Namirimu and Another v ECTA (U) Limited (Civil Suit 81 of 1992) [1994] UGHC 47 (10 February 1994)

Full Case Text

## 'THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO.81 OF 1992

GERALDINE S. NAMIRIMU I ............................................ PLAINTIFFS JOSEPHINE NAMUKASA I

## VERSUS

ECTA (U) LIMITED DEFENDANT BEFORE: THE HONOURABLE MR. JUSTICE F. M. S. EGONDA-NTENDE J U D G M E- N T:

In this action the Plaintiffs, M/s Geraldine S. Namirimu and Josephine Namukasa, seek to recover special and general damages from the Defendant arising from an accident that o'c cured on or about the 17th July 1990 on Kampala/Jinja highway at Ntinda/Nakawa junction\* Both Plaintiffs were travelling in motor vehicle No. UXK 687 along Kampala - Jinja highway when it collided with the Defendants bus No. UXA 323 which was coming from the Ntinda road joining the Kampala - Jinja highway\* The plaintiffs allege that the accident occured solely due to the negligence of the Defendants driver one Opyeyuya Jalawelo who was driving the bus UXA, 323\* The defendant denies liability and alleges contributory negligence\*

At the commencement of hearing of this suit, .counsel, framed 5 agreed issues and these are;-

- (1) Whether the defendants driver was negligent; - (2) Whether there was any contributory negligence on the part of the driver of motor vehicle Reg. No. UXK 687 in which the plaintiffs were travelling; - (3) Whether the defendants driver was acting in the course of his employment with the defendant; - (A) Whether each of the plaintiffs sustained any injuries; - (5) Whether the plaintiffs are entitled to remedies claimed and if so, the quantum of damages\*

To prove their case, the plaintiffs,called 6.witnesses. PW1 was plaintiff No.1 Geraldine Namirimu. She testified that she is ^7 years old and was working with Grindlays Bank upto the date of the accident on 17/7/90- On that date she was travelling from Kampala to her home in Seeta in the evening after work. She was seated in the front seat of motor vehicle Reg. No. UXK 687, a minibus, that was travelling to Mukono together with Josephine Namukasa. At Nakawa, a bus from Ntinda, along Ntinda road, -suddenly entered the Kampala.- Jinja highway without stopping at the junction and collided w^th the vehicle she was travelling in<' There.was no other vehicle between the 2 vehicles involved in this accident4 ■■ The driver of UXK 687 could not have avoided the accident as motor vehicle Reg. No. UXA 32J suddenly entered the Kampala - Jinja main road without warning.\*— After the colliss.ion the witness lost consciousness and 2 or J days later woke up in Mulago Hospital. She suffered severe multiple injuries including a crush injury of the left limb and fractures on the right lower limb. I will revert to the subject of injuries later.

PW2 was Josephine Namukasa, 33 years old and a resident of Bweyogerere. She testified that on the 17th July 1990 she was travelling in a Taxi No. UXK 687 back to her home in Bweyogerere after work in the She was sitting on the front seat of the minibus. As motor vehicle Reg. No. UXK 687 was moving along the Kampala - Jinja main road at Nakawa a bus suddenly entered the main road from Ntinda road without stopping. Motor vehicle Reg. No. UXK 687 collided into- it •s \* / and the witness lost consciousness. She woke up 2 or so days later in Mulago Hospital in great pain.having sustained severe multiple injuries which I will revert to later.

PW3 was Sergeant chelogol (No.1190) a Police officer attached to the Central Traffic Office Kampala. Sgt. Chelogol recalled the accident which had occured on the 17/7/1990. The scene of the accident

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was visited by A. I. P. Damba. He did not personally visit the scene until a day later but recieved the file with instructions to investigate. He interviewed the victims at Nsambya and Mulago Hospitals. His report was to the effect that the driver of motor vehicle UXA 323 was to blame for the accident as he entered the main road without checking if it was safe to do so. He stated that the driver of UXA 323 was prosecuted for reckless driving and causing injuries through reckless driving and was fined shs.175,000/=. He stated that both plaintiffs were involved in this accident.

PW^ was Dr. George William Sekiwunga Kamya. He stated he was a fellow of the Royal College of Surgeons, Edinburgh and a Senior Consultant Surgeon, Mulago Hospital. The first plaintiff was a patient under his care on Ward 2A. She was initially admitted to Ward 3B - Emergency on the 17th July 1990 following a motor accident. I shall revert to the testimony of PW4 at a later stage in this Judgment.

PV/5 was Demetrius Damba a former Police Officer who visited the scene of the accident. At the material time he was an Assistant Inspector of police attached to the Central Traffic Office, Kampala. He had already served the Police force for about 23 years. He testified that he recieved a report and instructions by way of radio communication to attend a scene of a traffic accident at the junction of Jinja road and Ntinda road. This was around 6:30 p.m. He reached the scene of the accident and found 2 vehicles that had collided. The vehicles were UXK 687 a Toyota Minibus and UXA 323 a Tata bus belonging to the defendant. He joined the people assisting the removal of those trapped in the wreckage. He removed the 2 ladies seated in the front seat and organised transport to take them to Mulago Hospital. He drew a sketch plan and took measurements. He removed both vehicles by break-down and had them delivered at Central Police Station. The driver of UXA 323 was charged with 18 counts of various offences, convicted, and fined.

In his opinion, motor vehicle UXA 32? was driving from Ntinda and entered Jinja road without stopping thereby colliding with UXK 687 which was being driven towards Jinja from Kampala. He tendered in evidence the sketch plan and abstract of particulars of an accident involving a motor vehicle % The sketch plan shows the point of impact to be the second lane on Kampala - Jinja road for traffic moving straight ahead\* Motor vehicle Peg, No. UXA 32J is shown to have emerged from Ntinda road and entered Kampala - Jinja highway while UXK 687 is shown to have been proceeding in the direction of Jinja from Kampala along the highway in the second Jane on the left\*

PW6 was James Mbowa the driver of motor vehicle UXK 687 on the fateful day. He testified that he was driving motor vehicle UXK 687 from Kampala to Mukono loaded with passengers. Two ladies were seated infront. The time was after 6:00 p.m.- in the evening. When he was near Spear Motors at the junction of Ntinda road and Kampala - Jinja road, they had an accident.

Prior to the accident \$ the road was clear. All of a sudden a bus from Ntinda road just entered the road without stopping and collided with UXK 687\* He tried to brake but the bus was very fast. The collission took place in the middle of the road. He collided with the bus near its nearside driver's door. He became unconscious\*

The above is the substance of the Plaintiffs evidence on issues No.1 and No.2. The defendant did not offer any evidence at all inspite of being allowed an adjournment to call his witnesses. Learned counsel for the defendant, Mr. Mugisha offered to address this court instead on the basis of only the Plaintiffs evidence on record. He submitted that this court should notv have any regard to the evidence of PW1, PW2 and PV/6 as all these witnesses lost their consciousness and could not concierably recall what occur'ed at the time of the accident. He dis-

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missed the evidence of PWJ as hearsay. He asserted that the evidence of PW5 was circumstantial and thus needed corroboration. He referred this court to the case pf Blythe vs Birmingham Water Works Co. 18% 11 Ex. ch. 781 for the definition of negligence. He also referred to the case of Donogue vs Stevenson /~1932\_7 A. C. 562. He submitted that there were 3 cornerstones of negligence. Namely:-

- (1) a duty of care - (2) breach of that duty - (3) consquential loss or injury.

He submitted that the Plaintiffs had failed on the evidence on record to satisfy the above 3•considerations on a balance of probability. Relying on Hollington vs Hewton & Co. Ltd. /~19^3\_7 2 All. E. R.35 and Muwonge vs Kiyimba H. C. C. S. No.90^ of 1990? counsel submitted that this court should have no regard to the evidence showing that the defendants driver had been charged and convicted of traffic charges arising from the accident constituting the present cause of action.

At the sometime, counsel for the defendant submitted that the driver of motor vehicle Reg. No. UXK 687 contributed 80% to the accident in question for failing to use reasonable care to avoid colliding with the defendants bus. He referred to the case of Mukasa vs Mayanja /~197?7 H. C. B. 92. He attributed this alleged failure to overspeeding by the driver of motor vehicle Reg. No. UXK 68?< He dismissed PW6's statement that he was driving at about 40 Kms an .hour. He referred to the case of Sinzunuzi vs Gornba Services /"198O 7 H. C. B. 50 as authority for the proposition that violent skid marks the absence of an explanation suggest that the driver was driving too fast or that he applied brakes too suddenly. He submitted that the skid marks observed by PW5 show that PW'6 was driving at an extremely fast speed.

Counsel for the Plaintiffs submitted that the Plaintiffs had proved negligence on part of the defendants driver. 3 eye witnesses gave

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evidence describing vividly what had taken place leading to the accident before they became unconscious. The fact that they became unconscious did not wipe out of their memory what they had seen unless evidence to that effect was adduced. Their testimony was not shaken during cross examination. Counsel, referred to the evidence of PV/J and PW5 ^nd stated that there was no requirement in law for corroboration of the testimony of PW5» However, there was still the evidence of PV/1, PW2 and PW6 which could corroborate such evidence.

On the issue of contributory negligence, counsel submitted that PV/6 tried to apply brakes but the defendants bus entered the main road suddenly and it was not possible to avoid the accident. The evidence of the presence of skid marks supports PW6's statement that he tried to brake but it was too late.

I have given considerable attention to the evidence on record and the address of counsel on issue No.1 and No.2. The Plaintiff bears the burden of proof to establish that the defendants driver owed a duty of care to the Plaintiffs \* that he breached such duty and as a consqUencethereof the Plaintiffs were injured. The standard of proof necessary to discharge this burden is on a balance of probability. Was it more probable than not that the accident in question was the result of the defendants driver's negligence? The Plaintiffs were also under a duty in view of issue No..2 to offer proof that the driver of motor vehicle in which they, were travelling did not contribute to the accident • on a balance of probability, or if he did to what extent did he contribute. Equally, in vx0w of issue No.2, the defendant was bound to offer proof not only that the driver in which the Plaintiffs were travelling contributed to the accident in question b.ut that it was not liable or the extent it was liable for the accident. In arriving at this position, I refer to the Supreme Court decision in the case of Kibimba Rice Company Ltd. vs Umar Salim Civil Appeal No.? of 1988

(unreported). The Court considered a similar issue to the present issue No.2. Plat J. S. C. stated:-

> "But issue No.2 did not envisage the case of proof of the sole liability of the Company driver. It envisaged a case where there might be liability on either side. In that event, the Respondent / plaintiff / had of course to offer proof of his claim; but equally the appellant Company / defendant / had to show it was not liable at all, or to what lesser extent it was liable."

In the present case only the Plaintiffs adduced any evidence before me. As it were, the defendant also relies upon the evidence on record. It is only that evidence upon which to resalve the issues before this court. That the Plaintiffs were travelling at the material time in motor vehicle Reg. No. UXK 687 is conceded. It is obvious that an accident took place involving both vehicles at around Nakawa where the road from Ntinda joins the Kampala - Jinja highway. The defendants bus being driven by its driver entered the main Kampala - Jinja highway without stopping to observe whether it was safe to enter the highway. It has been stated by PW1, PW2 and PW6 that the defendants bus entered the highway suddenly and at a high speed. This evidence is not contradicted. The 3 eye witnesses were consistent and unshaken during cross examination. I accept their evidence on this point. The driver of the defendants bus was under an obligation to stop at the point where the road from Ntinda joins the Kampala - Jinja highway. Vehicles along the highway had, as it were, a right of way and the defendants bus should only have entered the highway when it was safe to do so. The defendants driver did not discharge this obligation. I find him therefore to have been negligent in the circumstances.

Did the driver of motor vehicle Reg. No. UXK 687 contribute to this accident? The Written Statement of Defence particularised 5 items of negligence on the part of the driver of Minibus UXK 687. They are

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"(a) Driving too fast at a speed excessive in the circumstances.

(b) Failing to keep any proper look 'ut for and or disregard of other road users coming into the main road or see the same in time, the defendant inclusive to avoid colliding with him or at all.

- (c) Failing to give any adequate warning of his approach. - (d) Failure to brake or apply, brakes properly and or in time or at all, slow down, swerve or in any other reasonable way to manage the above said motor vehicle so as to avoid the accident. - (e) Disregard and or failure to pay attention to road lines and other signs along the road."

These particulars of negligence are to be considered on the basis of the evidence available on record. There is no evidence on record to support particular (c) that the driver of UXK 687 disregarded or failed to pay attention to any road lines or other road signs. It was not established that the driver of UXK 687 was under a duty on the facts of this case to give a warning as required under particular (c). It has not been established that the driver of UXK $687$ was $/$ marks driving too fast as alleged by particular (a). The presence of skid / in this case appear to be more consistent with the idea of the driver of UXK 687 applying brakes suddenly rather than excessive speed in view of the defendants bus's sudden and fast entry into the highway along which motor vehicle UXK 687 was being driven. No evidence is available to show that in the circumstances of this case the driver of UXK 687 could have anticipated the defendants bus's sudden and fast entry into the highway. On the evidence before me, I find that the driver of UXK 687 could not have avoided the accident given the sudden and fast entry of the defendants bus from a minor road to a highway. Particulars (b) and (d) remain unproven. The driver of UXK 687 applied brakes and the presence of skid marks along his path is corroborative of his testimony. There is therefore no evidence to support the charge that the driver of motor vehicle UXK 687 contributed to the

$6.1119$

accident® On the evidence before me, I find the defendants driver to have solely been responsible for the accident in question.

I now come to issue No.3 which is whether the defendants driver was acting in the course of his employment. Counsel for the defendant submitted that the plaintiff has failed to prove that at the material time the driver of the defendants vehicle was acting in the course of his employment. In particular no evidence was adduced to show that the bus was loaded with passengers. Mo nexus had been established between the driver and the defendant to bring into play the doctrine of *'/Ti* vicarious liability. He referred to the case of Muwonge vs Attorney General E. A. 1?. Counsel for the plaintiff submitted that there was evidence to show that the bus UXA 32? belonged to the defendant and at the time of the accident, it was being driven by the defendants driver. After presentation of this evidence, counsel for the plaintiff argued, the burden of proving that the driver was not acting in the course of his employment shifted to the defendant. As the defendant had not adduced any evidence to the contrary it had failed to discharge this burden.

It is unfortunate that there is no direct evidence on this matter. The defendants driver was not called to give evidence. Neither was he made a party to this action by either party a fact that would have compelled him to appear before court. In cases of this nature, it may be advisable for the plaintiff to sue both the driver and the employer, the owner of the vehicle in question.

Ordinarily, the burden of proof lies upon the plaintiff or the person who wishes the court to believe in the existence of certain facts, but there are various exceptions. Section 10J of the Evidence Act provides:-

> ''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 any law that the proof of that fact shall lie on any particular person."

One of the exceptions is provided in Section 105 of the Evidence Act. It states:-

> "In civil proceedings when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

The principle and scope of an equivalent provision in the Indian Evidence Act is discussed in Sakar on Evidence 12th Edition. The equivalent provision in the Indian Evidence Act is Section 106 which $states:-$

> "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

The only difference between the 2 provisions is in our case, the addition of "in civil proceedings" at the commencement of the provision. Our section therefore specifically applies to civil proceedings. Sakar on Evidence at page 919 states:-

> "Principle and scope. This section like the preceding one, states an exception to the general rule laid down in S.101, that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue. S.106 is not intended to relieve any person of that duty or burden. It says that when a fact to be proved (whether affirmative or negative) is peculiarly within the knowledge of a party it is him to prove it. It embodies the rule stated in Taylor, S.379 thus...." The second exception $\int$ to the above named general rule 7 is thus, that where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties, the party must prove it, whether it be of an affirmative or a negative character, and even there be a presumption of law in his favour / Dickson vs Evans, 6 TR 60; R vs Turner, 5 M & Sel 206 7. Thus when an action for penalities was brought under an old Statute against a person for practising as an Apothecary without a certificate, the plaintiff would, independent of this exception, have been bound to prove the want of a certificate, for first, though the allegation was in a negative form, its proof was essential to the plaintiffs case; and next, the law might fairly presume that the defendant would not transgress the provision

> > $---/11$ of a Statute; still, as the defendant was peculiarly cognisant of the fact, whether or not he had obtained a certificate, and, if he had obtained one, could have no difficulty in producing it, the law, which is founded on general convenience, compelled him to do so - $\int$ Appolh Co. vs Bentley 1824 RY 8 M 159 7."

$11$

From the foregoing, it is clear that the Law shifts the burden of proof where the fact in issue is peculiarly in the knowledge of one party to a suit to such party to prove it. The rationale for this ris stated to be "general convenience." If a party to a suit is in such a position as to be one to supply the obvious answer to a matter because it is peculiarly or especially within his knowledge he is compelled to do so. I would think this is also intended to ensure that such a party does not otherwise defeat a worthwhile claim by keeping quiet and not calling any evidence at all whether to affirm or negative such fact in issue.

The question that now arises is whether the fact that a driver of a defendant is acting in the course of his employment or not is such fact as is "especially within the knowledge of" the defendant. Sakar on Evidence at page 920 states:-

> "Facts especially within the knowledge of any person. The knowledge must be in the nature of something peculiar / Lachminarain vs Chairman of RM, 1 PLJ 168, Poolin vs Watson & Co. Sup 7 "Especially" means facts that a pre-eminently or exceptionally within one's knowledge / Shambhu vs S 1956 SCR 199; $\Lambda$ 1956 SC 404 7 when negligence is charged against a public body although the burden is on the plaintiff, yet it does not preclude the burden of proving particular fact being on the defendant / Ramdas vs Sukkur, A 1940 s $254$ 7."

I think that whether a defendants driver acted in the course of his employment is a matter that is peculiarly in the knowledge of the defendant. The defendant must be the only person to know whether his servant was at the material time acting in the course of his employment or not. It is unlikely that the plaintiff would ordinarily be possessed of this knowledge. In a number of East African decisions by the High

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Court of Tanganyika and by Court of Appeal for Eastern Africa on Appeal from Tanganvika it has been held, in relation to pleadings and not burden of proof, that the fact of whether the defendants driver was acting in the course of his employment was a fact within the peculiar knowledge of the defendant which ought to be pleaded by the defendant. The failure by the plaintiff to state so on his pleadings was held not be fatal to the cause of action.

In the case of The Commissioner of Transport vs T. R. Gohil / 1959 7 E. A. 936, a Plaint alleged that the defendants motor vehicle was negligently driven by his servant or agent and damaged property belonging to the appellant. The defendant submitted that the Plaint disclosed no cause of action as it was not pleaded that the servant or agent was driving in course of his employment. The Magistrate ruled that the Plaint disclosed no cause of action. On appeal, it was held that it is sufficient to plead that the driver was the servant of the defendant and whether the servant was or was not driving in the course of his employment is a fact peculiarly within the knowledge of the defendant to be pleaded by him. The Judge in this case referred to the decision in Labhuben $w/o M. P.$ Shah & Another vs Jivraj Lavji, Tanganyika High Court Civil Case No. 130 of 1957 (unreported). At page 937, "the learned Judge said:-

> "Cause of action, to quote Mulla, means every fact which if traversed it would be necessary for the plaintiff to prove in order to support his right to judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved to entitle the plaintiff to a decree. In my view, it is sufficient to plead, as has been done here, that the driver was a servant of the defendant. $\quad \texttt{The} \quad$ presumption then arises that the defendant is responsible for any negligence on the part of his servant. If the servant was not driving in the course of his employment, this would absolve the defendant from liability, but this fact must surely be pleaded by the defendant as a ground of his defence. It would be a matter peculiarly within the knowledge of the defendant and one

> > $\frac{1}{2}$

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$\rightarrow$ $\leftarrow$ $\leftarrow$ $\leftarrow$

## that might be very difficult if not impossible for a plaintiff to establish\*

An appeal to the Court of Appeal of Eastern Africa was dismissed, the Appeal Court adopting the reasoning of the learned Judge." This decision was followed in Helena Yakobo vs Tanganyika Contractors /~E. A. 7 1963 261 a decision of the High Court of Tanganyika dealing with a similar matter in relation to pleadings.

I am inclined to follow the reasoning of Mahon, J.', in Labhuben w/o M. P. Shah and /mother vs Jivraj Lavji (supra) which' was affirmed on appeal by the Court of Appeal of Eastern Africa that whether a servant of the defendant is driving in the course of his employment is a matter peculiarly within the knowledge of the defendant and-that it might be very difficult if not impossible for a plaintiff' to establish# This is a fact that in my view falls in the exceptions provided by Section 105 of the Evidence Act to the general requirement that the burden of proof lies on the plaintiff. Once the plaintiff establishes that the vehicle in question belonging to the defendant was being driven by the defendants servant then whether that servant was acting in the course of his employment is a matter that is in the peculiar knowledge of the defendant\* The onus of proof is shifted to the defendant to explain whether the servant was acting in the course of his employment or not. In the' instant case, the defendant has offered no evidence at all. I would hold that the defendants driver was acting in the course of his employment\*

Notwithstanding the above, it is also possible to arrive at the same conclusion on the basis of a presumption in law cast upon the defendant. Where the plaintiff has established that it was the defendants vehicle that caused the accident and it was being driven by the defendants servants, an inference is drawn to the effect that the defendants servants must have been acting in the course of his

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employment, in absence of any evidence to the contrary. This presumption can be rebutted by the defendant by calling evidence. In the case of Bernard vs Sully (1931) 47 T. L. R. 557 the plaintiff claimed damages for alleged negligence of the defendants servant or agent in the driving of the defendants motor car. The defendant denied that the driver of the motor car was his servant or agent or was acting within the scope of a servant's or agent's authority. The trial Judge held that there was no evidence that the motor car was being driven by the defendants servant or agent and withdrew the case from the jury and entered judgment for the defendant. The plaintiff appealed. Reading the judgment on appeal, Scrutton, L. J., at page 557 stated:-

"..................................... motor car was driven by the owner or servant or agent of the owner, and therefore the fact of ownership was some evidence fit to go to the jury that at the material time the motor car was being driven by the owner of it or by his servant or agent. But it was evidence which was liable to be rebutted by proof of actual facts. The appeal must be allowed."

This case was cited with approval by the Court of Appeal for East Africa in the case of Karisa & Another vs Solanki & Another / 1969 7 E. A. 318. At page 322 Sir Charles Newbold P, stated:-

> "Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises it was driven by a person for whose negligence the owner is responsible (see Bernard vs Sully (1931). 47 T. L. R. 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by evidence that the car was lent to the driver by the owner, as the mere fact of lending does not itself dispel the possibility that it was still being driven for the joint benefit of the owner and driver....."

This matter was considered in the case of Hewitt - V - Bonvin & Another [1940] 1 K. B. 188. At page 194, du Parco L. J. stated:-

> "It is true that if a plaintiff proves that a vehicle was negligently driven and that the defendant was its owner, and the court is left without further information, it is legitimate to draw the inference that the negligent driver

> > $...$ /15

was either the owner himself, or some servant or agent of his; (Bernard vs Sully) (3); but in the present case all the facts were ascertained and the Judge was not left to draw an inference from incomplete data."

A somewhat similar question was considered in a Supreme Court of Uganda decision in the case of Uganda American Insurance Company Ltd. versus Phocas Ruganzu, Civil Appeal No.10 of 1992 (unreported). The brief facts of the case were that the Appellant was engaged in the Insurance business. In 1978 it employed one Lubega as its Marketing Manager. His job was solict business from clients and to meet with brokers and agents. Because of his position, he was provided with a car No. UXI 219. On 4th April 1987, a Saturday, this vehicle knocked the respondent as he was about to step off the pavement and cross Kampala road in Kampala town. It was being driven by Lubega, the Marketing Manager of the Appellant.

The respondent was seriously injured and brought an action against the appellant for special and general damages. At the trial, the Appellant (Defendant) adduced evidence to show that Lubega used the Appellants car for both official and private or personal purposes and that on the material date he was not on Appellants business. The respondent was successful in the trial court.

On appeal to the Supreme Court, the appeal was allowed with Seaton, J. S. C. dissenting. It would appear that Seaton J. S. C., accepted the argument that the presumption that Lubega was acting in the course of his employment had not sufficiently been rebutted by the appellants evidence. Platt J. S. C., to the contrary, found that the presumption such as arose had been rebutted by the appellants evidence who had shown that at the time the accident occured Lubega was not acting in the course of his employment. Platt, J. S. C., stated:-

> ".................................... on a Saturday afternoon when in the normal circumstances the work of an Insurance Company had ended.

> > $... / 16$

Nevertheless, it was submitted that as Mr. Lubega was driving a car belonging to the Insurance Company and could use it either for Company business or his own private business, it must be presumed that Mr. Lubega was driving on Company business and thus within the scope of his employment. If that were so then of course under the general doctrine of vicarious liability of the master / Insurance $/$ the Company would be liable as employer of Mr. Lubega. But this presumption may be rebutted by the employer so as to show that Mr. Lubega was not acting within the scope of his employment. So then what are the facts of this case?"

He then considered the facts of the case and came to the following grow, because it an a saburday without a said conclusion: I have a it the situation is equival.

"The situation boils down to this. Mr. Lubega drove a Company car either for the Company's business or for his own pleasure. It is said that the burden of proof passes from plaintiff to the defendant because a presumption has arisen that Mr. Lubega was driving on Company business. The presumption is a weak one in this case, because it was a Saturday afternoon and as I have said the situation is equivocal. I will allow that some presumption may have arisen but the Insurance Company has been able to show that no report was made by Mr. Lubega, that he was carrying out Company duties. The plaintiff has not sought to sue Mr. Lubega and his whereabouts are not known now to the defendant. In these circumstances there is nothing to show that the plaintiff acted in any way as if he were the part to the party acting in the course of his employment. If the plaintiff can only say that Mr. Lubega might have been acting in the course of his employment and if the Company has no reason to believe or was not told by Mr. Lubega that he was carrying out Company work, one can only say that it is a weak case all round and that the defendant has rebutted such presumption as the plaintiff has raised."

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$\alpha \pm 1 \qquad \cdots \qquad \alpha \pm 1 \qquad \beta$

Manyindo, D. C. J., held that the respondent had failed to prove on a balance of probability that Lubega, at the time of the accident, was driving the appellants car in the course of his employment. He accepted the appellants evidence that Lubega was not acting in the course of his employment.

In the main, I would read the above decision of the Supreme Court in Uganda American Insurance Company Ltd. vs Phocas Ruganzu (supra) to be consistent with Bernard vs Sully (supra); Hewit vs Bonvin & Another

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$16$

(supra); and Karisa & Another vs Solaki & Another (supra) in stating the law to be that if the plaintiff establishes ownership of the defendants vehicle and that at the material time it was being driven by the defendants servant a presumption arises that the servant was acting in the course of his employment and in the absence of evidence to the contrary the defendant could be held vicariously liable for the negligent acts of such servant.

This would appear to be consistent with the decision in Morgans versus Launchbury and Others / 1972 7 2 All E. R. 606 which was quoted with approval by Platt J. S. C. in Uganda American Insurance Company Ltd versus Phocas Ruganzu (supra). The first holding which was quoted states:-

> $"(1)$ In order to fix liability on the owner of a car for negligence of its driver, it was necessary to show either that the driver was the owner's servant or that at the material time, the driver was acting on the owners behalf as his agent. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner's request express or implied or on his performance of the task or duty thereby delegated him by the owner. The fact that the driver was using the car with the owners permission and that the purpose for which the car was being used was one in which the owner had an interest or concern, was not sufficient to establish vicarious liability."

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Two situations of liability are referred to above in which liability may be fixed on the owner of a vehicle. In the first instance the owner of a vehicle is vicariously liable because it is shown that his vehicle was being driven by his servant. In the second instance the driver of the vehicle must be shown to be an agent of the owner by establishing an agency relationship showing that the driver was using the car at the owner's express or implied permission on a duty or task deligated by the owner. At page 611 Viscount Dilhorne stated:-

> "...... In my view, the legal principle was correctly and accurately stated by Mackinnon $\cdots$

> > $...18$

L. J in Hewit vs Bonvin. He said: $-$ "If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage he must establish that in doing the act B acted as the agent or servant of C. If he says that he was C's agent, he must further show that C authorised the act. If he can establish that B was the servant of C the question of authority need not arise."

Their Lordships in Morgans vs Launchbury (supra) are all in agreement that the decision of the Court of Appeal in Bernard vs Sully (supra) and Hewit vs Bonvin (supra) represent a correct statement of the law with regard to vicarious liability of a master for the acts of his servant.

It is not in dispute that motor vehicle Reg. No. UXA 323 belongs to the defendant and at the material time was being driven by the defendants servant on a Tuesday at about 6:00 p.m. to 6:30 p.m. Counsel for the defendant submitted that the plaintiff had failed to adduce evidence showing that the defendants bus was carrying any or some passengers at the time of the accident. Therefore, the plaintiff had failed to establish that the defendants driver was acting in the course of his employment. Presumably the bus was returning to the defendants premises after dropping off the defendants employees after work but we otherwise have no evidence offered by the defendant as to what its servant was doing with its bus at the time. In the absence of any evidence to the contrary from the defendant, I would hold that the defendant's driver was acting in the course of his employment and the defendant is vicariously liable for the negligent acts of its servant the driver of UXA 323.

Turning to issue No.4; whether the plaintiffs were injured, the answer must be in the affirmative on the evidence before this court. Plaintiff No.1 testified that she woke 2 days after the accident in Mulago Hospital. She noticed that she had sustained severe and multiple

$\bullet\bullet\bullet\bullet\bullet/19$

wounds and cuts all over her body. Her left leg had been crushed. She had several fractures on her right leg. Her back was hurt. The crushed left leg was amputated just below the knee. She was hospitalised at Mulago Hospital from 17/7/90 to 12/10/90. She was admitted at Nsambya Hospital on 20/11/90 and discharged on 23/12/90. A further amputation of the left limb was carried out. The right leg gives her a lot of pain and she fears the fractures did not unite well. The stump is painful and she cannot comfortably use a pit latrine. The clavicle joint is still painful. The lower backside is still painful. She cannot walk easily. She has to use a crutch and an articial limb. She pre-maturely retired from her job as she was no longer able to work as a Cashier. She is no longer able to attend to her house as well as sewing and knitting. She can no longer.cultivate.

A Senior Consultant Surgeon, Dr. G. W. S. Kamya, was PW4. He produced 2 Medical Reports on plaintiff No.1 which were admitted in evidence as $\text{Exh. P.14}$ dated 2/10/91 and $\text{Exh. P.15}$ dated 6/10/92. He describes the injuries sustained by plaintiff No.2 in the following words:-

> "..................................... Hospital where she was found to be very shocked and anaemic with:-

- $(i)$ Multiple lacerated wounds all over the body the biggest being in the forehead and left elbow. - $(ii)$ Crush injury of the left foot. - Compound fracture left tibia and fibula $\scriptstyle\rm (iii)$ - $(iv)$ Compound fracture right tibia with dislocation of the proximal tibia fibula joint.

$(v)$ Dislocation of the right sterno claricular joint."

$.../20$

In the first Medical Report Exh. P.14 the witness concluded:-

"She was last seen at the hospital on $5/8/91$ with an arm support and wearing an artificial limb. she had big scars forehead and left elbow, a permanent unreduced dislocated right sterno clavicular

$19$

joint and a healed fracture right tibia with a puckered painful scar. She complains of a painful left phantom limb.

In summary this patient was admitted to Mulago Hospital after a road traffic accident in which she was critically injured. She sustained multiple injuries and developed gross sepsis for which she had to be amputated to save her life. She is now walking with difficulty using artificial limb. She will continue to be greatly handicapped for the rest of her life."

The witness again saw plaintiff No.1 on the 14/9/92 at Mulago Hospital.

The report states:-

$\cdots$ .................................... right leg and also in the amputated stump. She cannot walk for more than half a Kilometre because of pain. She has to use a toilet with a sit as she cannot squat.

## On examination

She had a permanent old unreduced dislocation of the right sterno-clavicular joint that could not allow the elevation of the right upper limb beyond 70°. She walks with difficulty using walking sticks.

The amputated stump was warm and tender and had a little wound developing on the scar. Because of infection, she was started on Antibiotics. The right lower limb had a puckered scar on the medial. aspect of the leg and had tenderness over the tibia.

Flexion at the knee was only possible down to 50°. The ankle joint was limited to a range of $10^{\circ}$ from $90^{\circ}$ .

In summary Geraldine Namirimu will continue to suffer as she cannot move easily due to the injuries sustained by the remaining right lower limb (old dislocation proximal tibia fibula joint, old fracture right tibia and injury to the right ankle joint). The old dislocated right sterno clavicule joint and use of an artificial limbon an infected amputated stump."

In his testimony, PW4 was of the opinion that the amputated stump will continue to be infected from time to time due to the use of the artificial limb and that the Plaintiff No.2 would have social problems as a result of these injuries. "It was difficult to put her disability in percentage terms but it is considerable disability."

Plaintiff No.2, Josephine Namukasa is 33 years old. Like Plaintiff No.1, Josephine Namukasa awoke in Mulago Hospital having lost consciousness at the time of the accident. She was in great pain. She had sustained severe multiple wounds and laceratious all over the body. Both lower limbs had suffered severe fractures. The left thumb was dislocated. The metatursals of the left foot were dislocated. The ankle joint of the same left foot was dislocated. She was on traction for 5% months with the resultant effect of stiffening of her knee joints to the extent that they now impede movement. Initially she could not walk but after intensive physiotherapy exercise she can walk with difficulty but the knees cannot bend. She cannot use public transport.

PW4 examined Plaintiff No.2 and issued 2 medical reports dated $2/10/91$ and $6/10/92$ admitted in evidence as Ex. P.16 and Exh. P.17 respectively. The injuries sustained were stated in Exh. P.16 to be:-

> "When she was examined at Mulago Hospital, she was found to be in shock with moderate pallor. She had:-

- $(1)$ Lacerated wound front-1 region. - $(2)$ Deep lacerated wound with multiple smaller ones left leg. - $(3)$ Crush injury of left foot. - $(4)$ Simple fracture of both left and right femur.

The report goes on to state the steps taken to manage the above injuries and sums up the results as under:-

> "......... the patient improved so much that she was discharged from hospital on 13/2/91 using crutches. She was last seen on $5/8/91$ walking with a limp using a stick. She had a 2 cm shortening of her right lower limb. The simple fracture of her right femur had healed but had developed stiffness of her right knee. The range of movement at the knee was from 170° to 160°. The fracture left femur had united well but flexion at the knee was limited to 70°.

As a result of the crushed injury, the left foot was 2 cm shorter than the normal right foot. Movements at the left ankle was limited from 60° to 80° and the left Achilles tendon was shortened.

When she was seen by the Orthopaedic Surgeons they recommended her to have an operation on the left foot namely Triple Arthrodosis and lengthening of the Tendo Achilles."

$21$

Plaintiff No.2 was seen by PW4 on 6/10/92 and as a result Exh. P.17

written. The following observations were made:-

"..................................... was short and inverted. Her left ankle was planter flexed and inverted with a range of movement from $80^{\circ}$ to $75^{\circ}$ in planter flexion. The left thigh bone (femur) had healed well but the left knee was stiff allowing the range of movement from 180° (straight leg) to 90 in flexion.

The right thigh bone (femur) had mal-united giving the whole lower limb a 2 cm shortening.

Range of movement at the right ankle joint was from 90° to 40° planter flexion. The right knee was stiff. The range of movement was from $180^{\circ}$ to $150^{\circ}$ in flexion.

In summary Josephine still walks with a limp due to a 2 cm shortening of her right lower limb. Both knees are still stiff, the right knee more stiff than the left knee. The range of movement has very much decreased on the left ankle giving her a painful ankle for which she has to see Orthopaedic Surgeons later this month. She will continue to suffer the inconvenience of using pit latrines."

In his testimony, PW4 stated that with a stiff ankle moving on uneven ground is a nuisance. The above injuries sustained by Plaintiff No.2 are likely to be permanent though less severe than those suffered by Plaintiff No.1

The last issue I have to deal with is whether the Plaintiffs are entitled to the remedies claimed and the quantum of damages.

The Plaintiffs have claimed the following relief:-

- "(a) Shs.2,230,000/= Special damages for 1st Plaintiff; - $(b)$ Shs.2,376,840/= Special damages for 2nd Plaintiff; - (c) General damages for each Plaintiff; - $(d)$ Interest at 25% P. A. from date of Judgment till payment in full.

$(e)$ Costs of the suit."

The particulars of the 1st Plaintiffs claim of Special damages are stated in para.5 (c) of the Plaint to be:-

$"C.$ $(i)$ Shs.428,600/= spent on disinfectants and surgical materials.

$...$ /23

- (iii) Shs.165,000/= spent on transport; - (iv) Shs.8,^00/= cost of Crutches;

*23*

- (v) Shs.17,000/= cost of wheel chairs; - (vi) Shs»5,000/= cost of artificial lirnb; - (vii) Shs.^02,200/= cost of medicines and drugs; - (viii) Shs.95,000/= Nsambya Hospital Bill; - (ix) Shs.^81,900/= cost of maintenance at Mulago and Nsambya Hospitals. TOTAL Shs.2,230,500/=

Counsel for the defendant submitted that he concedes expenses that were reciepted but prayed that the non—reciepted expenses be rejected as unproven.

Counsel for the Plaintiff submitted that Plaintiff No.1 had proved the Special damages in her testimony and they should be allowed.

As the reciepted expenses are not contested, I will immediately allow the following for which reciepts were provided

Shs.^28,600/= for disinfectants and surgioal materials; Shs.95,000/= Nsambya Hospital Bill; Shs.^02,200/= cost of medicines and drugs; Shs.5,000/= for artificial limb; Shs. 11,000/= cost of one wheel chair; Shs.7,500/= elbow crutches.

It is possible to prove special damages by oral testimony, where reciepts were either lost or are not ordinarily given. I accept that the reciepts for the local wheel chair at shs. 6,000/= and crutches at 900/= were lost and take the two items as proved. I allow as proved the maintenance expenses at Mulago and Nsambya Hospitals at shs.481,900/= as Plaintiff No.1 detailed every item purchased on this account during

/2^

cross examination. I allow a sum of Shs. 21,600/= for physiotherapy $a^+$ . Nsambya Hospital for which reciepts were produced. I find myself unable to allow item $5(c)(ii)$ in the sum of Shs.627,400/= for nhysiotherapy and transport in New Mulago, Old Mulago and Nsambya Hospitals as the item was just "thrown at the head of the court" without any attempt to particularise and by oral testimony show how it was incurred and how it adds up to the sum claimed.

T will allow the transport claim under $5(c)(iii)$ for Shs. 165,000/= as it has been proved by oral testimony. This was for transport to and from Mulago for check-up 4 times; on discharge from Mulago to home; from home to Nsambya on admission and on discharge from Nsambya to home at Seeta. I have accordingly allowed a total sum of shs. $1,624,700/$ = on account of Special damages to the 1st Plaintiff.

I have already set cut the personal injuries sustained by the 1st Plaintiff. By an estimation the injuries are severe and have substantially altered the Plaintiffs life. She was forced into premature retirement and thus lost all her future earnings. She is not able to do any housework. Neither is she able to cultivate or sew or knit as she used to do. Her social life has severely been curtailed. She is permanently inconvenienced while attending to calls of nature. She still feels severe pain in the back and the stump is likely to continue being infected time and again. She has virtually lost use of her limbs. She has to hire help to do her housework chores.

General damages are compesatory. In Livingstone vs Rawyards Coal Co. (1880) 5 App Case 25, Lord Blackburn at page 39 stated:-

> "Where any injury is to be compensated by damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so the loss which he has suffered as the natural result of wrong done to him."

Counsel for the Plaintiff referred to the case of Kulsum Jivani vs Senteza H. C. C. S. No.633/60 (quoted in Quantum of Damages for personal $\frac{1}{25}$

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injuries by Micheal Wilkinson Jrd Edition at page 79) in which the Plaintiff suffered a crushed leg which had to be amputated at mid-thigh. The other leg had a compound comminuted fracture of the tibia and fibula-Stiffening of the knee occured and artificial limb fitted. General damages awarded were shs.140,000/=.

Counsel submitted that a dollar or pound sterling guide be used to determine the equivalent of shs.140,000/= in i960 as it should be now. He submitted that this had been applied in Erisa Musama'li vs U. E. B. H. C. C. S. N0. MM8 of 1990 by brother Karokora J,. Unfortunately I was not able to see a copy of this decision. Counsel then proposed that an award of shs.25>000,000/= would be adequate in the circumstances. Counsel for the defendant proposed shs.500,000/=.

The injuries of the plaintiff in Kulsum Jivani vs Sentenza S. (supra) are in the main similar to the injuries sustained by the 1st Plaintiff. The facts available in the case referred to are however too brief and in the result can only be a rough guide. The value today of shs.140,000/= in i960 could well be over shs.20,000,000/=. Taking into account the pain and suffering; the disability and loss of amneties; the loss of future earnings and loss of earning capacity suffered by the Plaintiff; the future expenses the Plaintiff may incur, doing the best I can, I award the 1st Plaintiff the sum of shs.16,000,000/= as General damages. This sum if properly invested may go some way in solving the problems thrust in the Plaintiffs way by the negligent conduct of the defendants **driver.**

The second Plaintiff claimed the following special damages:— "D. Particulars of"special damages for 2nd Plaintiff

- **(i) .** shs.548^070/= spent on maintaining 2nd Plaintiff and her attendant in the Mulago Hospital from 17/7/1990 to 13/2/1991. - (ii) shs.482,220/= spent on buying medicines and drugs. - (iii) shs.409,500/= paid to the Physiotherapist.

(iv) 935,100/= spent on transport for physiotherapy.

2^ . -

(v) shs.1,950/= cost of crutches and walking stick. 'TOTAL Shs.2,376,840/=."

Counsel for the defendant conceded reciepted items as proved. I shall allow immediately the sum of shs.482,220/= spent on buying medicines and drugs for which reciepts have been put in evidence.

By oral testimony the cost of crutches and a walking stiok at shs.1,950/= has been proved\* She has claimed shs.935,100/= for transport to attend physiotherapy. She testified that she used to go by "Special Hire" for which no reciepts are ordinarily provided. She exhibited the attendance chits which show the respective dates on which she attended the physiotherapy clinic. This took place from 14/2/91 to 29/11/91 with a few dates in which she missed. I accept that she spent the sum of shs•935t100/= on transport as claimed.

Much as it is public knowledge that it is usual to pay some "fee" for a service in Government Hospitals it is maintained by Government that it offers free service and such "fees" as demanded fr.m patients is regarded as a bribe, or an inducement or reward not authorised in law. On public policy grounds I will disallow the sum of shs.409,500/ claimed as paid to the Government Physiotherapist.

I will also have to disallow the claim of shs.548,070/= for maintenance of the 2nd Plaintiff and her attendant on account of food, soap and day to day necessaries of life because oral testimony has not proved it. It was just "thrown at the head of the court." Evidence ought to have been called to show how the sum of shs.548,070/= was exactly arrived with sufficient particulars. The witness herself could have been examined on this account or her attendants would have been called to give evidence of this item. It is regretable that no attention was paid in this regard. I will therefore allow a total of shs•1,419,270/= on account of Special Damages.

...,./27

The injuries 'suffered by the 2nd Plaintiff have been set out above. Much as she retained use of her lower limbs, their performance has been greatly impaired by the accident. She will permanently suffer pain in the legs. Movement, is greatly impaired to. the extent that she has not been able to obtain a new job much as she is a qualified Stenographer and Book-Keeper. She cannot use public transport. She cannot attend to calls of nature with ease. She will need paid help to attend to her household chores. She is no longer able to dig and yet she is unable to obtain suitable other employment. Her social life was disrupted. She is no longer able to attend theatre and other places of social entertainment.

Counsel for the defendant proposed an award of shs.200,000/=. Counsel for the Plaintiffs referred to the case of Edward Kitamirike vs Mutugubya H. C. C. S. No.7^3/6^ (cited in Quantum of Damages for personal injuries by Micheal Wilkinson 3rd Edition pg«8l). The Plaintiff was a Legal Assistant in the office of The Attorney General to the Kabaka!s Government. He suffered a compound fracture of the left tibia and posterior dislocation of the right hip bone. He had minor' cuts and bruises and suffered severe pain. He was put under anaesthesia for his dislocated hip bone. His left leg was put in traction. He was in hospital for 11% weeks. The injuries healed completely. Left leg was > • shortened by about one inch. General Damages of shs.'50,000/= awarded.

- He also referred to the case of Margaret Namyalo vs Attorney General H. C. C. S. No.561 of 1966 (cited in Quantum of Damages for Personal Injuries by Micheal Wilkinson 3rd Ed. page 83). The Plaintiff was Secretary earning shs.600/= per month. -.. Injury to her legs and right leg was permanently turned inwards and stiffness resulted in both knees. Disability of more than 50% and loss of capacity to engage in sports. General Damages of shs.60,000/= awarded.

•e.../28

Counsel for the Plaintiff submitted that applying the dollar guide the value today of shs. 50,000/= in 1964 would be about shs. 8% million. He proposed an award for General Damages of shs. 10,000,000/=.

Taking into account the pain suffering, inconveniences, severe incapacity inflicted on the locomotion faculty of the Plaintiff; the future expenses the Plaintiff will have to incur, the loss of earning capacity and future earnings and doing the best I can in the circumstances, I do award the 2nd Plaintiff the sum of shs.9,000,000/= as General Damages.

Both Plaintiffs are awarded costs of this suit. The decretal amount shall bear interest at the rate of 25% per annum from the date of judgment till payment in full.

It is ordered accordingly.

And for fourly. F. M. S. EGONDA-NTENDE J U D G E $10/2/1994$

$10/2/1994$ $9:02$ a.m.

Present

Balikuddembe for the Plaintiffs Mugisha for the Defendant Namirimu - Plaintiff No.1 Namukasa - Plaintiff $No.2$ Mayanja - Court clerk

Judgment dated and delivered.

And Harry.

F. M. S. EGONDA-NTENDE

JUDGE $10/2/1994$