Kato Benson v Kalema Mike (Civil Suit No. 103 of 2020) [2025] UGHCCD 69 (13 June 2025)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# (CIVIL DIVISION)

# **CIVIL SUIT NO. 103 OF 2020**

KATO BENSON :::::::::::::::::::::::::::::::::::

## **VERSUS**

KALEMA MIKE **.....................................**

## BEFORE: HON. JUSTICE SIMON PETER M. KINOBE

## **JUDGMENT**

#### **BACKGROUND:**

The Plaintiff filed this suit claiming judgment against the defendant for;

- a) A declaration that the defendant caused the accident, - b) Special damages, - c) General damages, - d) Interest and - e) costs of the suit.

The facts giving rise to this suit are as follows;

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The Plaintiff, a *boda-boda* rider was riding his motorcycle when he was knocked down by the defendant who was driving a vehicle. The plaintiff suffered grievous harm as a result of the accident which resulted in an amputation of his left leg. He has gone through rigorous medical treatment and has been left permanently disabled. The defendant has not taken care of the defendant. That he had spent UGX 7,663,450 on treatment.

The defendant did not enter defense and the matter proceeded ex parte.

#### REPRESENTATION

The Applicant was represented by Byamugisha Gabriel while the Respondent was unrepresented.

## ISSUES FOR DETERMINATION

- 1) Whether the defendant is responsible for the accident in which the plaintiff was injured - 2) Whether the plaintiff is entitled to the reliefs sought

## DETERMINATION

I, having considered the plaint and evidence of the plaintiff, decide as herein. I note that the defendant did not enter appearance. I also note that service was effected on the defendant through substituted service to no avail. In this regard, court issued an order for the plaintiff to proceed ex parte.

The plaintiff presented three (3) witnesses namely Kato Benson (PW1), Mwebaze Slyvia (PW2), and Olwotho Nobert (PW3).

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The plaintiffs trial bundle had five exhibits that were adopted by court and marked as follows.

- a) PEX1- the plaintiff's identity card - b) PEX 2- police report - c) PEX3-receipt for artificial leg - d) PEX 4-hospital amputation form - e) PEX 5 -general receipt of accident report

PW1 was the plaintiff himself. His evidence is briefly that; -

- a) on the 29th of September 2016, while riding his motorcycle registration number plate UEL 302U Mahindra red in color with a passenger called Mwebaze Sylvia on the northern bypass around Kyebando round about, he was knocked down by the defendant who was driving motor vehicle registration number UAH 543 S Toyota corona white in color. - b) The accident scene was visited by the police who rushed him to Mulago and also made a police report. - c) He was hospitalized in mulago hospital where he underwent a leg amputation. - d) He remained on treatment for a period of two years until August 2018 - e) During the process of the accident and hospitalization he incurred enormous costs and expenses totaling to UGX 12,630,000 (Twelve Million Six Hundred and Thirty shillings only). - f) At the time of the accident, he was 37 years old and had motorcycle riding as his primary business earning an average of UGX 100,000 (One Hundred

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Thousand Shillings only) per day and UGX 3,000,000 (Three Million shillings only) per day.

- g) He has been rendered jobless and incapacitated for over five years now. - h) The defendant was solely responsible for the accident as clearly indicated in the police report. - i) The defendant compensated his passenger which shows he was responsible for the accident. - j) That he has a family of a wife and three children and he is the sole breadwinner, and he can no longer provide for them. - k) That the accident was caused by the defendant who was driving recklessly and carelessly and that he is therefore entitled to general and exemplary damages - PW2 was Mwebaze Sylvia whose evidence briefly is that; - a) They were knocked down by the defendant. - b) They were both badly injured and rushed to mulago hospital - c) She had both head and leg injuries, but the plaintiff's leg was seriously broken. - d) After getting treatment, he met with the defendant at police and was compensated with Uganda Shillings six hundred thousand (UGX 600,000) - e) The plaintiff's damage and injuries were so extensive that he was hospitalized for a long time - f) She believes that the accident was solely caused by the defendant.

PW3 was Olwotho Nobert who briefly stated that;-

a) The plaintiff's leg was amputated on the 5th November 2016

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- b) The plaintiff's incapacity was assessed at 70% that he made a medical report on the 8th October 2021. - c) Cause of action arising from negligence seeking for recovery of special damages of UGX 12,000,000 (Twelve Million Uganda Shillings), General damages, Interest on Special and general damages, costs for the suit.

#### The Law

#### Burden of proof

It is now settled law that it is the duty of the Plaintiff to prove his or her case on the balance of probabilities (see; Alison Mwebe Vs Ankole Original Traders and Anor HCT 05 CV-CS-0106- 2003). In civil matters, the burden of proof lies on he who alleges a fact and the standard is on the balance of probabilities, and not beyond a reasonable doubt as is in criminal case (see; Sections 101, 102, and 104 Evidence Act Cap 8). The standard of proof is made if the preposition is more likely to be true than not true. That is more probable than not (see; Miller v Minister of Pension [1947] ALLER 373).

#### Personal injury case

A personal injury case, or cause of action, is available to anyone who was injured as a result of another's negligent, reckless, or intentional act.

A personal injury entitles a person to pursue monetary compensation for their accident-related losses. This type of lawsuit is a form of legal action known as a tort. This action is unlike criminal cases that can lead to jail time or fines. Instead, the remedy for these tort claims is monetary compensation from the party responsible or their insurance company.

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Suffering an injury is not enough to lead to a successful personal injury lawsuit. You must first establish that you have a cause of action for negligence against the defendant. Proving negligence requires that you establish four specific elements. These elements include:

- The defendant owed you a duty of care - The defendant violated that duty - The violation led to your injuries - Your injuries resulted in measurable damages.

You can only recover monetary compensation by demonstrating that all four elements are met. This process starts with establishing that the defendant owed you a duty of care. If they did not, you would not be entitled to compensation. However, there are many duties that people owe to each other. For example, all drivers owe one another the duty to operate their vehicles safely. Meeting this element is more challenging in some cases than others.

It is not enough to prove the defendant owed you a duty of care. You must also establish that they failed to uphold it. Essentially, the defendant has breached the duty of care they owe you if you've suffered injuries due to their careless, reckless, or intentional actions. Examples of breached duties of care include negligent drivers causing a car accident or property owners failing to address dangerous hazards.

After proving this, the next step is to link that breach to your injuries. After all, a defendant can only be held accountable for the injuries they caused. This element is known as causation.

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Finally, your injuries must result in measurable damages. Even if all of the other elements are met, you are not entitled to compensation unless you've suffered damages. The damages that come with a personal injury claim can include medical bills, lost wages, pain and suffering, and loss of consortium, among other things.

# (See; Tort cases and Material by Hepple and Matthews 4th edition also; Nabirye and Anor Vs Mukasa Civil Appeal 23 of 2024, Alison Mwebe Vs Ankole Original Traders and Anor HCT 05 CV-CS-0106- 2003)

Negligence has been defined to mean *"an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would not do. It is a conduct, not state of mindconduct which involves unreasonably great risk of causing damages".* (See; *Kakooza Sharif vs. Bamwe Transporters Ltd vs. John Mugisha Civil Suit No. 519 of 2020* also; *Blyth vs. Birmingham Water Works (1856)11 Ex 78)*.

It was held in the case ofPaulo Kato vs. Uganda Transport Corporation (1975) HCB that;-

*"A driver of a motor vehicle is under a duty to take reasonable care for the safety of other traffic on the road to avoid collision. This duty involves taking all measures to avoid a collision. Once a possibility of a danger emerging is reasonably apparent, and no 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 even negligent."*

In the case of Baali Jackson vs. Mansons (U) Ltd. Civil Suit 37 of 2012, it was held that;

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Page **7** of **14** *"It is evident therefore that where an accident occurs, it is incumbent upon the defendant to show either there was a probable cause on his part or that the accident was due to circumstances beyond his control. This is because the law imposes a duty on a person who drives a vehicle on road to use reasonable cares to avoid colliding with other road users".*

*res ipsa loquitur*. The thing (facts) speaks for itself.

*res ipsa loquitur* is a rule of law in which negligence is presumed when the object or situation which caused injury or damage was under his or her control, and the damage could not have happened had negligence not occurred. Under this doctrine of law, an individual is assumed to have been negligent because he had exclusive control over the incident that caused the injury or damages. This assumption may be made even without specific [evidence](https://legaldictionary.net/evidence/) of [negligence,](https://legaldictionary.net/negligence/) as the accident, injury, or damages would not have occurred in the absence of negligence.

#### Elements of Res Ipsa Loquitur

Using the principle of *res ipsa loquitur* in a civil lawsuit requires the plaintiff to prove several specific elements existed at the time of the incident. These include:

- 1. The injury or damages sustained could not, under ordinary circumstances, occur without negligence on the part of the defendant. - 2. The object or occurrence that caused the injury or damages was within the defendant's exclusive control. - 3. The incident did not occur due to any voluntary action of, or participation by, the plaintiff.

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4. The defendant's explanation of non-negligence does not adequately explain the plaintiff's injury or damages.

PW1 and PW2 in their evidence together with PEX 2 showed that the accident was caused by the defendant. There was no evidence led by the plaintiff to prove that the defendant was negligent. However, in a situation where an accident is caused by the defendant and in the absence of an explanation as to the cause of the accident other than the inference of negligence court would have no reason to decide otherwise.

The defendant excluded himself from the conduct of these proceedings by not filing a defense that would have given an alternative explanation to the incidents that led to the accident. Perhaps the same would have acted as mitigating factors intended to show that the defendant did not breach his duty of care /negligent when the accident occurred. It is also possible that the plaintiff was negligent and contributed to his own injury.

In the absence of the defendant entering appearance and filing a defense in this matter I must find that the facts speak for themselves given that a driver owes a duty of care not to cause an accident.

I therefore find that that defendant breached his duty of care, caused an accident and occasioned the plaintiff injury relying on the doctrine of *res ipsa loquitur*. I find the defendant culpable of negligence and hold him liable for the injury caused to the plaintiff.

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## Remedies.

## Special damages.

Special damages in personal injury cases are items of pecuniary loss which can be quantified precisely like the cost of repairs, medical expenses, travelling expenses and loss of earnings from date of accident. They are incurred by the claimant between the date of the accident and the date of trial which can be specifically calculated (See The Uganda Civil Justice Bench Book 1st Edn January 2016 7.2.11 - 7.2.12 at page 205).

The plaintiff prayed for Special damages amounting to UGX 7,663,450 (Seven million six hundred sixty-three thousand four hundred fifty shillings only). With the following breakdown

- a) 1,000,000 Uganda shillings on amputation - b) 4,500,000 Uganda shillings on transportation and food - c) 2,000,000 Uganda shillings on medication - d) 163,450 Uganda shillings on police report

In his witness statement the plaintiff alluded to special damages of UGX12,630,000 (Twelve million six hundred thirty thousand shillings only). Parties being bound by their pleadings I will consider the figure in the plaint.

Special damages being compensatory, the plaintiff has the burden to adduce evidence proving them. In a case where medical expenses are incurred, the plaintiff has a duty to produce receipts of payments for the medical services if they were not free. And if there is loss of earnings the plaintiff must produce evidence of the lost earnings.

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In the this case, the plaintiff did not call any witness to prove his special damages.

I note that the plaintiff only attached two receipts as proof of expenditure marked as PEX3. from Mils orthopedic services for UGX 1,000,000 (One million Uganda shillings only) and a general receipt issued by police for the accident report for UGX 80,000 (Eighty Thousand Shillings only) marked PEX5.

I note that no other evidence has been laid to prove the alleged special damages of transportation, food and medication. I accordingly allow special damages of UGX 1,080,000 (One Million Eighty Thousand Uganda shillings)

#### General damages

The award of general damages is in the discretion of court, and is always as the law will presume to be the natural and probable consequence of the defendant's act or omission (See: *James Fredrick Nsubuga v. Attorney General, H. C. C. S No. 13 of 1993; Erukan Kuwe v. Isaac Patrick Matovu & A'nor H. C. C. S. No. 177 of 2003 also; Asimwe Alex Versus Maracha Sama & Scoul Corporation (U) Ltd Hct 102-2018)*

The party claiming general damages is expected to lead evidence to give an indication of what damages should be awarded on inquiry as the quantum (*See; Robert Cuossens v. Attorney General, S. C. C. A No. 8 of 1999; Ongom v. Attorney General, [1979] HCB 267).*

In the instant case, the Plaintiff prayed for general damages of UGX 800,000,000 (Eight Hundred Million Shillings only), his claim being based on the loss of his left leg and a medical report which assessed his permanent disability at 70 percent. He claims that he was 37 years old and had about 30 years of working age earning at least UGX 100,0000 (One hundred Thousand Shillings only) per day from the boda

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boda business which business he can no longer engage in since the loss of his left leg.

A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been if she or he had not suffered the wrong (*See:* Dr. Dennis Lwamafa VS Attorney General HCCS NO. 79/1983, [1992] 1 KALR *also; Charles Acire v. Myaana Engola, H. C. C. S No. 143 of 1993; Kibimba Rice Ltd. v. Umar Salim, S. C. C. A. No.17 of 1992).*

General damages are the direct probable consequence of the wrongful act of the Defendant complained of and include damages for pain, suffering and inconvenience and anticipated future loss.

In the assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered (See: *Uganda Commercial Bank v. Kigozi [2002] 1 EA. 305)*.

In Matiya Byabalema V. UTC Civil Appeal NO. l0/93, where there was an above knee amputation, with a permanent disability of 65%, UGX 9,000,000 (Nine Million Shillings only) was awarded by this Court. (also see; Ecta (U) Ltd Versus Geraldine

#### S. Namurimu& Anor Scca No. 29 Of1994 )

In the absence of evidence indicating that the plaintiff was earning UGX 100,000 (One Hundred thousand Shillings Only) per day as a boda boda rider and taking into account the 70 percent disability arising from the accident, the extent of injury suffered, the loss of a source of livelihood, I believe UGX 20,000,000 (Twenty million shillings only) would be a fair assessment of general damages.

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Section 27 (2) of the CPA makes provision for interest on claims for monetary payment. A just and reasonable interest rate, in my view, is one that would keep the awarded amount cushioned against the ever-rising inflation and drastic depreciation of the currency. In that regard I would consider interest at 6% per annum to be just and fair on the Special and general damages from the time of this Judgement until payment in full.

# Costs

Costs follow the event *(See; Francis Butagira vs. Deborah Mukasa Civil Appeal No. 6 of 1989 (SC)* and *Uganda Development Bank vs. Muganga Construction Company (1981) HCB 35).* A successful litigant has a 'reasonable expectation' of obtaining an order for costs (see; *Sutherland vs. Canada (Attorney General) 2008 BCCA 27)*.

In the instant case, the plaintiff has succeeded in his case against the defendant. I therefore award him the full costs of the suit.

# Therefore, I order that: -

- i. It is declared that the defendant is liable for the accident and injuries caused to the plaintiff. - ii. The plaintiff is awarded Special damages of UGX 1,080,000 (One million Eighty Thousand Shillings only. - iii. The plaintiff is awarded General damages of UGX 20,000,000 (Twenty million shillings only) - iv. Interest on both special and general damages at a rate of 6% per annum from the date of this Judgement until payment in full. - v. The plaintiff is awarded the full costs of this suit.

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I, so order

…………………………………………………

SIMON PETER M. KINOBE

JUDGE

DATE: 13th June 2025