Nakawungu v Kafureka (Civil Suit 19 of 1993) [1994] UGHC 73 (7 September 1994)

Full Case Text

The Hor. Mr. Instice Finds. Egonder

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGAND. AT KAMPALA CIVIL SUIT NO. 19 OF 1993

JAME MAKAHIMAN $\begin{smallmatrix}&&1\\1&1&1&1&1&1&1&1&1&1&1&1&1&1&1&1&1&1&1$ **PLAINTIFF** VRS. $\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}\left(\mathcal{A}\right)=\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}\left(\mathcal{A}\right)=\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}\left(\mathcal{A}\right)=\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}\left(\mathcal{A}\right)=\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}\left(\mathcal{A}\right)=\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}\left(\mathcal{A}\right)=\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}\left(\mathcal{A}\right)=\mathcal{L}^{\mathcal$ H. K. KAFUREKA realistic result $\mathcal{G}_{\mathcal{A}}$ DEFENDANT BEFORE: THE HON. MR. JUSTICE G. M. CKELLO

## **.ТИЭНЮЕИТ:**

**Alberton**

In this action the Plaintiff June Nakawungu claims against the defendant general and special damages for personal injuries and losses inflicted on her when she was knocked by the Defendant's metor vehicle No. UPP 247 which was allegedly being friven by the defendant's servant or agent. The plaintiff also claims cost of the suit.

As a back-ground, the Plaintiff was on $23/3/92$ in company of her father coin? to Mularo Mospital for her usual ante-natal check-up. She was eight months pregnant. Between Wandagevs and Mulago Round about along Kira Road, the Plaintiff was knocked by the defendant's said motor vehicle which came from behind her. She thereby sastained multiple injuries causing the less of her pregnancy. Hence this suit.

In paragraph 3 of her plaint, the Plaintiff alleged that the accident was caused by the negligence of the defendant's servant who drove the said M/V without due care and attention; failed to see the Plaintiff who was carefully working on her proper side of the road etc. The Plaintiff further alleged that as a result of the accident, she sustained multiple injuries:-

(a) An infury on the right ilic jossa that healed leaving a scar.

- (b) An injury on the left hemithorax that also healed leaving a scar. - (c) Diffuse tenderness on the lumbar spine. - (d) closed abdominal injuries with raptural ultrine membrane.

$-.12.$

- (e) closed head injury and - (f) severe pain, shock and suffering#

*2*

u The defendant in paragraph of his .j.'j. D; admits the occurrence of the accident but denied that it was caused by tAis mofcar vehicle or by him or his servant or Arent. Ho also denied that the Plaintiff suffered any injury c.j a result of the accident. He thus put, the Plaintiff t« strick proof of her claims.

t the berinninc of the hearing of the case, five issues • were agreed upon and were framed as under

- (1) wnether the accident accuired involving the defendants motor vehicle on the date an.-. place stated in the Plaint. - (?.) Whether the defendant or his agent or .servant was nerl? n\*en t; - (3) whether the defendant is liable to the plaintiff; - (4) whether the Plaintiff suffered the alleged or any injuries as a result of the said accident; - (5) what is the quantum of damages recoverable if any by the plaintiff from the defendant.

The plaintiff called three other v/x tnesses besides'herself. Tn the course of his examination ir Chief of PWh - Dr. Emmanuel wo.ro, counsel for the Plaintiff sought to tender in evidence the medical Report prepared by the doctor after examining the victim. This move was opposed by Mr. Mark Bwengye for- the defendant , on the ground that the Report was noc annexed to th£ plaint as required by ©7 r 1b of the CPR. I over ruled that objection and admitted the document in evidence. I reserved my reasons for that decision to be incorporated in my judgment. I now propose to rive my reasons;-

Hr Bwenrye objected as stated earlier to admissibility of the medical Report in evidence on the sole ground that it was n\*t annexed to the plaint at the time of filing the plaint as required by 07 r 14 of the CPR. Mr. Kajubi replied that paragraph 5 of the plaint talks of a medical ||oport. That the medical Repert was therefore anticipated.

07 rl4 (1) requires a plaintiff to produce in court at the time of filing the plaint and to deliver a copy thereof to be filed with the plaint a document upon which his claim is based.

07 r 14 (2) requires a plaintiff to enter on.the list or annexed to the plaint all documents he relies on as evid-ence in support of his claim.

•7 r 18 (1) prohibits the adrninissibility in evidence at the hearing those document which are required to be produced in court at the time ®f filing the plaint or to be annexed to the plaint ■j and which were not produced ar annexed without leave of the court.

The Plaintiff in this case did not sue on the medical Report in question. But she relies on the medical Report as evidence to support her claim. Authorities available show that ,H ho object of 07 rl4 and 18 of the CPR is to provide against false documents being set up after the institution of the suit. In those cases, therefore where there is no doubt of the existence of a document at the time of filing the suit, the court should as a reneral rule admit the document **i» evidence** though it was n»t produced with the plaint or entered in the list of documents annexed to-the plaint as required by R 14."

See MM DASANI Vs. AHMAD (1959) 3A 218 at 220; LUKYAKUZI vs. HOUSE & Tenant acE\*tCIDS LTD. (1983) HCB 74. The general rule is that where there is no doubt of the existence of a document at the time of filing the suit, it should be admitted in evidence even though it was not produced with the plaint entered in the list of document annexed to the plaint as required by **r** 14.

In this case, the evidence of Dr. More PV/4 shows that he re-examined the victim of the accident in October 1992, assessed her state of health and wrote the medical Report in question.

../4.

It is clear from the above evidence that the medical Report was in existence on 12/1/93 when this suit was filed. It was also referred to in Paragraph 5 of the plaint. For that reason I admitted it in evidence though it was not annexed as required by $r14(2)$ .

$\mu$

At the close of the case for the Plaintiff the case was adjourned to enable the defendant to assemble his witnesses for the opening of his case. On the adjourned date, I was hearing another part heard case so I could not commence hearing the defence ease. By consent the case was then adjourned to 19/7/94. This date was suggested by the defendant Mimself who said that the date was convenient to him. However, on this date, the defendant did not appear. He offered no explanation for his absence. His lawyer informed court from the bar that he had cont acted the defendant and advised him to appear but he did not. There being at good reason to justify adjourning the case I refused the request of Mr. Bwengye to adjourn the case. Upon that refusal Bwengye decided unilaterally to walk away. I then allowed counsel for the Plaintiff to address me on the case. He did, I shall now decide the issues on the evidence before me.

As regards issue No. 1 - whether the accident occurred involving the defendant's motor vehicle on the date and place as stated in the plaint, Mr. Kajubi contended that it was so. He relied on the evidence of the Plaintiff (PW1) of her father (PW2) and of the traffic police officer (PW3). Counsel urged me to believe these witnesses and to find that the accident did occur involving the defendant's motor vehicle at the date and place stated in the plaint.

According to $PW1$ , on 25/3/92 she was walking on the pavement on the left hand side of the road from Wandageya towards Mulango Roundabout along Kira Road. She was going to Milago Hospital for her routine ante-natal check-up. She was eight months pregnant.

She was with her father (PW2). On reaching opposite the Ministry of Putlic Service (now), she saw a Saleon car which was coming from the nearby nursary school

$6.156$

and was Trying to join the main Wandereya/Mulango Road. (Kira-Road) she stopped to give way to that vehicle to pass. The vehicle had stopped to see if it was clear to join the main road. It was at this time, that she was knocked by another motor vehicle which came from behind her. She did not see the Motor vehicle which knocked her. She fell on the stationary saloon car and soon became unconscious. When she remained her consciousness, she was already in Mulago Hospital. She had already been operated upon and her eight months pregnancy had already been removed. She realised that she was feeling backache. She remained hospitalised for 10 days.

The above evidence was corroborated by the evidence of Wilson Musoke (PW2) in all material particulars. According to Musoke, PW1 is his daughter. He was accompanying her to Mulango Hospital where she was soing for her usual ante-natal check-up. She was pregnant. She was walking in front of him. Both were walking on the pavement on the left hand side of the road from Wandageya towards Mulango Roundabout. Then he saw a Land Rover Registration No. UPP 247 which came from the Garage near the Nursary school on the left hand side of the Road. It came straight towards the pavement where people walk. As he continued to walk behind PW#, he suddenly heard the approach of a Metor vehicle and he quickly jumped off. Then the vehicle passed and knocked PW1 pushing her forward on Saloon Car which had come from the Nursary/PW1 fell down and collapsed. People eathered and a police man also came. He organised transport which took the Plaintiff to the Hospital. The witness went with her.

The traffic police Sat, James Rwamubona (PW3) who visited the scene of accident confirmed that the Plaintiff was knocked while on the pavement along Mulango Hill Road by motor vehicle No. UPP 247 which was being driven towards Mulango. That he visited the scene of accident on $23/3/92$ at 9.45 a.m.

$.16.$

$5$

The above evidence are clear. They show that accident did ocour on 23/3/92 along Wandereya Mulango Road. That road is called Kira Road. The Malprit motor vehicle is No. UPP 247. It knocked the Plaintiff who was on the pavement. According to PW2, the owner of the motor vehicle UPP 247 is Kafuroka the Defendant. There is no evidence to controvert the above. In those circumstances I agree with Mr. Kajobi and do find that the answer to issue No. 1 is in the affirmative.

$-6 -$

The next is issue No. 2. It is whether the defendant or his agent or servant was nogligent. On this issue, Mr. Kajubi contended that the servant of the defendant was negligent in that he drove with out due care and attention. Counsel relied on the evidence of PW1, PMR and PW3. According to PM1 she was knocked when

· she was on the pavement. That evidence was corroborated by the evidence of PW2 who testified that the motor vehicle No. UPP 247 knocked the Plaintiff who was on the pavement on the left hand side of the road from Wandereya to Mulango Round about. This version was supported by the traffic police Sgt. James Rwomusana PW3.

A driven cwes a duty of care to other road users. He is expected to drive his motor vehicle on the road with due care and attention with sufficient remards for other road users. It was stated in Grant vs. Sun shipping Co. Ltd. (1948) 2 ALLER 238 at 2477. Paras. D. thus,

."A prudent man will guard against the possible negligence of others when experience shows such negligence to be common".

Per lord Uthward:-

"It is a well established law that, the fact that a motor vehicle turns to the wrong side is rec by itself negligence, but if a motor vehicle on the wrong side of the road collides with a pedmstrian, the driver must explain how his position is consistent with the exercise of reasonable core on his part".

Richley vs. Faul (1965) 1 WLR 1454.

$\mathbf{1}$ In the instant case, the evidence established that the motor vehicle No. UPP 247 knocked the Plaintiff when she was on the pavement. The motor vehicle was being driven on the pavement. This is strange. Motor vehicles are not ordinarily driven on pavements. I think this calls for explanation from the driven of that motor vehicle No. UPP 247 how his position in driving on the pavement where pedestrians wolk is consistent with the exercise of his duty of reasonable care. Unfortunately, there is no such explanation. In the absence of such explanation, I have no alternative but to find that the driver of that motor vehicle No. UPP 247 did not exercise reasonable care to other road users when he drove his motor mehicle on the pavement and thereby knocked the plaintiff. He was therefore negligent. This answers issue No. 2 in the affirmative.

As regards issue No. 3 which is whether the defendant is liable to the Plaintiff, Mr. Kajubi contended that the defendant is liable to the plaintiff. He argued that there was no evidence that Taban Alfred the driver of motor vehicle No. UPP 247 was not acting as agent of the defendant at the material time.

$\cdot_{\mathcal{R}}\cdot$

$\overbrace{\phantom{a}}$

With respect to the learned counsel, I think that is a misdirection on the burden of proof. It attempts to shift the burden of proving the existence of the fact allead by the Plaintiff onto the defendant. This controvenes section 102 of the evidence Act. The section reads,

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on any particular person".

The Plaintiff alleged in paragraph 3 of his palaint that the driver of $m$ otor the said / vehicle was "servant or agent of the defendant". is therefore the duty of the plaintiff to prove that the driver of motor vehicle No. UPP 247 at the material time was the servant or agent of the defendant.

$.0/8.$

$-7 -$

There is no evidence not only of the tho identity of the driver of M/V No. UPP 247 at the material time, but also of his connection with the defendant. It was counsel for the Plaint-There iff who named the driver from the Bar as Alfred Tabam. was no evidence to support that claim. according to $PW2$ shows that he and the husband of the Plaintiff (PW1) tried to trace the particulars of the owners and drivers of the motor vehicles. They found the owner as somebody called Kafureka. The evidence did not mention who the driver was. PW2 states.

$-8$

"Then I and the husband of P"1 tried to get the particulars of those owners and drivers of the motor vehicles. We did. The owner was somebody called Kafwreka".

The above evidence did not name the driver of motor vehicle No. UPP 247 not did At connect the driver with the defendant. It is thus not clear whether the driver of the motor vehicle at the material time was the servant or agent of the defendant or a machanic driving the motor vehicle on a road test.

Even the evidence of the police traffic officer (PW3) who visited the scone is not of much help in this regard. It does not disclose the particulars of the drivers of the motor vehicles involved in the accident. In cross-examination the police officer said:-

$\mathcal{L}$

"The drivers of both motor vehicles made statements to the police." $\n *ln*\n$

The police Report was not tendered/court and the particulars of the drivers are not known.

It is trite law that a master is vicariously liable for the tort committed by his servant/Agent in the course of his employment. The scope of the "course of duty" is wide. "An act may be done in the course of a servant's employment so as to make his master liable even though it is done contrary to the orders of the master; and even if the servant was acting deliberately,

$. / 9.$

wantonly, nc-rlirently or even criminally, or fop l?is own benefits never-the-less i £ what^he did is merely i manner of carrying out what...he was employed to carry out, then his master is liable". (Muwonp-e v. A^ (19^7) 54^.17) t-

As we have seenjib^ve, the evidence of PW2 and PW3 did not identify^the u^iver of *\\/\j* mo. ypp 2^7, at the material time. It did n^t also c!'nnectwthe driver with, the defendant, v,In other words there \vas no evidence to show that the person who was driving that \\/\] t'o. Tjpp 2^7 at the material time was the servant/ Arent of the defendant <ind that he was driving in the course Of his duty. It is n°t enough to establish that the vehicle belongs to "ft" and then^infer th&t the driver thereof must at all timeg be the servant or are^t of ft. That the driver is. the servant of the defendant, must-be proved. This answers issue No. 3 in the negative.

On issue N°. 4 - which is whether the Plaintiff suffered the allured or any injury as a gesult of the accident, I say yea. There is over whelming evidence to show that theu.plaintiff suffered injuries as a result of the accident.. According to PV/1, on^23/3/92 she was ''knocked by a motor vehicle vthich^came from behind her. She fell down and bec^me^unconscious. She rerained her cQnscicusness when she was in Mulago Hospital.u On reraining her consciousness, she 'realised that she had^been operated upon andvthat her 8 months pregnancy had been removed. She realised also that she had backache. v

According to (pv/2) fco is the father of the plaintiff\* At the m-^terial^tiQie he wasuaccompanyinr the plaintiff who was going to Mularo hospital for her 4n^u^,l ant^-natal ch^ck-up. Between Wandereya and MulanpQ Round about along Kira^Road, the Plaintiff was knocked by a motor vghiclg which came from behind her. She fell down and beeanrbiunconsgious and was^rushed tn the ^ogpital. He accompanied her to the Hospital. According to Dr. Moro (P¥/U)

../10.

he is a surfect in Mulanco Hospital. On $23/3/92$ he was in charge of ward 2B which covered casaulty in New Mulago. He examined the plaintiff who was brought to the casculty following a traggic accident. She was unconscious and was bleeding through her vagina. He observed that she had two laceration wounds:- One on the chest and the other on the right lower abdomen. She was about 8 months pregant.

Upon examination, he found that the victim had severe tenderness in the abdomen and lower spine. Her uterus membrance had been raptured. He concluded that she had a closed abdominal injury with a threatened abortion. She also had brain concursion. Then she was prepared for emergency operation.

Upon operation, it was found that the victim had perforated small intestine. The intestine had burst and there was leakage. The uterus membrane was also completely reptured. Because of the bleeding from the uterus, it was decided that the factus be delivered surgically as there was a threatened abortion. Operation was performed to deliver the factus. Upon operation it was found that the factus was dead. It had injury on the head. This was the cause of its death. The injury on the mother's lower abdomen was the one which transferred to the baby and caused its head injury. $(PW3)$

According to , the traffic police officer who visited the scene of the accident, he found M/V UPP 247 off the road "In view of the serious condition of the victim, I could not take the particulars of the victim. I had to push the victim to hospital".

$:-$

of the above evidence, which I believe, I find that From. the plaintiff suffered the injuries stated in the Plaint as a result of the accident. This answers issue No. 4 in the affirmative.

This now loads me to the question of damages recoverable by the plaintiff from the defendant. As I have stated earlier in this judgment, a master is racariously liable for the tort

$1A$

course of his employment. In this case, there was no evidence to establish that the motor vehicle Mo. UPP pA? was at the time of the accident being driven by the servant or agent of the defendant. In the absence of that proof, the defendant can not be held liable merely because his motor vehicle was involved.

However, in case I am wrong (which I am sure I am not), I would award damages as under

]En paragraph 5 of the plaint, the plaintiff pleaded special Damages to the tune of shs. 34,50^/=. She prayed that, that amount be awarded to her as special damages.

The law regarding claim for special Damages is well established It is that such claim mufet be pleaded and then strictly proved.

In this case, no evidence was led to attempt to prove that plaintiff spent the amount claimed for police Accident Report and for medical Report. Mr. ^ajubi conceded that there was no specific evidence led to strictly prove the amount claimed as special damages. He however, armed that there is a fee to be paid for police accident report and for medical Report as a matter of law. He prayed that despite the absence of evidence in that regard, the amodnt claimed should be awarded.

I do not find the above argument satisfactory. It is a requirement of the law that special Damages must be strictly proved. Failure to adduce evidence to prove such a claim is failure to comply with the requirement of the law. In any case, there was even no police Accident Report produced in court. This failure was probably because such a Report was never obtained. The claim for special Damages would fail for want of proof.

As for the- general damages, the medical Report put the permanent disability at 40%. Yet the most serious injury was that on the lumbar spine. I am told this reduces her capability to lift heavy object, '^he rest of the injuries were more of cosmetic .plaintiff

surgical operations she under went, I would have awarded general damages cf Uganda shs. 1,000,0\$®/=. But as it is the suit is dismissed with cost.

,/J '' n. M. PKSLLO JUDGE. 7/9/94

Mr. Ka.iubi for Plaintiff Mr. Bwen^ye for Defendant Mr. Ekwanya court Interpreter. Judgment delivered in court.

. G. M. OKELLO JUDGE. 7/9/94