Kisitu v Gaanya (Civil Suit No. 0651 of 1994) [2009] UGHC 257 (9 February 2009)

Full Case Text

## **THE REPUBLIC OF UGANDA**

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

## **CIVIL SUIT No. 0651 OF 1994** s'

#### **1. CHRISTOPHER KISITU** 1st plaintiff

- **2. RONALD WALUSIMBI ]** - **3. BRIAN KATAGIRYA ]** - *10* **4. GEORGE W. KIGOZI ] 2nd to 3rd Plaintiffs suing by their next friend Christopher Kisitu**

#### Versus

### I ABUBAKER GAANYA DEFENDANT

**JUDGEMENT**

#### Before the Hon. Judge J. Sebutinde

#### **Introduction:**

The 2nd, 3rd and 4th plaintiffs are all minors suing jointly by their father and next friend, Christopher Kisitu, the 1st Plaintiff.1 The Plaintiffs jointly sued the Defendant Abubakar Ganya for the recovery of general and special damages, interest thereon and costs,2 arising out of a motor accident caused through negligence by a vehicle driven by the Defendant's agent/servant in the course of employment? The Plaintiffs were all passengers in the accident vehicle. Six witnesses testified on the Plaintiff's behalf including Christoper Kisitu (PW1) the father of the other Plaintiffs; Professor James Ssekabunga (PW2) a retired surgeon from Mulago Hospital; Brian Katagirya (PW3) the 3rd Plaintiff, George Kigozi (PW4) the 4th Plaintiff; Alex Mpagi (PW5) a relative of the Plaintiffs; No. 3951 Corporal Ojok (PW6) who investigated the alleged accident. The Plaintiffs filed an Amended Plaint (Amended Plaint) on 5/09/95.

The Defendant filed a Written Statement of Defence (WSD) denying liability and pleading that the driver of the accident vehicle was at the

2 Amended Plaint, paragraphs 7, 9.

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1 Amended Plaint, paragraph 2.

3 Amended Plaint, paragraphs 4-5.

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time of the accident on a frolic of his own and not acting in the course of employment, and that the Plaintiffs were not fare-paying passengers.4 In the alternative, the Defendant pleaded that the accident was "inevitable."5 The Defendant also contested the extent ofthe Plaintiffs' alleged injuries and prayed that the suit be dismissed with costs. Two witnesses testified on behalf of the Defendant including Abubaker Ganya (DW1) the Defendant and Wilson Kitoyi (DW2) an Inspector ofVehicles attached to the Inspectorate of Vehicles, Naguru. The parties filed written submissions.

The Plaintiffs case: On 26 February 1994, Christoper Kisitu (PW1) together with his three sons (2nd, 3rd and 4th Plaintiffs) boarded a public service vehicle or taxi Reg. no. UAG 210 at Bunamwaya and headed towards Bulemezi. Fourteen miles along the Kampala-Hoima road at a place called Serinya, one of the vehicle's tyres burst as the vehicle was descending down a steep hill. The driver of the vehicle lost control and the vehicle overturned. PW1 sustained bodily injuries, lost consciousness and woke up in Mulago Hospital. PW1 stated that the driver of the vehicle was driving at an excessive speed, over HOkph because the warning bell in the vehicle was already ringing before the vehicle overturned. PW1 sustained a fracture on his upper left arm, his left hand was severely impaired and he lost consciousness. He was hospitalised for one month.

The 1st Plaintiff's three sons also sustained injuries. Ronald Walusimbi (2nd Plaintiff) sustained internal injuries and had to undergo stomach surgery. He was hospitalised for several weeks. Brian Katagirya (3rd Plaintiff) sustained injuries to his head and chest and was hospitalised for about one week. George William Kigozi (4th Plaintiff) sustained injuries to his head from broken glass and spent one day in hospital. The 1st Plaintiff and his sons spent a total of Shs.789.500/= in hospital and. medical bills for which they claim reimbursement from the Defendant-All four Plaintiffs were treated by Professor Ssekabunga (PW2). PW1 also told Court that the Defendant's vehicle, which normally operated as a taxi along the Kampala- Namasuba route, was on the fateful day hired by the Plaintiff and thirteen other passengers to transport them to Bulemezi to attend a funeral. They had contracted the driver to pick them up after the funeral and to drive them back to Bunamwaya. The passengers had each paid the driver Shs.3.000/= being the taxi fare from Bunamwaya to Bulemezi.

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4 WSD, paragraphs 4-6/

5 WSD, paragraphs 7-9.

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Professor James Ssekabunga (PW2), a retired surgeon from Mulago Hospital, confirmed examining Christopher Kisitu and his three sons at Mulago Hospital after they were injured in the motor vehicle accident. PW2 made medical reports of the Plaintiff's injuries, which were tendered in evidence as Exhibits P14, P15, P16 and P17 respectively. According to PW2, Christopher Kisitu sustained a fracture of the left humerus and an extensive wound on the left hand. PW2 assessed Kisitu's permanent disability at 50%.

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Brian Katagirya the $3^{rd}$ Plaintiff (PW3) confirmed that the vehicle in which he and his father were travelling to Bulemezi was travelling at an excessive seed and that the warning bell was ringing as the vehicle began to descend. He only remembers the vehicle swerving before he lost consciousness. He woke up the next day in hospital where he spent a month. He suffered bleeding from the nose and ears had a few abrasions on the face and a swollen chest. George Kigozi the 4th Plaintiff (PW4), confirmed travelling in the same taxi with his father (PW1) and two brothers on 26 February 2006 from Bunamwaya, heading for Bulemezi. He too heard the warning bell ringing in the vehicle signifying that they were travelling at an excessive speed just before the vehicle overturned. He did not know what caused the accident as he too lost consciousness and only regained consciousness in the hospital. He sustained chest pain and wounds on his left temple and back of the head and left hand. Alex Mpagi (PW5) is a nephew of Christopher Kisitu. He assisted with caring for the four Plaintiffs while they were in hospital by purchasing food and drugs for them. He recorded his expenditure in this regard and exhibited the records as exhibits P.10 and P.11.

No. 3951 Corporal Ojok (PW6) was the O/C Traffic at Kakiri Police Station in February 1994. On 26 February 1994, at about 4.30pm, he received a report that there had been a motor vehicle accident about two miles from the Police Station on the Kampala Road. On arrival at the scene, PW6 found motor vehicle UAG 210 had overturned and was lying in a nearby swamp off the main road. He inspected the scene and drew a sketch map thereof and also made an accident report, both of which were tendered in evidence as Plaintiff's Exhibit P.18. PW6 testified that at the time of the accident, the weather was clear, the road surface was permanent (tarred) and in good repair, the road surface was dry and the flow of traffic was very light. The stretch of the road where the accident happened was straight with no curves or bends, although sloping slightly. There were skid marks measuring approximately 100 metres long, left by the accident vehicle as it tried to break. He did not find any passengers at

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the scene as they had all been rushed to hospital or had left. The accident vehicle was sent for inspection and the report of the Inspectorate of Vehicles was tendered in evidence as Plaintiff's Exhibit P.19. PW6 told court that from what he observed at the accident scene and the tyres of the vehicle, the said vehicle must have been travelling at a high speed when one of the front tyres burst. PW6 also testified that the maximum speed for a Public Service Vehicle (PSV) on the highway is 80k.m.p. except in the town areas where it is 50k.m.p. In his opinion as a traffic officer, the said accident was most likely caused by a combination of driving at an excessive speed, and the bursting of the front tyre.

The Defendants case: Abubakar Ganya (DW1) the registered owner of motor vehicle UAG 210 told court that he imported the reconditioned vehicle from Japan, only three weeks before the accident and that it was therefore as good as new. In his view, the vehicle was in excellent mechanical condition before the accident and all five tyres were in good condition. He routinely used the vehicle as public service vehicle or taxi on the Rubaga-Kasubi route and had instructed his driver to operate only on that route and to park the vehicle at DW1's house by 7pm everyday. DW1 stated that he never instructed or authorised the driver to operate the taxi on the Kampala-Bulemezi route where the accident occurred and that in that regard, the taxi driver had gone on a frolic of his own. Furthermore, DW1 told court that he had given the driver strict instructions never to hire out the vehicle as a "Special hire" taxi and that as such, the Plaintiffs in this case were passengers travelling at their own risk, and that he as the owner of the vehicle was not liable for their injuries.

Wilson Kitoyi (DW2) the Inspector of Vehicles at the Inspectorate Of Vehicles, Naguru inspected the accident vehicle and prepared the Report Exhibit P.19. He certified that the motor vehicle UAG 210 was in "a good" mechanical condition" before the accident. He stated however, that the manner, in which the front tyre had burst exposing the internal threads, was in indication that they tyres of the vehicle were of a poor quality or $\mathbf{r}$ had a manufacture's defect and were unfit for use on the road.

Issues: The parties framed four issues for court's determination, namely-

- Whether or not the accident was caused by reason of the (i) Defendant's driver's negligence; - Whether or not the Defendant is vicariously liable for his $(ii)$ driver's negligence; and - Whether or not the Plaintiffs are entitled to remedies sought. $(iii)$

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Before examining and resolving the above issues, I will rehearse the law applicable.

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The Applicable Law: The common law tort of negligence has its roots in $\mathbf{r}$ the celebrated case of Donoghue v. Stevenson [1932] AC 562 where Lord Atkin held at p.580:

"The liability for negligence, whether you style it such or treat it as in other" $\mathcal{F}$ systems, as a species of "culpa", is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay ... The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question – who is my neighbour? – receives $\alpha$ restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have the $m$ in contemplation as being so affected when $I$ am directing my mind to the acts or omissions which are called in auestion."

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### Lord Atkin further held:

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"In order to support an action for damages for negligence, the complainan $z$ " has to show that he has been injured by the breach of a duty owed to him in $\mathbf{z}$ the circumstances by the defendant to take reasonable care to avoid such $z$ injury." This, in sum and substance, is the law of negligence as applied in this country. In addition a party pleading negligence is required to specify in hercomplaint the particulars of negligence as well as to specifically plead and strictly prove any special damages claimed. The burden of proof is, of course, on the party that alleges the negligence, whether in the primary plaint or in $\alpha$ counter-claim."

I will now proceed to determine the issues in light of the above common law.

## Issue No.1: Whether or not the accident was caused by the negligence of the Defendant's driver.

There is no doubt that a motorist who gets behind a wheel and drives a motorised vehicle on a public road, owes the general public a duty of care to so drive in such a manner as will not endanger other road users or the general public. Taking care in that regard includes ensuring that one's vehicle is in a good or road-worthy mechanical condition, as well as observing the traffic regulations including road-signs and speed-limits, while driving. In the present case, the driver of motor vehicle UAG 210 owed the road users of the Kampala-Hoima highway, and in particular the

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passengers in his vehicle, a duty to drive safely and to take reasonable care not to injure anyone. The question I must determine from the evidence available is whether the said driver breached that duty as alleged by the Plaintiffs?

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In their Amended Plaint, the Plaintiffs maintained that the accident was caused solely by the negligence of the driver of motor vehicle UAG 21O an employee of the Defendant,6 and the particulars of negligence were that the driver (a) drove the said vehicle at an excessive speed; (b) drove the said vehicle with a worn out tyre and in an inefficient working condition and (c) failed to control the vehicle in such a way as to avoid the said accident. Counsel for the Plaintiff argued that the evidence of PW1, PW3 and PW4 all of whom were passengers in the said vehicle attested to the driver having driven at an excessive speed of approximately 110k.p.h, and they all heard the speed warning bell ringing in the vehicle, indicating that the driver was over speeding. This evidence was not challenged as the driver was not called to testify.

Furthermore, PW6, the traffic Police officer who visited the accident scene ruled out the elements as a possible cause or contributor to the accident when he stated that the weather was dry, visibility was good, the road surface was tarred and smooth and the road was straight. He did observe however, tyre skid marks measuring approximately 100 metres starting from point 'A' on the sketch map (Exh. P18) right across the road to point 'B' in the swamp where the vehicle rested as it overturned. From the sketch map, it is clear that the vehicle crossed the road from its rightful side (the left side) and ended up in the swamp on the right hand side of the road. According to PW6, the skid marks are a sure sign that the driver was travelling at an excessive speed in contravention of the normal speed limit for public service vehicles which is 80k.p.h. Because of the excessive speed at which he was travelling, the driver was unable to effectively brake when the front tyre burst, thereby losing control of the vehicle that landed on its roof in the swamp across the road. The evidence of PW6 was not challenged and is in my view credible. Its clear from the authorities cited above that the driver of the public service vehicle had a duty of care towards, his fare-paying passengers to drive them safely to their destination. The duty of care entailed ensuring firstly that the vehicle including the tyres were in a fit and proper condition. Secondly, he had a duty to drive at a speed, which in the case of publi $c$ service vehicles in Uganda, should not exceed 80k.p.h on the highway, and $50k$ , p.h in towns and cities. In my view the unchallenged evidence of

6 Amended Plaint, paragraph 5.

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witnesses PW1, PW3, PW4 and PW6 proves on the balance of probability, that the driver of motor vehicle UAG 210 was travelling at an excessive speed as he descended the slope to the point where the front tyre of the vehicle burst. A combination of the excessive speed and the burst tyre led to the driver's loss of control of the vehicle, which skid across the road and landed on its roof in the swamp across.

Furthermore, the manner in which the tyre burst, namely tearing from the inside out and exposing the threads, is a clear indication that the tyre was of a substandard quality and should not have been used on the vehicle. I find that the driver of motor vehicle UAG 210 breached his duty of care towards his fare-paying passengers thereby endangering their lives. I find that the accident was caused by the negligence of the Defendant's driver and resolve the first issue in the affirmative.

Issue No.2: Whether or not the accident was inevitable.

The Defendant pleaded in the alternative, that the accident was inevitable and could not have been avoided by the exercise of care and skill by the driver after the front tyre burst.7 The particulars of the "inevitable" accident" were pleaded as follows:

- $(i)$ a brand new front tyre type Bridgestone size 185 $x$ 4 on the driver's side burst suddenly: - the vehicle was going down a steep hill; $(ii)$ - the vehicle pulled and swerved to his right and overturned on the driver's (iii) *side.* $\cdot$ 8

The Defendant contends that the driver had no control over the sudden front tyre burst and that the resulting accident was inevitable and could not have been avoided. The Defendant further avers that the said vehicle was as good as new, newly imported into the country, newly registered and had been used on the road for only two weeks; that it was roadworthy and in a very sound mechanical condition.9 Counsel for the Defendant submitted that the Defendants vehicle was virtually new and had been on the road for only three weeks and that it was fitted with new tyres. In the Vehicle Inspection Report (Exh. P19) the vehicle was certified as having "no mechanical defects" and "not being in a dangerous mechanical condition", which must have included the condition of the tyres.10 Counsel argued further that if the tyre burst was due to a factory defect as

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&lt;sup>7 WSD, paragraph. 8.

&lt;sup>8 WSD, paragraph. 8(i) to (iii).

&lt;sup>9 WSD. Paragraph. 9.

&lt;sup>10 Defendant's written submissions

supposed by the Inspector of Vehicles (DW2), then the Defendant could not have foreseen that defect and could not have avoided it. In conjunction with this argument, Counsel discredited the Plaintiffs evidence of the driver's alleged over-speeding, arguing that the warning bell starts ringing when the driver exceeds 110k.p.h, and that none of the witnesses (PW1, PW3, PW4, or PW6) was certain about the exact speed at which the driver was travelling. As such, Counsel argued, the accident could not be blamed on any reckless conduct of the driver, and was unavoidable

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The defence of "inevitable accident" is essentially a denial of negligence; a denial that due care was not exercised. The defence is in effect another way of saying that the defendant has not been negligent and that carelessness (which is an essential ingredient of liability) has not been established. The success of the plea depends on the facts of each case, and the onus is on the defendant who alleges that the accident was inevitable, to prove so.11 For example in the case of **Inter-freight** Forwarders (U) Ltd. v East African Development Bank, Supreme Court Civil Appeal 33 of 1992, the Supreme Court accepted as plausible, the Defendant/Appellant's explanation that he could not have avoided the vehicle accident despite the exercise of due care and skill, because of the poor state of the road and an on-coming speeding bus. Factors beyond the Defendant's control led to his sudden braking which led to the collision with the Plaintiff's car.

In determining this issue, I have taken into account the evidence of PW1, PW3, PW4, PW6, DW1 and DW2. The unchallenged evidence of PW1, PW3 and PW4, all of whom were passengers in the accident vehicle, was that the driver was travelling at an excessive speed which in their estimation exceeded 110k.p.h. Secondly, each of them heard a warning bell ring, signifying that the driver had exceeded the permissible speed limit. While Counsel for the Defendants argued that the speed bell starts ringing when the speed exceeds 110k.p.h, no evidence was led by either party as to what speed the bell in the Defendant's bell was actually set. Be that as it may, PW6 who was the traffic officer with considerable experience and who inspected the accident scene told the court that the skid marks he found measuring approximately 100 metres long were $\alpha$ sure indication that the driver had exceeded the permissible speed limit of $f$ 80k.p.h for public service vehicles. In the opinion of PW6 and based on his professional experience the driver could have been driving at

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&lt;sup>11 Rylands v. Fletcher, quoted in Clarke and Lindsell on tort, 13th Edition, paras 123, 975. # **-J?**

approximately 130k.p.h when the accident occurred. This evidence, as I have already noted, was not challenged.

passengers, and secondly, of the other road users. That duty of care entails doing everything possible to control the vehicle when a tyre unexpectedly bursts while the vehicle is in motion. By over-speeding, as he did in this case^the Defendant's driver denied himself of any chance ofremaining in control ofthe vehicle or of carefully manoeuvring it to a halt without injuring his passengers. I find in the circumstances thatThe defendant has not proved the validity of his defence. I find instead that the accident was not inevitable and could have been avoided had the driver been driving at a reasonable speed. ~~ ~~ DW2, the Inspector of Vehicles told court that the vehicle was in "good mechanical condition" before the accident. According to DW2, he could not tell what caused the front tyre to burst but explained that this could have been due to a number of factors including a manufacturer's defect, overheating, excessive tyre pressure, or a simple puncture. In his. view, the tyres were not old. Although the cause of the tyre burst was not established, what is certain is that after the tyre burst, the driver was no longer able to control the vehicle due to the fact that he was travelling at an excessive speed. As PW6 observed, when a tyre bursts during motion, it is usually easier to keep the car under control when one is driving at a fairly low speed. The question then is whether the driver could reasonably have been expected to control the vehicle and to avoid the accident after the tyre burst. In my view, the driver of a public service vehicle should take extra care on the road in ensuring the safety firstly of his fare-paying 7

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## Issue no.3: Whether or not the Defendants is vicariously liable for his driver's negligence.

Having found that the Defendant's driver was liable in negligence, the question I must determine next is whether the Defendant, as a registered owner of motor vehicle UAG 210 and employer of the said driver, is vicariously liable. In this regard, the Amended Plaint merely states that, "The said vehicle was at the material time being driven by the Defendant's driver, servant or agent called Daniel Sessanga who was acting in the ordinary course of his duties." PW1 told court that all 14 passengers aboard the vehicle were fare-paying passengers, paying Shs.3.000/= each for one way. However, the Defendant contents in the WSD that "the driver of motor vehicle Reg. No. UAG 210 acted contrary to instructions when he abandoned his normal Kampala Taxi park,

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12 Amended Plaint, paragraphs 4(b) and 5

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a journey to Bulemezi consent. The Defendant Rubaga Road Mengo route/ stage and took on without the Defendant's authority, permission or therefore contends that liability for the accident cannot be imputed to him because the said driver was not acting in the course of his employment and was on a frolic of his own."13 The Defendant further avers that "the Plaintiffs were not fare-paying passengers."14

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Case law has defined the parameters of vicarious liability. There must exist a master/servant or principal/ agent relationship and secondly, the servant/ agent must have acted within the course of his duty: **Muwonge v. Attorney General [1967]** EA **17.** Further, case law has established that an employer may be liable for the acts of his servant of done in an ordinary course of employment, even if the act was done contrary to the express orders of the employer or even where the servant's acts negligently, recklessly or for his own benefit. If what he did is merely carrying out what he was employed to carry out, then the master/employer is liable: **Muwonge v. Attorney General (Supra); Kafumbe- Mukasa v. Attorney General (1984) HCB 13.**

The evidence on this issue was as follows: The Defendant's vehicle was registered as a "public service vehicle" and had the letters 'PSV' posted on it. It was used as a taxi (popularly known as "Mztatu"). Other than that, there was no indication of the route where the taxi was supposed to operate. PW1 testified in cross-examination that he was aware that the normal route of that particular taxi was Bunamwaya-Kampala and sometimes Mengo-Kampala. PW1 further stated that he personally negotiated with the driver to transport the 14 passengers, all of whom went together to attend a funeral at Bulemzi, at a fare of Shs.3.000/= per passenger. Furthermore, the driver was to pick the same passengers up after the funeral and return them from Bulemezi to Kampala. Some ofthe passengers, including the four Plaintiffs, boarded the taxi at Bunamwaya, whilst others were picked up at Kasubi. PW3 and PW4 confirmed that their father PW1 took care ofthe transport arrangements including paying their respective fares.

DW1 the Defendant admitted that his vehicle was registered as a "public service vehicle" and licensed to operate as a taxi and that the driver-, whose name he had forgotten, was his employee. He stated that the taxi was supposed to operate between Kasubi and Rubaga Road and that his driver was under strict instructions to operate only along those routes anc!

13 WSD, paragraph. 5.

14 WSD, paragraph. 6.

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to park the vehicle at the Defendant's house by 7pm each day. DW1 stated that he never authorised his driver to operate outside the two routes and that he forbade the driver to use the vehicle as a "special hire taxi". He maintained that the driver, acting contrary to the Defendants instructions, had decided to drive to Bulemezi and to hire out the vehicle to the Plaintiffs and others as "a special hire taxi". Counsel for the Defendant argued in light of DW1's evidence that the driver was at the time of the accident "on a frolic of his own" for which the Defendant, hīs employer, could not be held liable. The frolic, Counsel argued, consiste d of using the vehicle as a "specially hired" vehicle and also embarking on an authorised route, both of which were contrary to the Defendant's instructions

Counsel for the Plaintiffs argued however, that the Defendant's vehicle was registered as a public service vehicle and that there was no form of $f$ registration with the taxi park authorities as to where the taxi was to operate. Counsel also argued that in the absence of any inscription on the taxi of the limited routes where it was authorised to travel, the Plaintiffs were entitled to assume that the taxi could operate anywhere in Uganda and once the driver had accepted to transport them to Bulemezi, they were entitled to believe that he was acting lawfully.

The onus is on the Plaintiffs who allege vicarious liability, to prove that the Defendant is indeed vicariously liable for his driver's negligence. In this regard, I have taken into account the following. It is not in issue that the Defendant was at the material time, the registered owner of motor vehicle UAG 210 and that the said vehicle is a "Public Service Vehicle", meaning that it was licensed to transport members of the public. Both parties agree that this was the case. The Defendant also admitted that the driver of the vehicle was indeed his employee as the material time and that he was authorised to operate the vehicle as a taxi. The question is whether it can be said that when a driver contracted to take the Plaintiffs and others to Bulemezi, he was acting outside the course of his employment?

In my view, when a taxi operator puts his vehicle on the road and invites members of the public to ride on it unconditionally, he is presumed to be acting lawfully unless by some clear notification, he fore-warns those members of the public that his taxi is limited to travelling on a given route. If members of the public as passengers approach the driver or conductor of the public service vehicle who agrees to transport them to a given destination for a fee, they are justified in presuming that he is acting lawfully; for how else are they supposed to know his limitations,

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seeing that they are not privy to his master's instructions given privately • to the servant? .

It follows that when PW1 approached the Defendant's driver on the morning of 26 February 1994, the latter was lawfully carrying out his duties as a taxi driver. When PW1 proposed that the driver transports him and 13 others for a fee to Bulemezi and the driver accepted, PW1 was entitled to believe that the driver was acting lawfully, seeing there was nothing written on the taxi to indicate otherwise. The driver could have refused to take the Plaintiffs to Bulemezi, citing his master's instructions but he did not. Instead, he collected a fare of Shs.3.000/= from each passenger and embarked on the journey. As Counsel for the Plaintiffs rightly observed, for all intents and purposes, the driver was doing what he was employed to do, namely transporting members ofthe public for a fee, albeit contrary to the Defendant's instructions not to operate outside the designated routes. In my view, an owner who sends out his taxi driver to operate his public service vehicle unconditionally, without publicly or expressly displaying for the benefit of the public the route that the taxi is authorised to operate, thereby holding out his vehicle as duly authorised to operate anywhere, cannot afterwards plead that his driver was under restriction as to the route he should operate. I agree with the Plaintiffs in this regard and hold that the Defendant is vicariously liable for his driver's acts. I resolve the third issue in the affirmative.

## Issue No.4: Whether or not the Plaintiffs are entitled to the remedies sought.

This brings me to the last issue of remedies available to the Plaintiffs. In their Amended Plaint, the Plaintiffs claimed general damages for personal injuries sustained and for pain suffered; special damages totalling Shs.895.700/= comprising *inter alia,* medical bills and incidental costs.13 The Plaintiffs also adduced unchallenged evidence of their personal injuries as well as the expenses they incurred. The main objective of" awarding damages is to compensate the successful complainant for loss suffered as a result of the defendant's tortuous acts committed against him. In monetary terms, that means that the injured party must as far as is possible, be restored to as near a position as that in which he was before the wrong complained of occurred.16 In assessing the adequacy of compensation the court takes into account a number of factors including the status ofthe Plaintiff, the degree of pain or injury suffered or damage sustained; the purchasing power or value ofthe sum awarded.

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15 Amended Plaint, paragraphs 6, 7 and 9

16 Phillip v Ward [1956] I All ER 874.

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Special Damages: These must be specifically pleaded and strictly proved. The Plaintiffs claimed a total of Shs.890.700/ $=$ being the cost of food, drugs and transportation while they were receiving medical treatment. Various receipts were exhibited in court (Exhs. P1-P9) and were not contested. The plaintiffs also claimed Shs.5.000/ $=$ as fees for the Police accident report. I am satisfied that the Plaintiffs have proven this head of damages and award them Special damages of Shs. 895.700/= as sought.

General Damages: According to the medical reports written by Professor Ssekabunga the Plaintiffs sustained the following injuries:

Christopher Kisitu (1st Plaintiff) aged 44 years at the time of accident sustained a fracture of the left humerus and an extensive wound on the left hand. The fracture healed but the wound on the left hand had to be treated with extensive skin grafting and eventually left a deep scar. All the fingers on his left hand are not able to extend or flex. The surgeon assessed permanent disability of the hand at 50%.17 The 1st Plaintiff attested to suffering trauma, shock, pain and loss of consciousness as a result of the accident.

Ronald Walusimbi (2nd Plaintiff) aged 13 years at the time of accident sustained internal injuries and was vomiting blood when he was admitted at Mulago. He suffered laceration of the gastrosplemic ligament and was hospitalised for nine days. His injuries healed with time leaving him with no permanent disability.18

Brian Katagirya ( $3rd$ Plaintiff) aged 15 years at the time of the accident sustained trauma to the head and kept complaining of headaches. He also sustained a minor shoulder wound which healed. His headaches settled leaving him with no permanent disability.19 PW3 also attested to suffering trauma, shock, pain and loss of consciousness as a result of the accident.

George Kasozi (4th Plaintiff) aged 20 years at the time of the accident sustained a deep wound on the left side of the face extending to the scalp. The wound was stitched and healed leaving a scar. He suffered from intermitted headaches which, in the doctor's opinion are likely to settle

17 Exhibit P14

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19 Exhibit P16

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leaving him with no permanent disability.20 PW4 also attested to suffering trauma, shock, pain and loss of consciousness as a result ofthe accident.

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**b**

*IS'* **(**

The above evidence was not challenged. Counsel for the Plaintiffs proposed a sum of Shs.l3.000.000/= as general damages for Christopher Kisitu and of Shs. 1.500.000/= for each of the other Plaintiffs. He relied on the cases of **Sulaiti Kityo v. Uganda Consolidated Fund & Bossa Muhamed (HCCS No.777 of 1989)** where the plaintiff suffered 40% permanent disability and was awarded Sh.10 million. He also cited **Deo Ndawula & Others v. Salim Lumago Kalondozi (HCCS No. 497)** where the Plaintiffs disability was assessed at 40% and court awarded him Shs.8.5 million. I find Counsel's proposals reasonable in the circumstances. However, taking into account the lapse of time and inflation I think the figures proposed should in the interests ofjustice be slightly increased. The Plaintiffs having succeeded are also entitled to the costs ofthis suit. In the premises, I find for the Plaintiffs and award them the following remedies which are to be paid for by the Defendant:

- Special damages of Shs.895.700/= . (a) - General damages of Shs.15.000.000/= for Christopher Kisitu and Shs.3.000.000/= for each ofthe other Plaintiffs. (b) - (C) Interest at court rate on the general and special damages from the date ofJudgment until payment iffull. - **(d)** Costs ofthis suit.

Before I take leave of this matter, let me take this opportunity to apologise to the parties for the delay in delivering this Judgement. This was due to unforeseen exigencies arising out of other official duties that I had to perform in the interim both in and out ofthe country. *f*

**J. Sebutinde** (Judge) 9/02/09

20 Exhibit P 17

**[**

**I**

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

## **CIVIL DIVISION**

#### CIVIL SUIT NO.0651 OF 1994

- **CHRISTOPHER KISITU** 1. - $2.$ RONALD WALUSIMBI - 3. BRAIN KATAGIRYA - 4. GEORGE W. KIGOZI 2nd to 3rd Plaintiff suing by their next friend **Christopher Kisitu**

#### **::::::::::::::::::: PLAINTIFFS**

#### **VERSUS**

#### ABUBAKER GAANYA

#### **::::::::::::::::::: DEFENDANT**

#### **DECREE**

This suit coming up for final disposal, this 7th day of April 2009, before Hon. Lady Justice Julie Sebutinde in the presence of Mr. Kato Sekabanja Counsel for the plaintiff and in absence of Counsel for the defendants.

#### IT IS HEREBY ORDERED AND DECREED THAT.

- 1. The defendant's driver was liable in negligence and the defendant vicariously liable for his driver's act. - 2. The plaintiffs are awarded the following remedies: - Special damages of $895,700/$ = (eight hundred ninety five thousand seven hundred $(a)$ $only)$ . - General damages to Christopher Kisitu of $15,000,000/$ = (fifteen million only). $(b)$ - General damages of Shs.3,000,000/ $=$ to each of the other plaintiffs, Ronald $(c)$ Walusimbi, Brian Katagirya and George W. Kigozi. - 3. Items (1) and (2) above shall carry interest of court rate from the date of judgment till payment in full. - 4. IT IS FURTHER ORDERED that the plaintiffs be awarded taxed costs of the suit.

hand and seal of this Honourable court this $m\psi$ REGISTRA R EXTRACTED BY M/S SEKABANJA & CO. ADVOCATES PLOT 7, KAMPALA ROAD, P. O. BOX 2064 KAMPALA