Musisi & 3 Others v Sietco (U) Limited (Civil Appeal 24 of 1993) [1994] UGSC 31 (25 March 1994)

Full Case Text

## AT MENGO

(CORAM:

MANYINDO, D. C. J., ODOKI, J. S. C. & PLATT J. S. C.)

# CIVIL APPEAL NO. 24 OF 1993

#### BETWEEN

MUSISI DIRISA FRED KYABAFFU **::::::::::::::::: APPELLANTS** DANIEL SENTONGO STEVEN KIZZA

#### $A$ $N$ $D$

SIETCO (U) LTD :::::::::::::::::::: RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala (Ongom $\overline{J}$ ) dated 26th April 1993)

Civil Suit No. 25 of 1989

### JUDGMENT OF THE COURT

The four appellants brought an action against the respondent and Uganda Transport Company (1975) Ltd, claiming general and special damages for personal injuries they sustained when the bus belonging to UTC in which they were travelling was involved in an accident with the respondents. road grader, at Nakawa along the Kampala/Jinja Road, on 10 May 1988.

The trial judge found that the respondent was solely responsible for the accident. He however found that the appellants had failed to prove that they were fare-paying passengers on the bus at the material time or that they sustained the injuires in the accident. The learned Judge gave six reasons for coming to this conclusion, and dismissed the suit with costs.

Hence this appeal.

$\blacktriangledown$

There are three grounds of appeal which are as $follows_i-$

- The learned trial judge erred in law and in 1. fact when he dismissed the appellants' suit with costs to the respondent. - 2. The learned trial Judge misdirected himself in law and in fact when he rejected the expert medical evidence of Professor Sekabunga. - The learned trial judge erred when he proposed to award the appellants inordinately low 3. general damages which are erroneous estimate of those to which the appellants are entitled.

Mr. Mugabi for the appellants and Miss Mulyagonja for the respondent submitted written arguments under Rule 97 of the Rules of the court, and were not required to address the Court.

On the first ground of appeal counsel for the appellants attacked the six reasons given by the trial judge for dismissing the suit. According to the learned judge he found after a careful consideration of the evidence that the appellants case was wanting in the following respects;

"Firstly, they had neither bus tickets or medical forms to produce to court to prove that they were fare-paying passengers in the said bus and sustained personal injuires Secondly, none of them saw the grader in the said accident. hit the bus albeit all of them except Fred Kyabaggu (PW1) sat on the side hit by the grader. Thirdly, no police traffic accident report (TAR) was produced listing the particulars of victims of the accident taken to Mulago Hospital.

Fourthly, except for Daniel Sentongo (PW2) whose testimony somewhat tallied with his pleadings and Professor Sekabungu's report (Exhibit P.3) all the plaintiffs abandoned their

$\ldots, 3.$

pleadings and were not supported by Professor Sekabunga. Fifthly, Daniel Sentongo (PW2) even claims that the 10/5/88 was a day for commemorating the Uganda Matjrs Day a clear falsehood. Sixthly, Professor Seknbunga's medical report on each of the plaintiffs was not supported by ' medical records obtained from Mulago Hospital where all of them were either treated or examined shortly after the accident, They were based on what the plaintiffs told him and his • hearsay observation11

judge for expecting the appellants to produce bus> tickets when there was no evidence to show that they\*, were issued with the tickets and for expecting them to keep the tickets for five years after the accident. He contended that the respondent had admitted by implication that the appellants were passengers on the bus and that they were **infurai** in the accident because that question was never framed as an issue.. /criticised Mr. Mugabi for the appellant "J?\*... T the learned

At the atrial, the following agreed issues were framed: 1\* Whether is was the first defendant who was negligent. 2. Whether it was the second defendant who was negligent. 3- Whether both defendants were negligent. If so in what proportion.

4. Quantum of damages to which the plaintiffs are entitled, if any.

an issue but it seems from the pleadings and the crossthe trial. Mr. Mugabi is right in saying that the question whether the appellants were on the bus was not framed as examination of the appellants that it was an issue during In the written statement of defence the •

../\* i

appellants pleaded in para. 3 that

"it is not admitted that the plaintiffs were passengers in the second Defendants motor vehicle".

In cross examination, the appellants were crossexamined as to whether they were on the bus and whether they paid any fares. They asserted that they were on the bus and were issued with tickets which they did not produce and failed to explain what had happened to them. We think they should have produced the tickets or explained what had happened to them.

However, the respondent called no evidence to challenge the claim of the appellants that they were on the bus as farepaying passengers. Moreover, we do not see the relevancy of the question of fare-paying passengers in respect of the claim against the respondent. That question would only have affected the liability of the second defendant, Uganda Transport Company, who was found not to have been negligent.

The issue as to whether the appellants sustained injuries in the accident was not specifically framed as an issue. But is also clear from the pleadings and the evidence that it remained a live issue. Faragrap. $\tilde{6}$ of the respondent's written statement of defence pleaded that

> "No admission is made as to the alleged damage or loss and injuries claimed and accordingly................. plaintiff will be put to strict proof thereof".

The injuries sustained by the appellants were therefore put in issue, and accordingly there was no admission by implication. Indeed the question of what injuries were subtained by the appellants can be said to $.../5$

to have been pabt and parcel of the fourth issue framed, namely, the quantum of damages to which the appellants were entitled. Any assessment of damages is based on the ' injuries proved to have been sustained as a result of the accident, and in our view if the injuries cannot be established, no general damages can be awarded. The issue in this appeal is therefore whether the appellants proved that they sustained the injuries pleaded to justify the award\* <«f damages.

There are at least three reasons given by the learned judge which are directly relevant to the issue of injuries sustained by the appellants. The first was that no police traffic accident report was produced listing the particulars Mr. Mugabi passengers on the bus sustained injuries as a result of the accident, the evidential burden shifted to the respondent to disprove that testimony by producing the Police Traffic Accident Report, if they so wished. of the victims of the accident taken to Mulago. submitted that once the appellants testified that they were

appellants. defendant unless there is cogent and credible evidence produced by the plaintiff on the issue. In this case there was no such evidence as will be seen later, and the burden remained on the appellants to prove the injuries they sustained in the accident. A traffic accident report as an t independent piece of evidence would have given some corroboration to their evidence. We are unable to agree with the learned Counsel for the The evidential burden does not shift to the

The second reason given by ihe learned Judge was that tallied with his pleadings and Professor Sekabunga's report "except for Daniel Sentongo (PW2) whose testimony somewhat

.../6

(Exhibit P. J) all the plaintiffs abandoned their pleadings and were not supported by Professor Sekabunga". According to the plaint , the first appellant sustained "multiple fractures", But he testified that he sustained only a wound on the left thigh. The first appellant's evidence was clearly at variance with his pleadings. In the pleadings, the second appellant claimed to have suffered abrasion". But in his evidence he claimed to have sustained a fracture of his left arm which was plastered with plaster of Paris. If he sustained a fracture why did he not plead so? The third /appellant pleaded that he sustained "multiple fractures". But in his testimony he claims that his arm was amputated. It is not clear what type of multiple fractures were sustained or whether they gave rise to the amputation of the arm. "injuries and

The disparity between the pleadings and testimony of the fourth appellant as well as the report of Prof. Sekabunga is even more glaring. In his pleadings he is stated to have suffered ''multiple fractures". But in his eveidence he stated that he lost an eyeball and suffered a cut on the left limb. of the right leg, loss of 4 upper incisor teeth and loss of sight in one eye. It is not possible to tell from these contradictory claims what injuries this appellant sustained. As Miss Mulyangonja submitted, Counsel for the appellants should have amended the pleadings before the hearing to make the appellants claims tally with the medical reports, instead of relying on vague statements like As if that discrepancy was not enough, Prof. Ssekabunga testified that the appellant had a fracture "multiple fractures". We think that the trial judge was correct in saying that the

• >./7

appellants had abandoned their pleadings as far as particulars of injuries were concerned. The third reason given by the learned judge was that Professor Ssekabunga's medical report on each of the appellants was not supported by any medical records obtained from Mulago Hospital where all of them were either treated or examined shortly after the accident, but were based merely on what the appellants told him and on his hearsay observations. Mr. Mugabi for the appellants submitted that there was no evidence to show that Prof. Ssekabunga did not consult medical records from Mulago Hospital before preparing his medical reports. But there was no evidence that he did refer to these medical records. Moreover, the appellants did not seem to have kept their medical forms. Professor Ssekabunga must have relied on his own superficial examination of the appellants I'ing , after the accident. He relied mostly on what the appellants told him. His opinion was not supported by clinical or radiological reports, without which such expert evidence is of little or no value. We are unable to say that the learned trial Judge was wrong in not relying on it.

It seems to us therefore that the learned judge found the evidence adduced by the appellants as to the injuries they sustained contradictory, inconsistent and unreliable. The appellants therefore failed to establish that they sustained in the accident the injuries pleaded. In view of the evidence on record, we are unable to say that the learned judge came to a wrong conclusion. The first ground of appeal must fail.

On the second ground of appeal, appellants contend that the trial judge misdirected himself when he rejected

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*•»* k

the expert evidence of Prof. Ssekabunga. It was submitted that the reason given by the learned judge for rejecting the expert's evidence was not sufficient. The learned rejected Judge/Prof. Ssekabunga's evidence because the Professor had made only a casual examination of the appellants but not detailed medical examination. For the reasons re have already given the learned Judge was correct in rejecting his evidence on the injuries sustained by the appellants.

A doctor or any expert witness must provide a scientific base for his opinion before his findings can be accepted by the Court. This scientific base was lacking in this case. This ground of appeal must also fail.

We find it unnecessary to consider the third ground of appeal which deals with quantum of damages in view of our findings on the first two grounds of appeal.

We accordingly dismiss this appeal with costs to the respondent here and in the court below.

25th March DATED at Mengo this .. $\dots$ day of 1994

#### S. T. MANYINDO DEPUTY CHIEF JUSTICE

## B. J. ODOKI JUSTICE OF THE SURREME COURT

#### H. G. PLATT JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COFY OF THE ORIGINAL. A. L. KYE REGISTRAR SUPREME COURT