Ogwal v Marie Stopes & Another (Civil Suit 8 of 2010) [2023] UGHC 352 (21 February 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA

## **HOLDEN AT LIRA**

## CIVIL SUIT NO. OO8 OF 2010

OGWAL JIMMY :::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. MARIE STOPES

### **2. MEDI TOM :::::::::::::::::::::::::::::::::::**

## **BEFORE: HON. JUSTICE ALEX MACKAY AJIJI**

#### **JUDGMENT**

The Plaintiff instituted this suit against the Defendants jointly and severally to recover special and general damages for bodily injuries, pain and suffering occasioned on him as a result of a motor accident.

It is the Plaintiff contention that on the 11th of April, 2009 at about 10:30 am on the road to Teso Bar near Lira Nurses Training School, Police Barracks in Lira District he was knocked down while being carried on a motorcycle by Motor Vehicle Registration Number UAJ 919H, belonging to the 1st Defendant which was being driven negligently by the $2^{nd}$ Defendant in the course of his employment as a servant/ employee or agents of the $1^{st}$ Defendant.

The Plaintiff further contends that the accident was caused solely by the negligence of the 1st Defendant's employee agent and or servant, the 2nd Defendant during the ordinary course of his employment and the circumstances under which the accident took place constitute evidence of gross negligence. That as a result of the accident,

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he suffered bodily injuries such as a fracture to his right leg, loss of consciousness, urinating blood, pain and shock. That the 2nd Defendant having acted in the course of his employment with the 1st Defendant as an agent, employee or servant makes the 1st Defendant vicariously liable.

The 1st Defendant in its written statement of defense contended that the 2nd Defendant was not at the time of the alleged accident acting in the course of his employment and as such the Plaintiff's claim is by his own admission misconceived, frivolous and vexatious and the Defendant shall raise a preliminary point to the effect that the suit is bad in law.

The 1st Defendant further denied the Plaintiff's claim for vicarious liability and contended that the 2nd Defendant was on a frolic of his own and that the accident was not caused by the negligence of the 1st Defendant by itself but by the contributory negligence of the Plaintiff and or the rider of the Motorcycle Reg. No. **UDG 886L**

The 2nd Defendant did not file a defence. At the scheduling conference, the following facts were treated as admitted:-

On the 11th of April, 2009 there was an accident on the road to Teso Bar near Lira Nurses Training School and the Police Barracks. It involved vehicle No. UAJ 919 H owned by the 1st Defendant whereby, the Plaintiff was injured. Notice of intention to sue was served on the Defendant.

The following issues were agreed on and framed before court:-

- 1. Whether the Plaintiff has a cause of action against the Defendants - 2. Whether the 1st Defendant is vicariously liable? - 3. Whether the Plaintiff was contributorily negligent at the time of the accident? - 4. What remedies are available to the parties?

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At the close of their evidence, counsel for the Plaintiff and the Defendant, with leave of Court elected to proceed by written submissions, under a time frame that was set by consent before Court. Though this timelines were not adhered to by Counsel, the submissions were eventually filed together with the authorities relied on by Counsel. I have thoroughly, perused through them and considered the same in this judgment.

### **Resolution of the Issues**

The answer to any of the above issues will depend on the evidence adduced by a party having the legal burden to do so. See S.101 and 102 Evidence Act.

### **Issue One:**

### **Whether the Plaintiff has a cause of action against the Defendants**

Counsel for the Plaintiff relied on the cause of Auto Garage V. Matokov (No.3) (1971) E. A for his submission that all the three elements necessary for determining whether a cause of action exists are present in this case as disclosed in the Plaint and the attachments there on. He referred this Court to paragraphs 5, 5(ii) and 7 of the Plaint and Paragraphs 3, 4 and 5 the Reply to the written statement of defense.

Counsel for the Plaintiff further submitted that in addition to the pleadings disclosing a cause of action against the Defendants unchallenged evidence has been adduced by the Plaintiff which has proved negligence of the $2^{nd}$ Defendant who used the $1^{st}$ Defendant's car with the 1st Defendant's permission and caused injury to the Plaintiff.

Counsel for the 1st Defendant submitted that no cause of action is disclosed against the $1^{st}$ Defendant upon perusal of paragraphs 3 and 5(i) of the Plaint. That the first annexure to the plaint is an abstract of particulars of an accident involving a motor vehicle. The said document does not mention the 2nd Defendant as the person who

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was driving the motor vehicle at the time of the accident but rather a one Ogwal Dickens as the driver. That Ogwal Dickens was not described as an employee of the 1st Defendant and this de-links the employer- employee relationship between Ogwal Dickens and the 1st Defendant which is a crucial element in vicarious liability claims.

A cause of action is defined as every fact which is material to be proved to enable the Plaintiff succeed or every fact which if denied, the Plaintiff must prove in order to obtain a judgment. See the case of Cooke vs Gull LR 8E. P 116, Read-vs-Brown 22 OBD P.31.

The elements which a Plaintiff must prove to exist in order to determine whether a cause of action exists were laid down in the case of Auto Garage V. Matokov (No.3) (1971) E. A which have been reiterated in the Supreme Court decision of Tororo Cement Co. Ltd v Frokina International Limited SCCA No.2 of 2001 as follows:-

- 1. The plaint must show that the Plaintiff enjoyed a right - 2. That the right has been violated - 3. That the defendant is liable

The position of the law is that the question of whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone together with anything attached so as to form part of it. See the case of Kapeka Coffee Works Ltd v NPART CACA No. 3 of 2000.

In the present case, much as I agree with the submission by Counsel for the Respondent that the abstract of particulars of an accident involving a motot vehicle attached to the plaint clearly states that the driver of that motor vehicle was a one Ogwal Dickens and not Medi Tom as pleaded by the Plaintiff to be the employee, servant or agent of the 1st Defendant, that same document also spells out that the owner of the vehicle which was involved in the accident is the 1st Defendant.

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I have also perused through annexture J2 attached to the Plaint which is the Police Inspection Report in which the 1st Defendant is stated to be the owner of the motor vehicle. This fact has neither been rebutted or nor denied by the 1st Defendant.

According to paragraph 5 of the Plaint, the Plaintiff stated that;-

- That on the $11$ th day of April, 2009 at or about 10:30 am on the road to Teso i. Bar near Lira Nurses Training School, Police Barracks in Lira District at about 10:30 am, while being carried on a motorcycle in broad day light, Motor Vehicle Registration No. UAJ 919H, belonging to Marie Stopes knocked down the *Plaintiff leaving him with an open fracture of the right farmur and is presently completely disabled.* - ii. That the said accident was caused solely by the negligence of the $1st$ Defendant's employee agent and or/ servant, Medi Tom the $2^{nd}$ Defendant during the ordinary course of his employment as a servant or employee of the 1st Defendant.

The above paragraph of the Plaint clearly discloses the 1st Defendant as the owner of motor vehicle Reg. No. UAJ 919 which was involved in the accident, however it does not connect the driver of that motor vehicle, whom in this case has been described in abstract of particulars of an accident involving a motor vehicle, as Ogwal Dickens to the 1st Defendant as either its employee or servant for purpose of attributing vicarious liability to the 1st Defender under the principle of servantmaster relationship.

The 2nd Defendant Medi Tom whom the Plaintiff described in the Plaint as the driver, servant, agent and or employee of the 1st Defendant is not stated anywhere in the abstract of particulars of an accident involving a motor vehicle.

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The question that this Court now grapples with is whether the owner of a motor vehicle (Marie Stopes Uganda Limited) can be held liable for acts of personal injury arising from the negligent driving of another person not being his or her servant.

The position of the law is as stated in the case of **Gurrucharran v Harry Rambarran** - (1968) 11 WIR 443.

"...that the owner of a vehicle is liable for the negligence of the driver if the driver is his servant or, even though the driver was not the owner's servant, if the driver had the owner's authority, express or implied, to drive the car on the owner's behalf. An owner escapes liability if the driver is not his servant or agent at the time of the accident."

In the instant case, it has been contended by the $1^{st}$ Defendant that the $2^{nd}$ Defendant is not its driver or employee and therefore there is no cause of action against it nor should liability be attributed to it.

Though the above is the position of the law, I am persuaded that there are instances when an owner of a motor vehicle can be held liable for accidents involving his or her motor vehicle which was driven by a none servant. For example under the principle of delegated duty where the owner authorizes a third party to use the vehicle or where the negligence of the servant or employee can be imputed on the third party who was driving the vehicle at the time of the accident.

In the case of *Ilkiw v. Samuels & Others - [1963] 1 WLR 991*, a master was found liable for acts of a third party not being his employee.

In that case a lorry driver employed by a transport company to drive their lorry to a sugar warehouse, pick up a load of sugar and transport it to its destination drive to the sugar cane warehouse after loading the lorry a sugar cane stacker employed by the warehouse to load sugar cane asked offered to move the lorry for a short distance

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to make room for other lorries and the driver accepted his offer although he was under strict instructions from his employers not to allow anyone else to drive the lorry, he went so far as to tell him how to start the engine, but made no inquiry as to his competence to drive the lorry. In an action for damages arising from the sugar cane stacker failing to stop the lorry, the employer of the lorry driver denied liability the Court found the defendants liable and held as follows:-

"... I have no doubt that in allowing Samuels to do so" — that is, to drive the $lorry -$ "Waines was acting in flat disregard of those instructions. It is quite clear that this accident was caused by the negligent driving of Samuels; that in allowing him to drive without inquiry Waines was negligent, and that that negligence caused this accident... I have no hesitation in concluding in this case that in accepting Samuels' offer to drive this lorry a short distance, Waines was doing a job that he was authorized to do, albeit doing it in an unauthorized way, indeed in a way which was directly contrary to the instructions of his employer... I have no doubt that these defendants are liable for the negligence of Waines. This is the exact equivalent of a case where an employer tells an employee to drive from $A$ to $B$ , and the employee gets someone else to drive part of the way. Thus, the employee is doing the job that is authorized, albeit, as I have said, in an unauthorized way. In such Circumstances I think it is clear law that an employer is liable for the negligence of his employee. "[Emphasis mine]

The 1st Defendant relied on an offer of employment letter to the 2nd Defendant marked DE2 and an employment contract between the $2^{nd}$ Defendant and the $1^{st}$ Defendant marked DE3 to support the view that since the 2nd Defendant was not the driver of the motor vehicle there is no cause of action against the 1st Defendant.

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I have carefully examined the two documents referred to by the 1st Defendant above in which I have established that the 2nd Defendant was employed by the 1st Defendant as a Centre Manager and not as a driver as pleaded by the Plaintiff in his plaint this would have been sufficient to de-link any master –servant relationship flowing from the 1st Defendant to the driver of the motor vehicle Ogwal Dickens however, I am cognizant of the fact that though not an employee of the 1st Defendant, the said driver (Ogwal Dickens) was authorized to drive the 1st Defendant's vehicle by Medi Tom who is an employee of the 1st Defendant. To this end it can be deduced that he drove the motor vehicle not on his own accord or floric but under the request of the $2nd$ Defendant. In fact during his testimony before Court DW2: Medi Tom told Court as follows:-

"... I was in the vehicle when the accident happened. I was in the co driver's $\cdot$ seat and there was another person driving. I was a pick up white in colour belong to Marie Stopes. I was going to pick my sister... I hired Ogwal. I asked him if he had a permit."

I am fortified I arriving at this view by a letter dated 17th April, 2009 written by the 2nd Defendant and addressed to the 1st Defendant's Human Resource Manager, marked DE 5 in which he personally narrated the events of that fateful day in addition to admitting that went against company policy by taking the company car for his personal use.

As a result of the above, there was an attempt by the 1st Defendant's witness DW1: Namatovu Halima, the Human Resource Manager to persuade this Court that the 2nd Defendant was not entitled to a company vehicle, save for official duty only. She told Court, "...the $2^{nd}$ Defendant was not entitled to a vehicle for his personal emergencies but business but work may be entitled to a vehicle on official duty doing company work."

The above testimony notwithstanding, I find that the 2nd Defendants letter dated 17th April, 2009 very illustrative of the fact that he admits giving Ogwal Dickens permission to drive the company Vehicle to take his sick sister to hospital.

Therefore, in my considered view, the act of the 2nd Defendant, an employee of the 1st Defendant giving the driver of the motor vehicle Ogwal Dickens permission to drive the Vehicle albeit for 2nd Defendant personal emergencies does not absolve his master, 1st Defendant from responsibility when an accident happens.

This same position is enunciated in the case of **Ricketts v. Thomas Tilling Ltd** [1915] 1 K. B. 644.

This was a case where an omnibus driver wrongly allowed his conductor to drive the omnibus, and actually sat alongside the conductor when he did it. The conductor drove negligently, with the result that an accident happened. The employers were held liable, not on the ground of the conductor's negligence, but on the ground of the driver's negligence.

In his judgment **Buckley L. J** stated:-

"... It seems to me that the driver, who was authorised to drive, had the duty to prevent another person from driving, or, if he allowed another person to *drive, to see that he drove properly.* "

Similarly, **Pickford L. J** stated substantially to the same effect that:-

"... It seems to me that the fact that he allowed somebody else to drive does not divest him of the responsibility and duty he has towards his masters to see that the omnibus is carefully, and not negligently, driven."

Therefore, I find that a cause of action is disclosed against the 1st Defendant and is similarly vicariously liable for the acts of the 2nd Defendant.

### **Issue three:**

## Whether the Plaintiff was contributorily negligent at the time of the accident?

Counsel for the 1st Defendant submitted that the Plaintiff was guilty of contributory negligence by riding on a motor cycle without protective gear, failing to ensure that the motor cycle rider reduced speed and failing to adhere to traffic regulations.

In a claim for contributory negligence the Defendant must prove that the Plaintiff, through his or her own negligence, contributed to the accident.

In the case of Gaaga Enterprises Ltd v SBI International Holdings & 2 others HCCS No. 19 of 2005 Court held that:-

"... A person is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man, he might hurt himself and must take into account that others may be careless"

DW2: Medi Tom Lawrence, in n his evidence in chief told Court:-

"... the motor cycle was almost in the middle of the road coming from Teso bar and he vehicle was moving towards Teso bar. The driver of the motor vehicle should be responsible but given the circumstances, the motorcycle rider also did not do much as he was in the middle of the road. The driver of the pick-up is not responsible for this at all..."

According to the sketch map of the accident drawn on 11th April, 2009, the Motor vehicle is indicated to have been coming from the left hand side of the road while the motorcycle was coming from the right hand side of the road. The point of impact is estimated to have been approximately 2 meters from the right hand side of the road upon which the motor vehicle then skidded to the left hand side of the road.

According to the point of impact, the likely conclusion is that it is the motor vehicle that actually moved to the right hand side of the road and knocked the motorcycle. This view is corroborated by the testimony of **PW1: Ogwal Jimmy**, who told court

"... I saw the driver of the double cabin talking on phone as he drove the vehicle. He was also on high speed....the vehicle first hit the right hand side of the motor cycle then the engine part before it knocked me at the back, Okanye Thomas was putting on a helmet at the time. I was not wearing a *helmet at the time..."*

The evidence as adduced by the Plaintiff weighed against that adduced by the Defendant and so it and is not sufficient for this Court to hold that as a natural consequence of the Plaintiff's own negligence he suffered harm thereby finding him guilty of contributory negligence at the time of the accident. Therefore, issue number three is answered in the negative.

### **Issue four.**

# What remedies are available to the parties?

The Plaintiff in his Plaint prayed for an award of special damages of Ugx. 85,808,200/= (Eighty Five Million Eight Hundred Eight Thousand Two Hundred Shilllings Only), General damages and costs.

## **Special damages.**

As a general rule, special damages must not only be specifically pleaded but they must also be strictly proved. See the case of **Borham-Carter v. Hyde Park Hotel** [1948] 64 TLR.

In his plaint, the Plaintiff pleaded special damages under paragraph 7 and particularized as s follows:-

- i. Hire of motor vehicle from Lira to Kumi Hospital, Ugx 105, 000 - ii. *Cost of medical treatment Ugx. 1,133,200* - Feeding expenses at the Hospital for four people for 9 days Ugx 230,000 iii. - *Accident report and sketch plan Ugx 85,000* iv. - Transport costs from Kumi Hospital back to Lira Ugx 105,000 $\mathcal{V}.$ - Costs of accommodation of Ugx 12,500 for four people for 9 days vi. - Loss of income of Ugx. 300,000 per day from 11/04/2009 to 31/01/2010. vii.

The Plaintiff led evidence to show that he incurred expenses during the course of his treatment and produced various medical receipts to support his claims thereof. For example PE1, PE 2, PE3, PE4, PE5 and PE6 which are all on Court record.

PW1: Ogwal Jimmy also testified before Court that:-

"... I have spent money on my treatment. The first medical bill was shs. 1,133,000/-... had four people attending to me in the hospital. From Kumi Hospital, I hired a vehicle to bring me to my house. I hired a private vehicle (special hire) at shs. 105,000, I have since been using special hire vehicles. I paid for the Doctor's medical report at shs. 100,000/= I have a receipt it, it is among the seven receipts it is dated 27/8/2011, receipt number 17296. Also paid for the police accident report at shs.85,000. I have a receipt for the same..."

Therefore, I am persuaded that the Plaintiff is entitled to an award of special damages of Ugx. 1,970,700 (One Million Nine hundred Seventy Thousand, Seven Hundred Shillings) only which is supported by the documents adduced by the Plaintiff on the record.

I decline to award Ugx. 85,808,200/= (Eighty Five Million Eight Hundred Eight Thousand Two Hundred Shilllings Only) which was prayed for and pleaded by the Plaintiff because the basis of how he arrived at that amount or the documents to support the same was not availed to this Court.

### **General damages**

It is trite law that general damages are awarded at the discretion of Court. They are awarded to compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the Respondent.

PW1: Ogwal Jimmy, testified that:-

"...my pine trees I planted in the village were destroyed due to lack of care and maintenance. I lost over 400 seedlings. I was a footballer but now I cannot play anymore. I was playing for a team known as Divine Waters. I used to earn some allowance. I used over $300,000/$ = profit per day from my business. I used to sell sisal and nylon ropes, hoes and empty sacks in lira Town"

For a party to successfully claim general damages, the Court has held in the case of Musisi Edward vs. Babihuga Hilda [2007] HCB 84 that:-

"... to be eligible for general damages, the party should have suffered loss or inconvenience to justify the award of damage."

In the instant case, the Plaintiff has demonstrated that the Defendant's acts led to various inconveniences as stated above. I shall therefore use my discretion and award the Plaintiff general damages of Ugx. 40,000,000 (Forty Million shillings).

In arriving at the above amount, I have taken into consideration, the 2nd Defendants gesture of contributing money toward the medical treatment of the Plaintiff when the accident took place.

PW1. Ogwal Jimmy told this Court that he received Ugx 500,000 from the 2nd Defendant and another Ugx, 200,000 from the 2nd Defendant in the month of October, 2009.

#### $\overline{\textbf{Costs:}}$

Costs follow the event unless for good cause Court orders otherwise. I see no basis for denying the Plaintiff costs. As such, the costs of this suit are awarded to the Plaintiff.

Consequently, Judgment is accordingly entered for the Plaintiff in the following terms: -

- 1. The Plaintiff is awarded special damages of Ugx. 1,970,700 (One Million **Nine hundred Seventy Thousand, Seven Hundred Shillings)** Caromi - 2. The Plaintiff is awarded general damages of $Ugx.$ 20,000,000 (Twenty for the Million shillings). - 3. The Plaintiff is awarded Costs of the suit.

Dated and delivered at Lira this. 2.1. Day of Pelo .. 2023

**ALEX MACKAY AJIJI**

**JUDGE**

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