Nakaabe v Rwabuya (Civil Suit 422 of 1993) [1995] UGHC 37 (20 November 1995)

Full Case Text

## THE REPUBLIC OF UGANLA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 422 OF 93

1. ANNEP NAKAABE

#:: 6 # # # 2 # \$ # 2 # # # # # # # # # # # # 2. MARY NAKIBUGNE

VERSUS

RNABUYA GASTER: 822222 22 22 22 22 22 22 22 22 22 22 22 THE HONOURABLE MR. JUSTICE I. MUKINZA. BEFORE:

# JUDGMENTa-

The plaintiffs are minors aged 19 and 15 years respectively and were suing by their next friend One Moses Lule. They sued for general damages for the injuries sustained by them when they were knocked by a Mercedes Benz owned and driven by the defendant. However during the course of the trial Mr. Kityo withdrew the suit of Mary Nakimbugwe the second plaintiff in accordance with order 22 rule 1 of the civil procedure rules.

The facts constituting the cause of action were that on or about the 13th day of November 1992 at 9.00 p.m. or there about the plaintiff together with Mary Nakimbugwe were lawfully walking along the road at Kabalagala Muyenga Road near Kampala when they were knocked down by motor vehicle Mercedes Benz Registration NO. UPY 064 owned and driven by the defendant thereto and marked annexture $A_s$

This case came before this court for assessment of damages commonly known as formel proof in pursuant to order 9 rule 6 of the civil procedure rules in that the defendant was served with summans to enter appearance on plaint but neither entered appearance nor filed in his written statement of defence in compliance with order 9 rule 1 of the civil procedure rules,

The plaintiff examined horself as PW2 and Dr. Sekabunga gave evidence in support of her version as PW1.

The evidence of the Doctor PM was to the effect that he works as a surgeon at Mulago Hospital and prefessor of surgery at Makerore medical school.

During the course of his duties he came across the plaintiff. $.../2.$

Hq saw her on 11th Febraury 1994 for the purpose of writing a medical report. He examined, her and. made a report on 16th February 1994. The plaintiff told her that she was walking along the road side when she was knocked down by a motor vehicle on 13th November 1993. She was taken to Nsambya Hospital. On examination she was unconscious. She had a womd. on the left handside of her face. The wound was stitched and, dressed **end** she was treated with antibiotics. Sho regained consciousness and sho **W3** discharged on 3rd December 1992. She was seen again on. 4th January She was given analgesics for heads.

When she saw her on 11.1.94 she had a scar on the left side of the face she stated that she had not gone back to school where she was a pupil booausa of rqcurrent headaches,. She did not hc^ °ny disahillj^ She just complained of recurrent headaches. The scar was about three inches by two inches. It is on thQ left side of the head. The scar affects her appearance. There is no hair at the spot (The court **observed** the ghastly soar of the 1st (plaintiff) she opant about £0 days in Hospital she had pajn of \_ the, wornd, she was unconscioys and .th^\_brajjl was disturbed. It is the injury responsible for the cause of her recurrent headaches, ^he medical1 report was tendered in evidence as exhibit P1.

Whan cross examined by the court FW1 replied that the recurrent heads could affect her studies. She could npt oonoetrate^ on her -studies,. It is not possible to say there is a cure. It may continue for ever.

In her testimony PW1 informed the court that she was aged 21 years. She had ever gone to school and she was one time a student at Machary College at Natete and stopped in Senior IH. She is no longer studying. . After the accident she had a strong recurrent headaches. She tried to goto school but could not manage-.

1 3th November 1992 they were walking from Kabalagala where they had gone to buy things. Sho was together with their house girl and they were walking on their left hand sid© and that was on Muyenga Hoad when a vehicle came from behind and knocked her together with the house girl.

: 2 S

The time vias 9,00 P.m. She became unconscious, She gained her consciousness a week after and that was in Nsambya Hospital, She sustained a big wound cn her head and felt pain in the chest. She spent about one month while hospitalised and after being discharged she kept on reporting to Hospital as an outpatient. She was discharged with some stitches and was told to go back and have the stitches removed. She still felt some pain in the chest and also feels dizzy and complete discomfort plus her eyes which arg also affected. She reiterated that she had never gon£ back to school, She tried and failed. She could not stay in the public. She hated noise and could not read. Her eyes were blurred and she could not' see properly\*

^he submission and evidence show that the issue of negligence is no longer an issue since maxim Resipsa loquter. The plaintiff/witness PW2 sustained awound on the left hand side of the head. The court observed. a big ghastly scar on the head and this scar definately affected her ' socially and tarnishes the appearance of her face. The plaintiff also ccntravts recurrent headaches which affected her studies. She was unconscious for about a week and she spent about 20 days in hospital. The injuries appear to have been severe one, The learned counsel prayed that the plaintiff be awarded, general damages of Shs. 1.8 million. The counsel did not back up the award with any authority a matter which he should have dene, Nonetheless I have endeavoured to look for some authorities, I& Christopher Matoyu vs, Brirna Mpkalazj and Ajgimada JSebanakita 1979 HCB page 104, The plaintiff of the apparent ago of 11-^ years was involved inroad accident and sustained a close fracture of the left femur and a bruising of the right forehead (injury to the brain). According to the medical report the plaintiff was as a result of the injury lethargic, lacking in initiative, indifferent to his situtation mentally slow, practically unconscious and succeptible to minor epileptic fits which would become more severe and frequent. He had lost chances of academic schooling and would remain a social and economic liability to his relatives.

The plaintiff was awarded general damages of shillings 15O.000/=,

In Joseph Kaggwa vs. Beta limited, and 2 others 1971 Sigh Court monthly Bultatin apftrorders page 332 (civil suit NOo 24 of 1971). The plaintiff *a* 54 year old coffee buyer sued Masaka farmers and produce Ltd for damages arising out of an accident in which she suffered serious injuries. As a result of the accident he became unconscious for two weeks. H© had a huge wouhd on left eye as a. result of which she could not see at all except with glasses and damage to the back of his left for which he had to have skin drafting operation done. The plaintiff attributed negligence to the defendants driver and claimed damages among which were pain and suffering caused by injuries discomfort inconvenience of the slun drafting operation and for remaining in the Hospital for three months. He was awarded among others general damages for pain and suffering loss of amenity and loss of future earning which was assessed at Shs. 18.000/=«

? 4 s

In livingstone Sebutu and 3 others vs. Semuto Cooperative Society Ltd 1979 HCB p 194 (civil suit No, 765 of 1977).

The plaintiff's claim against the defendant was for special and general damages for injuries loss and damage suffered when the defendants vehicle overturned in an accident and injured the plaintiffs who were fare passengers therein,.

The first plaintiff sustained head extensive injuries which according to. medical evidence opposed him to the high risk of post traumautic epilepsy. His permanent ability was assessed at 60%=, Shs. 60.000/= was awarded as general damages.

Whereas in Moses Bgau vsa Ojur 1979 HCB page 29\* The plaintfff was hit on the head by the defendant at aparty sustaining a closed head injury with cinear fracture frontal bone. He did not have any abnormality in the chest to indicate previous abrasions. H© sustained bruises and abrasion infrent of the neck due to strangulation\* He made good recovery shillings 15. OOo/= were awarded as general damages.

And finally in the case of George Wjlliam Bumba V5-» Phillip Okech-19 74 HCB page 158« Th© plaintiff a cultivator aged 30 was knocked down by the oar driven by the defendant on Kampala Mityana Road, The plaintiff • <./5<

had been walking near the tarmac and the defendant had approached from behind. His speed was 45 to 60 miles per hour. The plaintiff had crossed the road without taking due care to see that it was safe to do so. The road was clear and the defendant had failed to avoid the plaintiff. Among the damages awarded to the plaintiff was that as regards injury to the head. He was awarded general damages of Shs. 75.000/= which was reduced to 18.750/= as a result of contributory negligence.

With those authorities in mind the plaintiff was a young lady aged 18 at the time of the accident she had sustained ahead injury with aghestly scar noted by the court she had no permanent disability. She was unconscious for about a week and was hospitalised for 20 days. She had recurrent heads and blurred sight and because of that she could not get back to achool. In fact she has a brain damage. The doctor testified that there is no cure to her recurrent heads and that it may continue for ever. Taking into account the inflation in the country and the fact that when the referred to cases supra were decided the shillings was very strong.

Doing my best in the circumstances the plaintiff has proved her case on a balance of possibilities. I am of the firm view that shillings 1.5 million $(1.500.000/=)$ will properly compensate the plaintiff as general damages for injuries sustained by her plus pain and inconveniences. Plaintiff is also awarded costs and interest at court rates from the time of the delivery of this judgment till payment in full.

> I. MUKANZA JUDGE 20.11.1995.

### 20, 11, 1995:

Mr. Kityo for the plaintiff - present.

$P_{\text{Paintiff}}$ - absent.

Court: Judgment is read and signed.

I. MUKANZA JUDGE

$\overline{5}$