Kibuuka v Kiiza & Another (HCT-01-CV-CS 23 of 2020) [2024] UGHC 934 (30 September 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT-01-CV-CS-023 OF 2020**

**KIBUUKA LUCKY WINNIE :::::::::::::::::::::: PLAINTIFF**

**VERSUS**

**KIIZA HASSAN**

**PAUL MWANJE**

**:::::::::::::::::: DEFENDANTS**

## **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO JUDGMENT**

#### **Introduction**

The plaintiff filed this suit against the defendants, jointly and severally, seeking a declaration that the 1st defendant, while negligently driving Motor Vehicle Reg. No. UBF 590G/UAD 761Q, knocked her and crushed her right leg. The plaintiff also seeks an order compelling the defendants to pay UGX. 152,000,000/= for an artificial leg, UGX. 81,884,800/= in special damages, UGX. 600,000,000/= in general damages, punitive damages, and the costs of the suit.

#### **Brief Facts**

The plaintiff's claim against the defendants is that on the 3rd of October 2019, along the Fort Portal–Kasese Road, the 1st defendant, during the course of his employment and negligently driving Motor Vehicle Reg. No. UBF 590G/UAD 761Q belonging to the 2nd defendant, knocked a motorcycle on which the plaintiff was being ridden, causing her to fall off. The said motor vehicle then ran over her right leg and crushed it. Immediately after the accident, the plaintiff was rushed to Fort Portal Regional Hospital for treatment. When the police impounded the said motor vehicle, it found human flesh on the tyres which was found to match the DNA profile of the plaintiff. The plaintiff's leg was later amputated which resulted in permanent disability, loss of employment and mental anguish.

In their joint written statement of defence, the defendants denied the claims by the plaintiffs and stated that the 1st defendant was not at any material time negligent while driving motor vehicle Reg. No. UBF 590G/UAD761Q and that they were not liable for the alleged accident.

#### **Representation and Hearing**

At the hearing, Mr. Wahinda Enock represented the plaintiff while Mr. Opio Moses represented the defendants. To prove her case, the plaintiffs led evidence from 7 witnesses while the defendants led evidence from 3 witnesses. The hearing proceeded by way of witness statements. Both counsel filed written submissions which I have considered in this judgement.

#### **Issues for Determination**

In their joint scheduling memorandum, counsel for the parties agreed and submitted 4 issues, which have been slightly modified for this court's determination:

- 1. Whether the 1st defendant knocked the plaintiff and injured her. - 2. Whether the 1st defendant was negligently driving motor vehicle Reg. No. UBF 590G/UAD 761Q. - 3. Whether is 2nd defendant is vicariously liable - 4. What remedies are available to the parties?

#### **Burden and Standard of Proof**

In civil matters, the burden of proof rests on the plaintiff who must adduce evidence to prove his or her case on the balance of probabilities to obtain the relief sought (*See: sections 101-103 of the Evidence Act Cap 43).* The court must be satisfied that the plaintiff has furnished evidence whose level of probity is such that a reasonable man might hold that the more probable conclusion is that for which the plaintiff contends (**See:** *Lancaster v. Blackwell Colliery Co. Ltd 1982 WC Rep 345* and *Sebuliba v. Cooperative Bank Ltd (1982) HCB130*).

#### **Consideration by Court**

### **Issue 1: Whether the 1st defendant knocked the plaintiff and injured her.**

The plaintiff, who testified as PW3, told the court that on the 3rd of October 2019, while on her way from Fort Portal Town to her residence along Fort Portal-Kasese Road, Motor vehicle Reg. No. UBF 590G/UAD 761Q, driven by the 1st defendant was following her as she was being ridden on a motorcycle. When they reached Harukuto, the said Motor vehicle knocked the motorcycle on which she was seated, causing her to fall off. The motor vehicle then ran over her right leg and crushed it. It was the testimony of PW3 that following the accident, she was immediately rushed to Fort Portal Regional Referral Hospital.

PW3 testified that when the Motor vehicle Reg. No. UBF 590G/UAD 761Q was impounded by police, they discovered a human flesh which was later found to match her DNA profile as per Pexh 1, a DNA analysis report from the Government Analytical Laboratory dated 29th of November 2019.

PW3 further told the court that because of the Motor Vehicle Reg. No. UBF 590G/UAD 761Q crushed her right leg, it was later amputated, and she is now permanently disabled. Copies of photos showing the plaintiff with an amputated right leg and the said motor vehicle were collectively admitted in evidence as Pexh 2.

Kasaija Ronald, a motorcycle rider who rode the plaintiff on his motorcycle at the time of the incident, testified as PW1 and told the court that on a fateful day, the said motor vehicle knocked his motorcycle at Harukuto along Fort Portal-Kasese Road. As a result, both he and the plaintiff fell in different positions, after which the motor vehicle ran over the plaintiff's leg, crushing it.

Matovu Robert, who testified as PW2, told the court that on the 3rd of October 2019, he was riding his motorcycle behind Motor Vehicle No. UAD 761Q heading to Kachwamba in Fort Portal Tourism City. That he witnessed the said motor vehicle knocking a motorcycle causing the rider and the passenger to fall into different positions. The said motor vehicle subsequently crushed the leg of the passenger who appeared to be a woman and was later identified to be the plaintiff. It was PW2's testimony that although the accident took place at night, he was able to identify the said motor vehicle registration number with the help of the flashlight of his motorcycle. During cross-examination, PW2 told the court that after knocking the plaintiff, he followed the said motor vehicle up to Kasusu where he recorded its registration number.

The testimony of PW2 was corroborated by PW4, Fr. Christopher Ngozi, who told the court that on the fateful day, he was driving his car behind Motor Vehicle No. UAD 761Q where upon reaching Harukuto, he saw the said motor vehicle crushing someone's leg with its back tyres.

Kyalisiima Francis, an ambulance driver, who testified as PW5, told the court that on the 3rd of October 2019 at around 10:0pm, he was called by one Alison who informed him that Motor vehicle Reg. No. UBF 590G/UAD 761Q had knocked the plaintiff and crushed her leg. He then drove to the scene and upon reaching there, he found the plaintiff lying on the side of the road with her right leg completely crushed. While at the scene, he called the OC of Kasusu Police Post and reported the accident, and he later took the plaintiff to Fort Portal Regional Referral Hospital for treatment.

It was the testimony of PW5 that while at Fort Portal Regional Referral Hospital he received a call from the OC Traffic Officer, ASP Tumwebze, who requested to go with him to Kasusu where they found the said motor vehicle parked with human flesh on its tyres.

PW6, D/C Muhindo Zamari, who took samples of the human flesh from the motor vehicle tyres and blood samples from the plaintiff testified he recorded the description of the samples taken on PF 17A, which was admitted in evidence as Pexh 7, and then took the samples to the Government Analytical Laboratory (GAL) for DNA analysis. The report showed that the samples of the human flesh retrieved from the motor vehicle matched the plaintiff's DNA profile.

Natukwase Immaculate, a Government Analyst working at the GAL, testified as PW7 and told the court that she received 3 exhibits, numbered C, B, and D; C being blood samples obtained from the victim/plaintiff, B being suspected human flesh collected from the motor vehicle Reg. UBF 590G, and D being dried blood samples from the victim. Her finding was that the DNA profiles of C and D matched those of B.

For the defence, DW1, Mutumba Ronald, a turnboy for the motor vehicle in question, testified that on the 1st of October 2019, he and the 1st defendant were hired to transport tiles to Mpondwe in Kasese District via Fort Portal-Kasese Road. Upon reaching Fort Portal at around 9:00 p.m., the 1st defendant drove to a public parking yard in Kasusu to park the vehicle and left him inside, where he fell asleep. After about three hours, while still parked at Kasusu, he saw police officers surrounding the vehicle, alleging it had been involved in an accident prior to arriving at the parking yard.

It was the testimony of DW1, that when one of the police officers started moving around the vehicle, he told him that there was human flesh in the middle of the behind tyres but he did not see such human flesh or blood on the motor vehicle. It was the testimony of DW1 that police subsequently ordered the 1st defendant to drive the vehicle to the police station on the allegation that the motor vehicle was involved in an accident. Reaching the police station, the 1st defendant parked the motor vehicle and on the following morning, DW1, the 1st defendant together with some police officers visited the scene where the plaintiff is alleged to have been knocked from. At the scene, they did not find any stains of blood.

DW2, ASP Ongen Richard, the inspector of vehicles for the Rwenzori region at the time of the incident, told the court that court following the reported accident on the 3rd October 2019, he inspected motor vehicle Reg. No. UBF 590G/UAD 761Q, and found no damage or scratch on the said motor vehicle; a suggestion that there was no contact with the said motor vehicle with any metallic object. DW2 further told the court that he equally examined motorcycle Reg. No. UDS 250D, which was carrying the plaintiff, and it equally had no damage. It was DW2's testimony that following that examination, he concluded that there was no contact between the motorcycle and the motor vehicle. An inspection report dated 9th October 2019 for motor vehicle Reg. No. UBF 590G/UAD 761Q was admitted in evidence as Dexh 1 while that of motorcycle Reg. No. UDS 250D dated 4th December 2019 was admitted in evidence ad Dexh 2.

The 2nd defendant, who testified as DW3, informed the court that he is the owner of Motor Vehicle Reg. No. UBF 590G/UAD 761Q, which is engaged in the business of transportation and logistics, and that the 1st defendant is employed as his driver for the same vehicle. DW3 further testified that around the 3rd of October 2019, he secured a business contract to transport tiles to Mpondwe in Kasese District. Following this, he instructed the 1st defendant to load the tiles onto the motor vehicle and proceed to Kasese District via Fort Portal-Kasese Road.

It was the testimony of DW3 that on the 3rd October 2019 at around 12:30 am, he received a call from the 1st defendant informing him that the police had surrounded the motor vehicle on the allegation that it had been involved in an accident which had taken place at Harukuto, about 100-200 meters from the parking yard where the motor vehicle was parked. DW3 told the court that he was told by the 1st defendant that his motor vehicle was not involved in the accident because by 10:30 am, it was already parked in the parking yard, and he had been informed of the accident 3 hours after it had allegedly taken place.

In his submissions, counsel for the plaintiff argued that the evidence on record leads to a conclusion that it is the 1st defendant who knocked the plaintiff. Counsel referred this court to the case of *Hiran Munjukanyi v. Uganda Funeral Service HCCS No. 115 of 2002.*

On the other hand, counsel for the defendants argued that the plaintiff witnesses' testimonies were full of contradictions and in light of the evidence of DW2, who told the court that there was no scratch or damage on the motor vehicle Reg. No. UBF 590G /UAD 761Q, then the plaintiff's contention that she was knocked by the motor vehicle in issue can not stand.

Counsel argued that the evidence of DW2, the inspector of motor vehicles for the Rwenzori region, at the time, that there was no collision between the motor vehicle Reg. No. UBF 590G and motor vehicle No. UDS 250D was not challenged. Counsel referred this court to the case of *Habre International Ltd v. Ibrahim Kassim & Others SCCA No. 04 of 1999* where it was held that omission or negligent to challenge the evidence in chief on material or essential point by cross-examination would lead to the inference that the evidence is accepted.

Counsel further argued that motorcycle Reg. No. UDS 250D which was carrying the plaintiff was reported, as per Dexh 2, to have been in poor mechanical condition and unfit for road use at the material time when the accident took place, and therefore it was unlikely that it was knocked by the motor vehicle in issue. Counsel for the defendants argued that professional motor vehicle inspection reports play a crucial role in revealing hidden details and conditions that impact the outcome of the case. Counsel referred this court to the case of *Asimwe Alex v. Maracha Sam and Another HCSS No. 102 of 2018.*

Counsel for the defendants also argued that the only evidence relied upon by the plaintiff is the DNA analysis report which does not establish the cause of the accident. Counsel argued that the motor vehicle in issue could pick up the remains of an accident such as animal flesh or blood on another scene and not necessarily the one in the instant case.

#### **Court's Analysis of Issue 1.**

The plaintiff contends that on the 3rd of October 2019, at Harukuto along Fort Portal-Kasese Road, she was knocked and her right leg crushed by Motor Vehicle Reg. No. UBF 590G/UAD 761Q. At the material time, she was a passenger on Motorcycle Reg. No. UDS 250D, ridden by PW1. The motor vehicle, driven by the 1st defendant, knocked the motorcycle from behind, causing the plaintiff to fall, after which the vehicle ran over her leg and crushed it.

The defendants, on the other hand, contend that based on the testimony of DW2, the 1st defendant is not at fault because the motorcycle on which the plaintiff was being ridden was in a serious mechanical condition and not fit to be on the road and that DW2 opined that there was likely no collusion between the motor vehicle and the motorcycle.

To establish whether the 1st defendant knocked the plaintiff and caused severe injuries to her, there is a need to connect the motor vehicle in issue to the scene. It is not in contention that the 1st defendant was driving Motor Vehicle Reg. No. UBF 590G/UAD 761Q plying the Fort Portal-Kasese Road on the 3rd of October 2023, as per the testimony of DW3, the owner of the motor vehicle. 2 eyewitnesses, PW2 and PW4 who were driving behind the motor vehicle testified to having seen the motor vehicle running over the plaintiff's leg and crushing it. PW2, who was riding a motorcycle behind the motor vehicle testified that after witnessing the incident, he followed the motor vehicle until it branched off to a parking yard in Kasusu and was able to read its registration number with the help of the flashlight from his motorcycle. It was also the testimony of PW4 that after crushing the plaintiff's leg, the 1st defendant did not stop but continued driving and was being followed by PW4 until he branched off from the main road. This evidence corroborates that of the plaintiff and PW1 who was riding the motorcycle from which the plaintiff fell before her leg got crushed.

According to PW5, the ambulance driver who picked up the plaintiff from the crime scene and took her to the hospital, the boda boda riders who witnessed the accident had taken note of the motor vehicle registration number and followed it to the parking yard. This prompted the OC traffic, ASP Tumwebaze, who, together with PW4, went to the Kasusu parking yard where they found the motor vehicle and upon observation, they discovered what seemed like human flesh on the tyres of the said motor vehicle. Samples of this human flesh retrieved from the tryes of Motor Vehicle Reg. No. UBF 590G/UAD 761Q together with the blood sample of the plaintiff were taken to the GAL for analysis and their DNA results were found to match. I find that the DNA results corroborate the testimonies of PW1-PW4.

I find that the opinion of ASP Ogeni Richard, DW2, on which the defendants rely to contest the involvement of the 1st defendant, fails to account for the fact that this was not a head-on collision. Therefore, it is irrelevant whether the motor vehicle inspection report showed no scratches or damage on Motor Vehicle Reg. No. UBF 590G/UAD 761Q to suggest contact with Motorcycle Reg. No. UDS 250D, which was carrying the plaintiff at the time of the accident, in the of the DNA results.

I note that the accident occurred at night, and according to the testimony of PW1 and PW2, the road was under construction, with both the motorcycle and the motor vehicle moving in the same direction. Therefore, considering the circumstances leading up to the accident, any contact, regardless of the force, between the motorcycle and the vehicle could have caused the plaintiff to fall without necessarily causing damage to the motor vehicle. PW2 testified that the vehicle was being recklessly driven and he survived being knocked by the same.

The fact that the motorcycle carrying the plaintiff at the time of the accident had worn-out tyres, a loosened brake linkage, and its gear shift pedal secured by ropes, as indicated in Dexh 2, does not negate the fact that Motor Vehicle Reg. No. UBF 590G/UAD 761Q knocked the plaintiff and crushed her right leg, especially in light of the overwhelming evidence from both eyewitnesses and the DNA results.

Be that as it may, I note that the inspection of the motorcycle was done after 2 months in December which would not reflect the condition it was in when the accident took place in October.

In the premises, on the balance of probability, the testimonies of PW1- PW4, taken together with the DNA results point to the fact that the 1st defendant was driving a motor vehicle Reg. No. UBF 590G/UAD 761Q that knocked the plaintiff and crushed her right leg.

Therefore issue 1 is found in affirmative

# **Issue 2: Whether the 1st defendant was negligently driving motor vehicle Reg. No. UBF 590G/UAD 761Q**

In his submissions on issue 2, counsel for the plaintiff argued that the tort of negligence has three ingredients, namely; the defendant owed an injured man a duty of care, the defendant failed to exercise that duty of care, and the failure to exercise that duty of care caused the injury. Counsel referred this court to the case of *Hiran Manjikanji v. Uganda Funeral Services (Supra).*

Counsel for the plaintiff argued that the failure of the 1st defendant to appear in court to give his defence is an inference and conclusion of negligence. Counsel for the plaintiff also argued that when the motor vehicle in issue knocked the motorcycle that was carrying the plaintiff and the plaintiff fell off, the driver did not stop and instead continued driving and crushing the plaintiff's leg.

Counsel for the plaintiff argued that the 1st defendant owed a duty of care to the plaintiff and breached that duty when he continued driving and crushed her leg.

On the other hand, counsel for the defendants argued that the plaintiff must prove that the injury was occasioned because of the 1st defendant's negligence unless the doctrine of *res ipsa loquitor* applies. Counsel referred this court to the case of *Sekitoleko Joram v. Kato Edward & Another HCCS No. 97 of 2017.*

Counsel for the defendants further argued that the plaintiff did not prove negligence because she did not produce the investigating officer who investigated the accident, nor did she adduce evidence supporting negligence. Counsel also argued that the 1st defendant could not have foreseen that the plaintiff would jump off the motorcycle and end up under the motor vehicle that the 1st defendant was driving.

Counsel for the defendants also argued that the 1st defendant's conduct as per DW1 was that of an innocent man because as per DW1's testimony, the 1st defendant was driving at a slow speed and the road was under construction. counsel for the defendant also argued that the fact that the 1st defendant parked the motor vehicle about 100 metres away from the scene is an indication that he was an innocent man.

## **Courts Analysis of Issue 2**

The tort of negligence is actionable at the insistence of the person suffering an injury as a consequence of the breach of duty of care owed to that person. In the case of *Sekitoleko Joram v. Kato Edward & Another (supra)*, the court held that the duty is upon the plaintiff who sues in negligence to prove that his injury was as a result of the defendant's negligence except where the doctrine of *res ipsa loquitur* applies.

In the case of *Atto Filder v. Waibi Elijah & Another HCCS No. 26 of 2013*, the court while quoting the *Black's Law Dictionary 11th Edition 2019* defined 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"*

The case of *Donoghue v. Stevenson (supra)* sets out key ingredients of the tort of negligence, to wit;

- i. The defendant owed to the plaintiff a duty of care - ii. The defendant breached that duty of care - iii. The plaintiff suffered damages as the result of the defendant's breach of duty of care *(Also see: H. Kateralwire Vs Paul Lwanga [1989-90] HCB 56).*

In the case of *Sekitoleko Joram v. Kato Edward & Another* referring to the case of *Paulo Kato v. Uganda Transport Corporation [1975] HCB*, the court held 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 a collision. This duty involves taking all measures to avoid a collision. Once a possibility of 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."*

From the foregoing, the following deduction can be made: to impute negligence on the driver, that driver must have behaved differently from a reasonable man, he must have foreseen the risk and must have failed to take precautions against the foreseen risk.

The standard of reasonableness, however, recognizes that a reasonable person can make mistakes or act without excessive caution, as long as their actions are generally prudent and sensible within the circumstances. On the issue of the foreseeability of danger, there must be sufficient probability to lead a reasonable man to anticipate danger or injury.

In considering whether some precaution should be taken against a foreseeable risk, courts have held that there is a duty to weigh on the one hand, the magnitude of the risk, the likelihood of an accident happening, and the possible seriousness of the consequences if an accident does happen, and on the other the difficulty and expense and any other disadvantage of taking the precaution *(See: Sekitoleko Joram v. Kato Edward & Another (supra))*

Therefore, the question to be answered is whether a reasonable driver in the position of the 1st defendant would foresee the possibility of the accident as it happened; and would take reasonable steps to guard against such occurrence; and whether the 1st defendant failed to take such steps.

I have already made the finding that motor vehicle Reg. No. UBF 590G/UAD 761Q which was being driven by the 1st defendant knocked the plaintiff. It is also not in dispute that the plaintiff suffered injuries which resulted in the amputation of her right leg.

The evidence on record shows that the motor vehicle that the defendant drove was a tractor-head that towed a trailer which was carrying tiles.

Both PW1 and PW2 testified that at the time of the accident, the Fort Portal-Kasese Road was under construction and not in good condition. The evidence on record further shows that both the motorcycle and the vehicle were moving in the same direction. PW1, the rider of the motorcycle carrying the plaintiff, stated that the 1st defendant, without even sounding the horn, knocked his motorcycle with the front tyre and headlights as he rode on the left side of the road, which was sloping.

According to PW2, who was riding behind the motor vehicle Reg. No. UBF 590G/UAD 761Q, the same motor vehicle nearly knocked him, but he narrowly survived. This suggests that the 1st defendant overtook PW2 before striking the motorcycle carrying the plaintiff and was likely driving at a higher speed than both PW1 and PW2. PW2 also testified that the 1st defendant attempted to avoid a pothole, which led to the motorcycle carrying the plaintiff being knocked down.

In circumstances, given that the driver was driving a tractor head towing a trailer which was loaded with tiles at night, on a road that was under construction, and well aware that there were other road users, he owed a duty of care towards those road users.

Given the circumstances leading up to the collision of Motor Vehicle Reg. No. UBF 590G/UAD 761Q with the motorcycle carrying the plaintiff, the 1st defendant should have exercised caution by refraining from overtaking which led to the knocking of the motorcycle. Since the road was under construction, the 1st defendant should have anticipated that any attempt to overtake or drive at a high speed could result in an accident.

There is no reasonable explanation given by the defence as to why the 1st defendant drove at such speed on a road that was under construction; and why the 1st defendant could not brake to avoid crushing the plaintiff's leg.

It is therefore the finding of this court that the 1st defendant did not reasonably exercise any caution to avoid knocking the motorcycle that carried the plaintiff and eventually crushing her right leg. In the circumstances, I find that the 1st defendant was negligently driving motor vehicle Reg. No. UBF 590G/UAD 761Q which caused injuries to the plaintiff.

Issue 2 is therefore found in the affirmative.

## **Issue 3: Whether the 2nd defendant is vicariously liable.**

Counsel for the plaintiff argued that the employer is generally liable for the acts of the employee while the employee is in the course of his employment.

Counsel for the plaintiff submitted that the 2nd defendant, who testified as DW3, told the court on a fateful day, that the 1st defendant was in the course of his employment, and therefore the 2nd defendant was vicariously liable for the negligent acts of the 1st defendant.

Counsel for the defendants did not submit on issue 3

## **Court's Analysis of the Issue 3**

Under the doctrine of vicarious liability, the liability of a person is assigned to a person or legal entity that did not actually cause the harm or injury complained of.

In an employer-employee relationship, like in the instant case, an employer can be held liable for the acts or omissions of its employee, provided it can be shown that the injury or harm complained of occurred in the course of employment *(See: Sekitoleko Joram v. Kato Edward & Another (supra))*

To determine whether the employer is vicariously liable for the acts of an employee, the following three elements need to be fulfilled:

- a) The existence of employee-employer relationship; - b) A wrong/negligent act committed by the employee; and - c) The wrong/negligent acts should have been committed during the course of employment *(see: security 2000 Ltd v. Cumberland CACA No. 916 of 2014).*

In the instant case, the 2nd defendant in his witness statement stated that the 1st defendant was his driver who drove Motor Vehicle Reg. No. Reg. No. UBF 590G/UAD 761Q. He further stated that on the 3rd of October 2019, he instructed the 1st defendant to load tiles on the said motor vehicle and transport them to Mpondwe in Kasese using the Fort Portal Kasese route.

The evidence on record shows that on the fateful day, the 1st defendant was driving the said motor vehicle which was involved in the accident along the same route. I have already made a finding that the 1st defendant was negligent in causing the crushing of the plaintiff's leg. Therefore the 2nd defendant is vicariously liable for the negligent acts of the 1st defendant. Resultantly, issue 3 is found in the affirmative.

## **Issue 4: What remedies are available to the parties** The plaintiff, in her plaint, prayed for several remedies including, a declaration that the 1st defendant knocked and injured her, a declaration that the 2nd defendant is vicariously liable for the acts of the 1st defendant, special damages, general damages, interest rate at a rate of 20% per annum, punitive damages damages and costs of the suit.

On the prayer of special damages, counsel for the plaintiff prayed for UGX. 273,600,000/= as loss of salary income and UGX. 200,000,000/= million as loss of business income.

The plaintiff prayed for UGX. 469,864,800/= as medical expenses she incurred during treatment.

On the prayer of general damages, the plaintiff prayed for UGX. 600,000,000/=.

It was the prayer for the plaintiff that the defendant be compelled to as well pay her UGX. 152,000,000/= for an artificial leg that she shall be using to walk.

On punitive damages, counsel for the plaintiff argued that punitive damages are awarded to punish the defendant due to grossly negligent conduct. Counsel prayed for UGX. 200,000,000/=.

On the other hand, counsel for the defendants argued that general damages are awarded to compensate the aggrieved party for the inconvenience that accrued as a result of the actions of the defendant and the purpose is to put the plaintiff in the position he would have been in if he or she had not suffered the wrong. Counsel cited the case of *Dr. Emmanuel Mugisha & Another v. Yusuf Mpiima HCCS No. 462 of 2018*.

On loss of salary and business income, counsel for the defendants argued that the loss of income and salary was not specifically pleaded or proved in court, and therefore should not be awarded.

On the prayer of general special damages, counsel for the defendants argued that the expenses claimed were not proved to satisfaction.

## **Court's Analysis of Issue 4**

Special damages are those damages that relate to past loss calculable at the date of trial and encompass past expenses and loss of earnings which arise out of special circumstances of a particular case *(see: Mugabi John v. Attorney General C. S No. 133 of 2002).*

It is a trite law that special damages must be specially pleaded and proved. These damages can be proved through adducing documents such as receipts or invoices, as evidence, but can also be proven through other ways, such as: the testimony of the person who says they bought the item, fair market value, expert opinion or other credible evidence *(see: Makubuya Enock William (T/A Polla Plast) v. Umeme (u) Limited SSCA No. 1 of 2019).*

In the case of *Nasif Mujib & Another v. Attorney General HCCS 160* of 2014, Hon Justice Ssekaana Musa while quoting the case of *Lydia Mugambe v. Kayita James & Another v HCCS No. 339 of 2020* held that:

> *"Proof (of) special damages must be comprehensive and credible; and it must incorporate all the relevant conditions required in proof of special damages. Where various items are claimed under special damages, the*

## *plaintiff is entitled to be awarded any of the items which he could prove with sufficient evidence, even if he is not able to prove other or all the items."*

In the instant case, the plaintiff pleaded special damages of UGX. 81,884,800/= as follows;

Shs. 6,550,000/= the plaintiff incurred at Buhinga for major operation, admission, drugs, carrying out DNA and transport from Buhinga Hospital among others

Shs. 14,350,000/= which the plaintiff incurred during her treatment at St. Francis Nsambya Hospital.

Shs. 43,434,800/= which the plaintiff incurred during treatment at Corsu Hospital.

Shs. 17,550,000/= which the plaintiff incurred in Kampala for utilities, food, private doctor, drugs for home, dressing, receiving treatment, from hospitals, hiring a back machine, special hire to and from different hospitals.

The plaintiff did not plead specifically the loss of employment and business income, although, in paragraph 7 of the plaint, she stated that she could never work at Fins Medical University and operate her business as a result of the accident.

The Supreme Court in the case of *Makubuya Enock William (T/A Polla Plast) v. Umeme (u) Limited (supra)* citing *Ratcliffe v. Evans 918920 2 Q. B 524 (C. A)* held that once it can be ascertained from pleadings that a claim of special damages was made out, it would be a

travesty of justice to insist that a party must use the words "special damages" in the pleadings.

In the instant case, based on the authority in *Makubuya Enock William (T/A Polla Plast) v. Umeme (u) Limited (supra)*, I will not reject the claims of loss of employment income and business income because they were not specifically pleaded under "special damages" but will award them based on the extent to which they are proved.

The plaintiff stated that she was employed with Fins Medical University as a Laboratory Assistant who was earning a salary of UGX. 500,000/=. Her employment contract was running for 2 years effective June 2019. By October 2019 when she got the accident she had already worked for 4 months. Although the plaintiff may have lost her employment as a result of the accident, she did not provide any evidence to prove to this court, either by way of a termination letter or any other form, that she lost her employment at Fins Medical University as a result of the accident. Therefore, this court declines to award the plaintiff any loss of employment income for lack of proof of the same.

On the loss of business income, the plaintiff did not tell the court which business she was operating, and how she lost business income of UGX. 200,000,000/= as a direct consequence of the accident. The claim for loss of business income by the plaintiff is therefore rejected.

As for the medical expenses, the plaintiff led in evidence the following receipts:

I. Billing documents of Corse Hospital which were admitted in evidence as Pexh 3. The total amount invoiced is UGX. 10,709,800/=

- II. Billing document of Hope Medical Clinic and laboratory admitted as Pexh 4. The total amount invoiced is UGX. 2,800,000/=. - III. Invoice of St. Francis Nsambya Hospital which was admitted in evidence as Pexh 5. The total amount indicated on the invoice is UGX. 4,454,200/= - IV. Two cash receipts for Surgifern collectively admitted as Pexh 6. The total amount indicated against the receipts is UGX. 264,000/=.

These medical expenses total to UGX. 18,232,400/=. Based on the plaintiff's testimony, I will in addition to these medical expenses award the plaintiff UGX. 5,000,000/= as the expenses incurred on transport to and from different hospitals, home care, food and other utilities while receiving treatment. Overall, I award UGX. 23,232,400/= to the plaintiff as special damages, in terms of medical and related expenses, against the 2nd defendant.

As for the general damages, it is trite that general damages are awarded at the discretion of the court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred (*See: Hadley v. Baxendale (1894) 9 Exch 341 and Maruri Venkata Bhaskar Reddy And Others v. Bank Of India (Uganda) Ltd HCCS No. 804 Of 2014*)

In the case of *Hiran Munjukanyi v. Uganda Funeral Service,* the court held that the award of general damages is awarded based on the impression reflecting the society's discomfiture of the wrongdoer's deprival of the man's liberty and society's sympathy to the plight of the innocent victim.

In the instant case, the plaintiff's right leg was amputated. She was only 27 years old at the time of the accident, and this is a permanent disability she has to live with for the rest of her life. It was her testimony that she had suffered mental anguish and that she lost employment due to her accident.

However, I find that the claim of UGX. 600,000,000/= on the higher side. I will therefore exercise my discretion and award UGX. 300,000,000/= to the plaintiff as general damages against the 2nd defendant.

As regards the prayer by the plaintiff for UGX. 152,000,000/= to purchase an artificial leg, this court must carefully consider both legal principles and the evidence before it. This court has already awarded general damages to the plaintiff which are intended to compensate her for pain, suffering, and loss of amenities of life, including the impact of the injury on her quality of life. In my view, the damages awarded are comprehensive and aim to restore the plaintiff, as far as possible, to the position she was in before the accident.

The claim for the artificial leg, however, appears to lack sufficient justification. While I acknowledge the emotional and physical difficulties the plaintiff has faced and may face in future, there is no evidence to suggest that the plaintiff's continued quality of life, or her ability to function, is contingent upon receiving an artificial leg. Furthermore, the plaintiff has not provided medical reports or expert testimony to substantiate the necessity of an artificial leg or to establish that it is essential for her rehabilitation.

In light of the comprehensive nature of the general damages awarded, and the absence of compelling evidence demonstrating the necessity of the artificial leg, the claim for UGX. 152,000,000/= million cannot be justified. To grant this additional award would risk overlapping compensation, as the plaintiff can reasonably live without this device, and the general damages awarded sufficiently address the loss and suffering endured. Thus, the court finds no basis to grant this prayer.

I find that the plaintiff has not made out a case for punitive damages. I therefore decline to award punitive damages to the plaintiff.

On the issue of interest, this court has the discretion to award *"interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit" (See: section 26(2) of the Civil Procedure Act).*

Therefore, interest on special and general damages and loss of employment income is awarded to the plaintiff at the court rate from the date of this judgement until payment in full.

Regarding costs, it is trite that costs follow the event, unless for some reason the court directs otherwise *(see: Section 27(2) of the Civil Procedure Act)*. In the instant case, I find no reason to deny the plaintiff the costs of this suit costs. The costs of the suit are therefore awarded to the plaintiff.

Resultantly, judgement is entered for the plaintiff in the following terms:

- (i) A declaration that the 1st defendant while driving Motor Vehicle Reg. No. UBF 590G/UAD 761Q negligently knocked and caused severe injury to the plaintiff. - (ii) The 2nd defendant is vicariously liable for the negligent acts of the 1st defendant. - (iii) The 2nd defendant shall pay **UGX. 23,232,400/= (Uganda shillings twenty-three million two hundred and thirty-two thousand and four hundred shillings only)** as special damages to the plaintiff. - (iv) The plaintiff is awarded **UGX. 300,000,000/= (Uganda shillings three hundred million only)** as general damages against the 2nd defendant. - (v) Interest at court rate is awarded on (iii) and (iv) above from the date of this judgement till payment in full. - (vi) The 2nd defendant shall pay the costs of the suit to the plaintiff.

It is so ordered.

Dated at Fort Portal this 30th day of September 2024.

**Vincent Emmy Mugabo Judge**