Ndawula and 4 Others v Kalondozi and Another (Civil Suit 497 of 1991) [1996] UGHC 59 (22 February 1996)

Full Case Text

## THE REFUBLIC OF UGALDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO 497 OF 1991

| $\epsilon$ | DEO MDAWULA LUKANGA NDAWULA NALONGO BBOSA ROBINA NALITEEBE JOSEPH | <pre>Q:::::::::::::::: PLAINTIFFS</pre> | | |------------|-------------------------------------------------------------------------------|-----------------------------------------|--| |------------|-------------------------------------------------------------------------------|-----------------------------------------|--|

## **VIRSUS**

SALIM LUMAGO KALONDOZI $\overline{1}$ . <pre>0::::::::::::: DEFENDANTS</pre> T. M. K. $2.$ BEFORE:- THE HONOURABLE MR. JUSTICE R. RAJASINGHAM. Q. C. $J U D G M E N T :=$

The plaintiffs claim is for damages for personal injury suffered in an accident involving the first defendant's vehicle UXJ 804 in which they were travelling and a lorry and trailer KV 1753 owned by the second defendant. The plaintiffs alleged that the drivers of both vehicles had been negligent.

The first defendant filed answer denying that he was the driver and not admitting he was the owner of vehicle UXJ 804 and also alleging that the accident was caused by the negligence of the driver of KV 1753 by leaving the vehicle so parked in the road and without adequate warning as to make it a danger to other users of this busy road between Masaka and Kampala.

The second defendant filed answer admitting its registered address but denying ownership of the vehicle KV 1753 and denying that the second defendant's driver was negligent in so parking the vehicle because he had permanently displayed warning of the presence of a stationary vehicle. They also denied that their vehicle had not been properly maintained.

$\mathcal{L}$ .

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. its presence in the road and their vehicle ran into it. He said they had been travelling at a speed which was not excessive. He was rendered unconscious and regained consciousness in Mulago Hospital some two and half months later. He said his whole body was in plaster. He had fractures on both arms, his right thigh, both shoulders and all his ribs and a dislocated left knee. He said he was in pain for about three and a half months and in hospital for seven months. He was an out patient for a further four months, visiting hospital every day. He said he could no longer use his right hand nor close his left hand; his right leg was shortened and painful to walk on; he still suffered thest pains and had difficulty bending. He can no longer write nor wash. He has to employ people to do work which he had been doing before the accident. He said he bought goods from Kenya and Tanzania which he sold in his shop but now had to hire three people at a total of Shs. $31,000=$ to do the selling. He said his income had been reduced by She. $400.000$ per month. He could no longer drive a vehicle. In cross-examination by the first defendant he said he had owned Land Rover before the accident. He said there had been no "pieces of trees", as he put it, in the road to warm of a broken down vehcile in the road, nor had there been any hazard such as a triangle in the road. In his opinion it had been the absence of such a warming that had caused their vehicle to run into the parked vehicle. He said he had no books of account but had paid Shs.1.3 million in tax last year. He said he had to check his books to know what he paid in 1990, 1991 and 1992. He said his shop which was situated at Plot 2A, Kampala Road was called Uganda Top Shop. He said he went to Kenya, Tanzania, Zaire and Zambia to buy goods before that accident and his partner Margeret Sempagama managed the shop in his absence. $... / 4$

had been in the second row from the front with the plaintiff Mdawula to his left. He said he saw the lorry a very short distance in front.

The next witness for the plaintiffs was Dr. Amons Lukanga Ndawula a senior Consultant arthopaedic surgeon. He spoke of attending the burial as a passenger in the first defendant's vehicle and of meeting with the accident around 8.00 p.m. As far as he could remember it had not rained that evening. He said he though they were going uphill. This means that the second defendant's position that his vehicle was beyond the curve in the road and on a climbing straight is partly corroborated. The doctor said that just before the impact he saw a brownish black thing ahead of them, right in from of them with no time to do anything. He sustained eight fractures, five at the pelvis with a closed injury to the obturator nerves both left and right, fracture of the left ulna, fracture of the left metracarpel and fracture of the main fingur of the left hand.

Fortunately for him, he is right handed. The arm and the fingur were plastered, but the pelvis fractures were not displaced so he was ordered bed rest. He was in hospital for about five weeks and received out patient treatment for three months. The pelvis and ulna fractures are healed but the fracture to the finger is malnuited and renders the grip weak. He said he has been assigned to administrative work because the malnuited left fingure put him at a slight disadvantage as a surgeon.

In cross-examination he said the thing he saw may have been in the middle of the road and that their vehicle did not swarve at all. He could not remember seeing anything like branches in the road, or even reflectors. He said it was very close when he saw it. He said he was seated four seats behing the driver. He said their vehicle was not $\cdots/6$

$5$

leg "at times". In cross-examination she spoke of a curve where the accident occurred with nothing to warm of the presence of the truck in the road. She said the vehicle was almost in the middle of the road. She said she sat in the third row. She said the lorry was near the fence but as it was getting dark she could not see it clearly. She said had been conversing and looked up upon hearing the others shout, by which true they were on the vehicle.

The next witness was the fifth plaintiff Muboba or Mbuba Joseph. He spoke of losing consciousness on impact and of suffering a cut on his forehead, a cut on his left knee and of the hip bone projecting through his skin. He spent four days in hospital and appears to have sought native treatment before returning to hospital to see the arthopaedic surgeon. He was operated on and signt two months in hospital, returning thereafter for physiotheraphy treatment. He still usos a walking stick. He spoke of a monthly income an a mechanic being reduced from Shs.80,000= to Shs.30,000=. He said it took a year and a half to be able to go back to work and that even now he cannot lift heavy objects. He said he still suffered pain in his left leg and coul" not walk long distances.

He said he saw the trailer in the road clearly before the accident and it had been fifteen metres ahead at that time. In cross-examination he said he saw no branches on the road nor did he see any reflectors on the road or on the truck. He said the truck was in the middle of the road because there were metro rails $\text{alon}_{\mathbb{G}}$ the side of the road. He said it was parked immediately after a bend in the road. He also saw lights of an oncoming car. He spoke of having changed employment and not having started paying tax. He said the truck could have been less than fifteen metres ahead. It could even have been five metres. He said that as it $\cdot \cdot$ /8

He examined Nalongo Bbosa aged 29 years and found she had cut wounds to the scalp and left forearm and a fracture of the right radius and ulna. The fracture has since healed with no permanent disability as has the scalp wound. He produced his report marked "EKN3".

He also treated Robinah Mamirembe aged 18 years. She had a cut wound on her right cheek and a first degree fracture of her right ankle joint. The fracture has healed with residual pain and the disfiguring scar has, since the doctor's report and through the use of a cream, disappeared. He estimated her disability with the scar at less than 5%. He tendered his report marked "EKN4"..

He also treated the first plaintiff Deogracias Ndawula aged 45 years, by far the most seriously wounded. He had a fracture of his right radius ulna, a segmental fracture of his left radius ulna, a simple fracture involving the lower third of his right femur and multiple fracture of his ribs. He was admitted in respiratory distress. He left radius ulna and his right femur were set in plaster after he was released from intensive care. In all he spent 12 weeks in hospital and then had out patient treatment. He had persistant pain in his left upper limb and his right knee with restricted movement of that knee. He had persistant pain in the chest. He walked with an unstable goit and a lump because of his knee. This plaintiff has as a result of a previous accident had excision and erthroplasty of his right elbow and now as a result of this accident had restriction of motion of 90% of his left elbow with restriction of motion of his left forearm and wrist too. He had a poor left hand grip. His left clavicle is malinuited and he has surgical scars on his left forearm and right thigh. He still has the surgical nails in his right femur and his left radius ulna. He had multiple fractures which have ../10

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been nothing to warn of the presence of that lorry in the road or he would have seen it and avoided the accident. He said the truck was on the road on his side. This is corroborated by all the witnesses and also by the Police sketch produced by the second defendant.

In cross-examination he said he had been travelling at 40 k.p.h. as his vehicle did not work very well. He said they left Masaka at about 5.30 p.m. He said there had been a slight drizzle and, when told that none of the other witnesses had said so, he said it was slight and he could have been the only person who saw it fall on his windscreen. He said he saw the truck when it was 15 or 20 feet ahead of him and that he braked immediately. He said he reduced speed because he was blinded by the oncoming vehicle. He said it was as the oncoming vehicle passed that he saw the truck. He insisted that he had swerved to his left and had hit the rails and said he then lost control. He insisted he could have seen tree branches in the road even in the face of the lights of the oncoming car.

The second defendant's driver of the truck EV 1753 one Safari Shanzibe gave evidence for the second defendant. He started by saying that when his vehicle broke down he parked it at the side of the road and he placed a warming (hazard) triangle in from and one behind and tree branches for a long distance from the lorry. He said this happened at about $6.00$ p.m. He said the road was straight and climbing at that point. He said he forced the vehicle to a point beyond the radis before parking it. He said the vehicle had no other defect other than dirt on the carburattor. He said he left the turnboy with the vehicle after placing the triangles and the tree branches and went to Interfreight, the agents of the second defendant for help. He did not return that night and heard. 12

$11 -$

placed the triangles in front and behind the vehicle. I do not believe either that he placed the triangles himself, as it was still day light, or that he instructed the turnboy and witnessed the placing of the branches in front of the truck.

I believe that with night approaching he may have told the turnboy to stay with the truck and himself hurried to Kampala to get help that same evening. Kampala was only 15 miles away. Even if he had himself placed the triangles ten metres the from the truck as he said he did, without the branches they would have been totally insufficient warming so close to the truck on a main highway. I have no hesitation. in concluding that the driver of KV 1753 was grossly negligent and too preoccupied with his desire to have his vehicle repaired that evening to worry about the danger he was creating.

$\cdot$

It behaves me to decide what part, if any, the first defondants actions contributed to the accident. Estimates of the speed at which the first defendant was driving vary between 40 k.p.h. by the first defendant himself to 90 k.p.h. by the plaintiff Deo Ndawula. I think the estimate made by Muboba Joseph a mechanic probably most accurate. He said they were travelling at about 60 k.p.h.

The second defendant was at great pains to establish, and it appears he was correct, that the accident occurred on a climbing stretch of fairly straight road. The minibus was fully loaded and on a climbing stretch of road could not have been moving very fast. This is in fact what Dr. Mawula said in relation to speed. Awareness of the danger in the varies from 15 to 20 feet to 50 to 60 feet according to the witnesses. There is no doubt that the evening was very short and possibly but not necessarily made even shorter by the lights of the oncoming car. I do not believe first defendant's little emballishments about braking and hitting the rails .. /1

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The plaintiff Malongo Bbosa suffered cut wounds to her scalp and forearm and a fractured right radius and ulna. She has no permanent disability. I award her a sum of Shs.1,000,000= for pain and suffering.

The plaintiff Robinah Namirembe suffered a cut wound on her cheek and a fracture of her right ankle joint. The cut wound has left no visible scar and the fracture causes her residual pai. Her permanent disability is estimated at 5%.

Therefore, taking into account the residual pain and the permanent disability, I award her a sum of Shs. 1,500,000= for pain and suffering.

The plaintiff Deogratius Ndawula suffered fractures of both arms and a femur and multiple fractures of his ribs. The fracture of his left arm has aggravated an already existing disability. His right knee is rigid or almost so being restricted to such an extent that he walks with an unstable gait and a limp. His left elbow too is 90% restricted after this second accident. His disability is estimated at 40%. He now has to employ people in his shop to do work he could himself do prior to the accident. His income too is reduced, perhaps as a consequence. He suffers persistant pain in his left elbow and his right knee. He spent twelve weeks in hospital and had to continue with out patient treatment. He still suffers chest pains. $\mathsf{I}$ estimate his damages, bearing in mind the decisions in Kiggundu and Sentongo Vs. UTC (Civil Appeal 7 of 1993), Badru Kakiika and another Vs. UCTU and UTC (HCCS 480 of 1990), Sulaiti Kityo Vs. Uganda Consolidated Ltd and another (HCCS 777 of 1989) at Shs.8,500,000= and award the said sum.

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$\cdot > \cdot$ ## REFUBLIC OF UGALDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO 497 OF 1991

| DEO NDAWULA LUKANGA NDAWULA NALONGO BBOSA ROBINA NALITIEBE JOSEPH | <pre>Q::::::::::::::::: PLAINTIFFS</pre> | | |-------------------------------------------------------------------------------|------------------------------------------|--| |-------------------------------------------------------------------------------|------------------------------------------|--|

## **VERSUS**

$1.$ SALIM LUMAGO KALONDOZI $\begin{array}{c}\n\bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \bullet \\ \$ $\text{T.-M.-K.-}$ $2.$ BEFORE:- THE HONOURABLE MR. JUSTICE R. RAJASINGHAM, Q. C. $JUDGMENT:-$

The second defendant filed answer admitting its registered address but denying ownership of the vehicle KV 1753 and denying that the second defendant's driver was negligent in so parking the vehicle because he had permanently displayed warming of the presence of a stationary vehicle. They also denied that their vehicle had not been properly maintained.

$\mathcal{L}^{\bullet} \cdot \cdot$

$\mathcal{L}^{\mathcal{L}}_{\mathcal{L}} = \mathcal{L}^{\mathcal{L}}_{\mathcal{L}} \mathcal{L}^{\mathcal{L}}_{\mathcal{L}}$

its presence in the road and their vehicle ran into it. He said they had been travelling at a speed which was not excessive. He was rendered unconscious and regained consciousness in Mulago Hospital some two and half months later. He said his whole body was in plaster. He had fractures on both arms, his right thigh, both shoulders and all his ribs and a dislocated left knee. He said he was in pain for about three and a half months and in hospital for seven months. He was on out patient for a further four months, visiting hospital every day. He said he could no longer use his right hand nor close his left hand; his right leg was shortened and painful to walk on; he still suffered chest pains and had difficulty bending. He can no longer write nor wash. He has to employ people to do work which he had been doing before the accident. He said he bought goods from Tenya and Tanzania which he sold in his shop but now had to hire three people at a total of $Shs.31,000=$ to do the selling. He said his income had been reduced by She. 400.000= per month. He could no longer drive a vehicle. In cross-examination by the first defendant he said he had owned Land Rover before the accident. He said there had been no "pieces of trees", as he put it, in the road to warn of a broken down vehcile in the road, nor had there been any hazard such as a triangle in the road. In his opinion it had been the absence of such a warming that had caused their vehicle to run into the parked vehicle. He said he had no books of account but had paid Shs. 1.3 million in tax last year. He said he had to check his books to know what he paid in 1990, 1991 and 1992. He said his shop which was situated at Plot 2A, Kampala Road was called Uganda Top Shop. He said he went to Kenya, Tanzania, Zaire and Zambia to buy goods before that accident and his partner Margeret Sempagama managed the shop in his absence. $.../4$

$\ddot{\cdot}$

had been in the second row from the front with the plaintiff Ndawula to his left. He said he saw the lorry a very short distance in front.

The next witness for the plaintiffs was Dr. Amons Iukanga Ndawula a senior Consultant arthopaedic surgeon. He spoke of attending the burial as a passenger in the first defendant's vehicle and of meeting with the accident around 8.00 p.m. As far as he could remember it had not rained that evening. He said he though they were going uphill. This means that the second defendant's position that his vehicle was beyond the curve in the road and on a climbing straight is partly corroborated. The doctor said that just before the impact he saw a brownish black thing ahead of them, right in from of them with no time to do anything. He sustained eight fractures, five at the pelvis with a closed injury to the obturator nerves both left and right, fracture of the left ulna, fracture of the left metracarpel and fracture of the main fingur of the left hand.

leg "at times". In cross-examination she spoke of a curve where the accident occurred with nothing to warn of the presence of the truck in the road. She said the vehicle was almost in the middle of the road. She said she sat in the third row. She said the lorry was near the fence but as it was getting dark she could not see it clearly. She said had been conversing and looked up upon hearing the others shout, by which the they were on the vehicle.

The next witness was the fifth plaintiff Muboba or Mbuba Joseph. He spoke of losing consciousness on impact and of suffering a cut on his forehead, a cut on his left knee and of the hip bone projecting through his skin. He spent four days in hospital and appears to have sought native treatment before returning to hospital to see the arthopaedic surgeon. He was operated on and signt two months in hospital, returning thereafter for physiotheraphy treatment. He still usos a walking stick. He spoke of a monthly income an a mechanic being reduced from Shs, 80,000= to Shs, 30,000=. He said it took a year and a half to be able to go back to work and that even now he cannot lift heavy objects. He said he still suffered pain in his left leg and coul" not walk long distances.

He said he saw the trailer in the road clearly before the accident and it had been fifteen metres ahead at that time. In cross-examination he said he saw no branches on the road nor did he see any reflectors on the road or on the truck. He said the truck was in the middle of the road because there were metro rails along the side of the road. He said it was parked immediately after a bend in the road. He also saw lights of an oncoming car. He spoke of having changed employment and not having started paying tax. He said the truck could have been less than fifteen metres ahead. It could even have been five metres. He said that as it $\cdot \cdot$ /8

He examined Malongo Bbosa aged 29 years and found she had cut wounds to the scalp and left forearm and a fracture of the right radius and ulna. The fracture has since healed with no permanent disability as has the scalp wound. He produced his report marked "EKN3".

He also treated Robinah Namirembe aged 18 years. She had a cut wound on her right cheek and a first degree fracture of her right ankle joint. The fracture has healed with residual pain and the disfiguring scar has, since the doctor's report and through the use of a cream, disappeared. He estimated her disability with the scar at less than 5%. He tendered his report marked "EKN4"..

He also treated the first plaintiff Deogracias Ndawula aged 45 years, by far the most seriously wounded. He had a fracture of his right radius ulna, a segmental fracture of his left radius ulna, a simple fracture involving the lower third of his right femur and multiple fracture of his ribs. He was admitted in respiratory distress. He left radius ulna and his right femur were set in plaster after he was released from intensive care. In all he spent 12 weeks in hospital and then had out patient treatment. He had persistant pain in his left upper limb and his right knee with restricted movement of that knee. He had persistant pain in the chest. He walked with an unstable goit and a lump because of his knee. This plaintiff has as a result of a previous accident had excision and erthroplasty of his right elbow and now as a result of this accident had restriction of motion of 90% of his left elbow with restriction of motion of his left forearm and wrist too. He had a poor left hand grip. His left clavicle is malimuited and he has surgical scars on his left forearm and right thigh. He still has the surgical nails in his right femur and his left radius ulna. He had multiple fractures which have ../10

$\overline{g}$

The second defendant's driver of the truck EV 1753 one Safari Shanzibe gave evidence for the second defendant. He started by saying that when his vehicle broke down he parked it at the side of the road and he placed a warming (hazard) triangle in from and one behind and tree branches for a long distance from the lorry. He said this happened at about $6.00$ p.m. He said the road was straight and climbing at that point. He said he forced the vehicle to a point beyond the rails before parking it. He said the vehicle had no other defect other than dirt on the carburattor. He said he left the turnboy with the vehicle after placing the triangles and the tree branches and went to Interfreight, the agents of the second defendant for help. He did not return that night and heard.../12

$\mathcal{M}_{\mathcal{C}}$

$\mathcal{L}_{\mathcal{A}}$

$-11$ .

I believe that with night approaching he may have told the turnboy to stay with the truck and himself hurried to Kampala to get help that same evening. Kampala was only 15 miles away. Even if he had himself placed the triangles ten metres the from the truck as he said he did, without the branches they would have been totally insufficient warning so close to the truck on a main highway. I have no hesitation. in concluding that the driver of KV 1753 was grossly negligent and too preoccupied with his desire to have his vehicle repaired that evening to worry about the danger he was creating.

It behaves me to decide what part, if any, the first defendants actions contributed to the accident. Estimates of the speed at which the first defendant was driving vary between 40 k.p.h. by the first defendant himself to 90 k.p.h. by the plaintiff Deo Ndawula. I think the estimate made by Ruboba Joseph a mechanic probably most accurate. He said they were travelling at about 60 k.p.h.

$\cdots \cdots$

the the send

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In conclusion I award the following damages as general damages against the second defendant -

- to Dr. Jukanga Ndawula, a sum of Shs. three million. $(1)$ - to Muboba Joseph a sum of Shs. three million five $(2)$ hundred thousand; - to Nalongo Bbosa, a sum of Shs. One million; $(3)$ - to Robinah Namirembe, a sum of Shs. One million $(4)$ five hundred thousand; and - to Deogracias Ndawula, a sum of Shs. Eight million $(5)$ five hundred thousand.

I award the costs of this action against the second defendant to the plaintiffs. I hold that the first defendant was not negligent.

the term of the

R. RAJASINGHAM JUDGE $\cdot$ 22/2/1996.

Read in court. Ir. latovu present. Mrs. Bitature present. lis. Namugga - Clerk.

R. RAJASINGHAM

JUDGE $22/2/1996.$