed in the course of employment.

Counsel referred to the case of **Asiimwe Alex Vs Maracha Sam & Another 102 of 2018,** where court was of the view that, to hold an employor liable three prerequisites must be satisfied; that is

- *1. There must be an employment relationship.* - *2. There must be a wrong doing committed by the employee* - *3. The act must have been committed during the course of employment.*

Counsel submitted that according to the evidence of Dick Okello in his witness statement, he affirmed his employment with the defendant and stated that on the fateful day of 11th March 2021, in the course of performing his said duty collided with the 1st plaintiff motor vehicle. It was also an agreed fact that the said Dick Okello at the time of the head collision was on duty as the defendant's employee, driving the said bus UBE 379Q, belonging to the defendant with passengers from

Moyo to Kampala and hence the defendant is vicariously liable for the actions of its employee.

### **Issue No. 3.**

## *Whether the collision was caused by the negligence of Niwamanya Apollo, the driver of motor vehicle registration No. UAQ 742L/UAQ130C, the property of the plaintiff.*

Counsel submitted that it is inconceivable that the collision would be caused by the driver of the plaintiff's vehicle UAQ 742L/UAQ 130C because from the evidence of ASP Mirimu Ivan (PW3) and PEX 24, the sketch of the accident scene, the final resting point of the vehicle after collision was off the road on the side for traffic from Kampala, where the 1st plaintiff's vehicle was coming from.

Counsel contended that it was the driver of the defendant's vehicle who invaded the lane of oncoming traffic from Kampala causing collision which forced the two vehicles off the road on that side.

## **Issue No. 4**

#### *What remedies are available to the parties.*

Counsel prayed for special damages of the 1st plaintiff totaling to 256,848,385/= being; loss of tractor head valued at 218,761,620/=, repair of damaged trailer at 5,580,000/=, towing charges of 7, 500,000/=, value of goods lost 24,864,765/= and charges for police report of 142, 000/=

For the 2nd -6 th plaintiff, he prayed for a total of 237,600,000/=, being loss of dependency and loss of income for the deceased Apollo Niwamanya.

Counsel prayed for general damages of 330,000,000/= for the 1st plaintiff who has been deprived of use of his motor vehicle and interest at 25%. He prayed for general damages of 100,000,000/= for the 2nd to 6th plaintiffs for the grief, pain, mental and physiological suffering they have suffered as a result of the death of Niwamanya Apollo who was their sole bread winner.

#### **Submissions by Counsel for the Respondent.**

Counsel for the Respondent argued issue No. 1 and 3 together and argued issue 2 and 4 separately.

#### **Issue No. 1 & 3**

- *1 Whether the collision between motor vehicle registration No. UBE 379Q and UAQ 724L/UAQ130C occurred as a result of the negligence of Dick Okello, the driver of UBE 379Q, the property of the defendant.* - *3 Whether the collision was caused by the negligence of Niwamanya Apollo, the driver of motor vehicle registration No. UAQ 742L/UAQ130C, the property of the plaintiff.*

Counsel submitted that negligence as a tort has been defined according to the case of **Blyth Vs Birmingham Water Works [1856] 11 Ex 78** where it was held that; -

*"negligence is the omission to do something which a reasonable man, guided upon consideration which ordinary regulate conduct of human affairs, would do or doing something which a prudent and reasonable man would not do".*

The ingredients of the tort of negligence are stated in the case of **Donoghue Vs Stevenson (1932) AC 562** as; -

- *i) The defendant owed the plaintiff a duty of care* - *ii) The defendant breached that duty resulting into damage on or against the plaintiff.* - *iii) The defendant and no other is liable for the breach of duty.*

Counsel referred to the case of **Paulo Kato Vs Uganda Transport Corporation (1975) HCB** where it was held that; -

*"A driver of a motor vehicle is under a duty to take reasonable care for the safety of another traffic on the road to avoid a collision. This duty involves taking all measures to avoid a collision. Once a possibility of danger emerging is reasonably apparent and no other precautions are taken by that driver, then the driver is negligent, notwithstanding that the other driver or road user is in breach of some traffic regulations or negligent".*

Counsel submitted that according to the evidence of Okello Dick the driver of the defendant vehicle (DW1) stated that he knows that he was on his good side when the accident happened and he was in the right lane from Gulu to Kampala but it was the plaintiff's driver who veered into his lane causing the collision. It was his further evidence that the bus he was operating had a speed governor and hence it is not true that he was driving at a high speed.

Counsel attacked the evidence of the sketch map and submitted that the same is inadmissible. He argued that the sketch map PEX 24 which the plaintiff seeks to rely on is incomplete and does not indicate the point of impact of the accident and PW3 ASP Mirimu Ivan could not indicate the point of impact of the accident as he admitted that he came to the scene of accident an hour later.

Counsel contended that the driver of the 1st plaintiff motor vehicle UAQ 742L/UAQ 130C had a duty to take reasonable care while on the road to stay on the look for oncoming vehicles and the same was breached when he veered into the Defendant's lane.

#### **Issue No. 2**

## *Whether if so, the defendant is vicariously liable for the acts of their driver Dick Okello.*

Counsel referred to the case of **Kateyomba Vs Uganda Securiko Limited (1977) HCB at page 170** which established tortious liability but contended that in the instant case, DW1 the only eye witness testified that the accident was caused by the plaintiff's driver who veered into the Defendant's lane thereby causing a collision.

#### **Issue No. 4**

#### *What remedies are available to the parties.*

Counsel submitted that much as the plaintiffs prayed for a number of remedies, they adduced no evidence to prove the same. No evidence was adduced to prove the value of motor vehicle. PW4 is not a valuer and his evidence cannot be taken to be accurate.

In relation the amount of beer damaged, there were many inconsistencies in the number of crates varying from 300 crates to 322 by PW1 and most of his evidence was hearsay evidence which cannot be admitted.

In regard to special and general damages, counsel submitted that much as the plaintiffs pleaded the same, they did not adduce cogent evidence to prove the same.

In rejoinder counsel for the Plaintiffs reiterated his submissions in chief.

#### **Analysis of court.**

**Issue No. 1**

*Whether the collision between motor vehicle registration No. UBE 379Q and UAQ 724L/UAQ130C occurred as a result of the negligence of Dick Okello, the driver of UBE 379Q, the property of the defendant.*

Negligence is defined in the case of **Donoghue vs. Stevenson [1932]AC 562** that;-

*"it's the omission of an action that a reasonable person would do or performing an action that a reasonable person would not do".*

While **Black's law Dictionary 11th Edition 2019** defines Negligence as;-

*The failure to exercise the standard of care that a reasonably 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 of what a reasonable and prudent person would not do under the particular circumstances, or the failure to do what such a person would do under the circumstances.*

Furthermore, in the case of **Yosef Lubega & Ors vs. International Ventures Limited H. C. C. S No.517 of 1991**, while addressing what amounts to negligence in accident cases such as the instant one it was held that;

"*First of all negligence as a tort is the breach of legal duty to take care which results in damage undesired by the defendant to the plaintiff. Thus its ingredients are;*

*a) A legal duty on the part of A towards B to exercise care in such conduct*

*of as falls within the scope of the duty.*

## *b) Breach of that duty.*

## *c) Consequential damage to B.*"

If the evidence in a civil case is such that the tribunal can say: We think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus the standard of proof is on a balance of probabilities.

In the instant case, from the evidence of PW3 ASP Ivan Mirimu told court that the defendant's vehicle UBE 379Q Isuzu bus being driven by Okello Dick while overtaking another car veered into the opposite lane and made a head on collision with UAQ 742L/ UAQ 130C Mecedzi Benz/ trailer which was going to Gulu while carrying crated of beer. This evidence is corroborated with the sketch map of the scene of the accident which was exhibited and marked PEX 24 and the accident report exhibited as PEX 22.

The defendant in a bid to rebut the plaintiffs' evidence adduced the evidence of DW1 Okello Dick the driver of UBE 379Q who testified that the accident was caused by the driver of the yellow truck (UAQ 742L/ UAQ 130C) who veered into his lane there by causing a collision.

In my analysis of this evidence, A critical examination of the sketch for the scene of accident shows that the defendant's car left its lane and came into the lane of the plaintiff's car. If indeed it was the plaintiff's car that veered into the defendant's lane, then it would be found there as its resting point after the accident, there is no explanation offered by the defendant as to why its car was found in the opposite lane. This corroborates PW3's evidence that the defendant's car while overtaking another car made a head on collision with the plaintiff's car which was coming from opposite direction.

Having established that the collision was caused by the defendant's car, I now have to establish whether the same was due to negligence of the defendant's driver. According to the evidence of PW3, he stated that the defendant was overtaking another car and caused a head on collision. It was the duty of the defendant's driver to ensure that he had enough space within which to overtake another car failure of which amounts to negligence. According to the inspection report of the defendant vehicle, UBE 379Q which was exhibited and marked as PEX 23, it showed that the defendant's car was in good condition without any dangerous mechanical condition which could have caused the accident.

In the case of **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 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".*

In the instant case the defendant's driver Dick Okello (DW1) failed to prove other factors causing the accident. It was the uncontroverted evidence of PW3 ASP Ivan Mirimu that the accident occurred at 2:30pm when visibility was very clear and on a straight, smooth stretch of the road with no obstruction at all. Further still, the motor vehicle of the defendant was reported to be in good state hence leaving no any other cause of the accident except for the defendant's driver's negligence.

It is therefore the finding of this court that the defendant's driver negligently caused the accident.

Issue No. 1 is resolved in the affirmative.

#### **Issue No. 2**

*Whether if so, the defendant is vicariously liable for the acts of their driver Dick Okello.*

**Black's Law Dictionary 11th Edition (2019)** defines vicarious liability as;

*"Liability that a supervisory party (such as employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties".*

According to the **East African Cases on the Law of Tort by E. Veitch (1972 Edition) at page 78**, an employer is in general liable for the acts of his employees or agents while in the course of the employer's business or within the scope of employment. This liability arises whether the acts are for the benefit of the employer or for the benefit of the agent.

To establish whether the employer is vicariously liable or not, the questions to be determined are: whether or not the employee or agent was acting within the scope of his employment; whether or not the employee or agent was going about the business of his employer at the time the damage was done to the plaintiff.

When the employee or agent goes out to perform his or her purely private business, the employer will not be liable for any tort committed while the agent or employee was a frolic of his or her own.

An act may be done in the course of employment so as to make his master liable even though it is done contrary to the orders of the master, and even if the servant is acting deliberately, wantonly, negligently, or criminally, or for his own behalf, nevertheless if what he did is merely a manner of carrying out what he was employed to carry out, then his master is liable *(see Muwonge v. Attorney General [1967] EA 17)*

In the instant case, the relationship of employer employee between the defendant and Dick Okello (DW1) the driver of the defendant's car was not contested and the same was an agreed fact. It is this court's finding that Dick oKello was an employee of the defendant at the time of the accident.

As to whether he was in the course of employment, it is an uncontested fact that the defendant is in public transport business whereby it transports passengers by bus from Kampala to other parts of the country. On the fateful day, DW1 was driving passengers from Moyo to Kampala and hence he was in the course of employment

Issue No. 2 is resolved in the affirmative.

**Issue No. 3.**

*Whether the collision was caused by the negligence of Niwamanya Apollo, the driver of motor vehicle registration No. UAQ 742L/UAQ130C, the property of the plaintiff.*

Having resolved issued No. 1 in the affirmative where court established that the accident was caused by the Defendant Driver's negligence, the same findings resolve this issue.

Issue No. 3 is accordingly resolved in the negative.

### **Issue No. 4**

### *What remedies are available to the parties.*

Having found that the defendant was responsible for the accident, the plaintiff is entitled to remedies.

The plaintiffs prayed for both special and general damages.

Special damages were defined in the case of **Mugabi John v Attorney General C. S No. 133 of 2002** as those damages that relate to past loss calculable at the date of trial and encompasses past expenses and loss of earning which arise out of special circumstances of a particular case.

The 1st plaintiff claimed special damages totaling to 256,848,385/= being; -

- loss of tractor head valued at 218,761,620/=, - repair of damaged trailer at 5,580,000/=, - towing charges of 7, 500,000/=, - value of goods lost 24,864,765/= - and charges for police report of 142, 000/=

Counsel for defendant contested the value of the Tractor head stating that PW4 indicated the he derived the value of the vehicle from asset financing document from DFCU which he failed to produce in court and he was not a valuer. On the other hand, counsel for the plaintiffs in rejoinder stated that PW4 Silver Mwebesa is a certified accountant working with Godgate Certified Public Accountant where they do asset valuation and that they computed the net book value of the 1st plaintiff's vehicle using depreciation rates from the time it was acquired.

It is this court's finding that it was not enough for the defendant to simply criticize the valuation report without filing a countering one. I found the evidence of PW4 given on oath cogent and believable and I take the same as the truth. The witness introduced himself as a certified accountant working with Godgate certified public accountants. The reference to a DFCU document does not mean that it was the basis of the valuation. It was simply among the documents reviewed as stated in the valuation report at page 34 of the Plaintiff's trial bundle marked as PEX 6.

In the view of the above, the special damages on the cost of the tractor head were pleaded and the same have been proved. Court upholds the value as prayed for.

On the issue of repair of the damaged trailer, this amount was not contested by the defendant. Court will accordingly uphold it.

In relation to towing charges, PW1 during cross examination stated that the towing charges from accident scene to Nakasongola was 3,500,000/= while from Nakasongola to Kasese was 4,000,000/= which was a longer distance. I agree with counsel for the defendant that the explanation given was not satisfactory in the variation in the amounts.

This court will reduce the towing charges from accident scene to Nakasongola to 1,500,000/=. The towing charges of 4,000,000/= from Nakasongola to Kasese is upheld. The total towing charges is allowed at 5,500,000/=

In regard to the cost of value of the goods lost, the plaintiff stated in the plaint that there were 300 crates full of beer that were destroyed. This is corroborated with the police report PEX 22 which put the number of damaged crates at 300. I have examined the Transit Document for goods, URA Invoice and receipt of Nile Breweries admitted and marked PEX 7(a) (b) (c) and confirmed that the said goods were indeed abode the truck. Each crate of beer cost 12 dollars which the brings the total cost in Ugandan Shillings to 13, 500,000/=

In relation to the cost of police report, much as PW1 stated that the same was paid in the bank, no receipt was attached to prove that which creates inconsistency and It is accordingly denied.

In view of the above, court awards total special damages of 243,341,620/= to the 1st Plaintiff

# **Special damages for 2nd to 6th plaintiffs**

The 2nd plaintiff prayed for special damages of 8,834,000/= as funeral and burial expenses. She also prayed for 237,600,000/= as loss of dependency by by 2nd to 6th plaintiffs.

The 2nd Plaintiff claimed that she was a widow and was officially married to the late Niwamanya Apollo. The Defendant contested the said marriage and stated that the same was not proven. It is my finding that even if the marriage was not proven, the 2 nd plaintiff (PW2) would be considered as a dependent on the deceased being the mother of his children.

Regarding the children, counsel for the defendant referred to the case of **Badru Kibalama Vs Attorney General HCCS No. 758 of 2001** which was also cited by **Hadijah Nakibule Vs Attorney General SCCA No. 11 of 1993** where it was held that; -

*"where no dependent child is produced in court, no award should be made in respect of such dependent unless the court is satisfied with the relevant explanation regarding the failure to do so. He contended that since none were produced and introduced in court, the said compensation should not be granted".*

However, the 2nd plaintiff tendered in court evidence of birth certificates and baptism cards of the children of the deceased Niwamanya i.e. Amanya Ivan, Atuhairwe Martha Shanita, Aine Trish and Sheilla Atwine. The defendant never asked court to see the minors and hence he cannot raise such a plea at submission level, the issue of the deceased Niwamanya's children was never an issue contested in court. In any case all their birth documents were produced in court showing Niwamanya as their father. They were not contested by the defendant.

Court accordingly approves that 2nd to 7th Plaintiffs as dependents of the late Niwamanya.

The figure of 8,834,000/= claimed by the 2nd plaintiff as burial and funeral expenses was not contested by the defendant, I find the sum claimed to be reasonable and befitting in the circumstances. She attached a copy of the budget for the burial and the same was admitted and marked as PEX 14 I will accordingly allow the same.

In regard to loss of dependency, the plaintiffs testified that the late Niwamanya Apollo was the sole bread winner aged 41 years drawing a monthly income of 1,300,000/= making it 15,600,000/= per year. Like the contention by counsel for the defendant, there is no documentary evidence to prove that the deceased was earning a net salary of 1,300,000/= per month. There was no contract, no pay slips or bank statement to guide court. Counsel for the defendant submitted that basing on research a driver like the deceased would be earning 500,000/=

In the circumstances, this court has no option but to estimate the appropriate monthly salary for a driver and put it at 600,000/=. this will translate into 7,200,000/= per year.

The deceased being 41 years at the time of death, and the retirement age in Uganda being 60 years. He was remaining with 19 years of productive labour.

This brings the would be total earnings at 60 to 136, 800,000/= minus the 20% he would have used on himself which would be 27,360,000/=. Therefore 136,800,000- 27360,000 coming to 109, 440,000/= as the total amount for loss of dependency.

Court will accordingly grant 109,440,000/= as loss of dependency for the 2nd to 6th plaintiffs.

The total special damages for funeral expenses and loss of dependency granted to the 2nd to 6th Plaintiffs is 118,274,000/=

# **The plaintiffs prayed for general damages.**

General damages are such as the law will presume to be direct natural probable consequence of the act complained of. In quantification of damages, the court must bear in mind the fact that the plaintiff must be put in the position he would have been in had he not suffered the wrong. The basic measure of damage is restitution. *See Dr. Denis Lwamafa vs Attorney General HCCS No. 79 of 1983 [1992] 1 KALR 21.*

The 1st plaintiff prayed for loss of use of the motor vehicle. He asked for 330,000,000/= with interest at 25% per annum as general damages.

The 2nd to 6th Plaintiffs prayed for general damages for grief, pain, and physical and psychological suffering they have been subjected to due to the death of Niwamanya Apollo. They prayed 100,000,000/= with interest at 25% per annum.

Basing on the evidence on record and circumstances of this case, Court will use its discretion to award general damages of 10,000, 000/= (Ten million) to the 1 st

plaintiff and 20,000,000/= (Twenty million) to the 2nd to 6th Plaintiffs. With no interest.

### **Conclusion.**

In the final result, Judgment is entered in favour of the plaintiffs in the following orders; -

- 1. A declaration that the defendant's driver caused the accident in issue. - 2. A declaration that the defendant is vicariously liable for the actions of its driver. - 3. The 1st plaintiff is awarded special damages of **243,341,620/= (Two hundred and forty million three hundred and forty-one thousand, six hundred and twenty shillings)** as special damages - 4. The 2nd plaintiff is awarded special damages of **8,834,000/= (Eight Million eight hundred thirty-four thousand shillings)** as burial and funeral expenses. - 5. The 2nd to 6th plaintiffs are awarded **109,4400,000/= (one hundred nine million four hundred forty thousand shillings)** as special damages for loss of dependency. - **6.** The 1st plaintiff is awarded general damages of **10,000,000/= (Ten Million Shillings)** - **7.** The 2nd to 6th plaintiffs are awarded general damages of **20,000,000/= (Twenty Million Shillings)** - 8. The plaintiffs are awarded costs of this suit.

Dated, signed, sealed and delivered by email on this **17 th** day of **May 2024**

EMMANUEL BAGUMA JUDGE.