[1997] UGHC 11

## THE RAPUBLIC OF UG MODE

PAL HIGE COUNT OF $\mathbf{7N}$ $\mathsf{T} \mathsf{G} \wedge \mathsf{N} \mathsf{D} \wedge$ HOLDEN AT MBILT ---- UIVIL DU'T MC. 27/1995 -

$1.$ DR. JULIU **ALBETTE** $\mathbf{FLA} \times \mathbf{TP} \times \mathbf{CS}$ $\cdots\cdots$ $\overline{2}$ . IRENE VABWIRE Ŏ by her next Friend Dr. Julius Wambette ð

## versus

IMPRESA ING. FORTUNAT( FEDERICI ::::: DERUPAT) BEFORE: THE HON. MR. JUSTICE, AUGUSTUS KANIA

## **JUDGMENT**

The plaintiffs Dr. Julius ambette and Irene Vabwire suing by her next of fried Dr. Julius whette hereinafter in this judgment referred to as the first and second plaintiffs respectively smed the defendant Impressa Inc. Fortunato Federici in negligence for recovery of special and general damages and the costs of the suit. ੋhe Plaintiffs case was that on the 15th Jotober, 1995, the A second plaintiff wasknocked down along Cathedral Avenue in the Municipality Mbale by Motor vehicle Registration No. KAD 248 belonging to the defendant and which was being negligently driven by Ali Gamusi an employee of the defendant who was acting within the scope of his employment. As a result of the said knocking down the second plaintiff sustained a compound fracture of the left femur, a close head injury leading to a-phasia and suffering shock and pain. The first plaintiff who is the father of the second plaintiff incurred expenses in medical charges in treating the second plaintiff, transport charges and in obtaining a traffic accident report.

In its written statement of defence the defendant denied liability.

The suit was set down for hearing for $16/7/97$ and the following issues were framed and agreed upon by.

by counsel for both parties or determination.

- 1. whether the second- pl-ai-nti down due to the negligence of the defendant's servant. was Knocked - 2. 5 Whether the second plaintiff suffered any injuries. - 5. Whether the first plaintiff suffered any damages. - 4. 10 Whether the driver of the defendant was acting within the scope of his employment. - 5. Whether the defendant was vicariously liable. - 6. What remedies are available to the plaintiffs. - 7. What is the quantum of damages if any.

On the 16/7/97 two witnesses adduced evidence for the for the plaintiff and the case was adjourned for hearing to 51/7/97 when M/s Ssawa, Mutawe & Company Advocates filed a notice of change of Advocates to represent the defendant who had hitherto been represented by ?;'r. Natsomi & Wandera Advocates. When the case was called for further hearing Mr. Mutaawe who took over the representation of the defendant prayed for an adjournment on the grounds that he had just been instructed. The case was then adjourned to the 13/8/97 for further hearing. Mr. Mutaawe informed court then, that the defendant had instructed him. to admit liablity and that the only aspect of the ca.«e to be decided remained the quantum of damages. Judgment was accordingly entered against the defendant under 0rder11 r 6 of the Civl Procedure Rules and the suit was set down for the assessment of damages on 25/8/97 when learned counsel for both parties addressed court.

Mr. Dagira, learned Counsel for the plaintiffs, submitted that the principle of awarding damages is to put the plaintiffs in the same position as they would be in if the injury complained of had not taken place. He argued that with the injuries sustained by the second plaintiff with her disability assessed by Dr. Balyejusa as 100 % sh^e is likely ^o be dependent on other people all her life and would not enjoy the amenities of life

j

i

being deaf and dumb, dating in the 1970's to illustrate how gone about awarding damages ' r cases like Among these he cited Col Ndahendekire Mr. -'agira cited a series of cases the courts have the present v Transocean

( 1975 ) HOB 302, Veneensio Kyolibera v District Administration ( 1971 ) ¹ HER 273, Eastern Province Bus Company v G.»?. Bibi ( 1971 ) ¹ HIP 87 where the awards of general damages ranged between shs 4-5,000 = - 150,000 = . West h-engo

10 15 20 , 25 Counsel also made reference to the relatively recent case of Barnabas Ntimba vs UEB O. A. S. C. NG 16/92 unreported where, the plaintiff was rendered by the injuries sustained '.totally dependent. His permanent disability was assessed at 80 *%* and the Supreme court upgrated the High court award of 9.000.000 = to 18.000.000 = He also cited Austin I/pe'rabusa vs Paul Etot HCCS No. 52/1995 unreported where the permanent disability was assessed at 25 % but Katutsi J. stated that had he found, the defendant to have been liable, he would have awarded the plaintiff \*hs 25,000,000 = in general damages. Mr. Dagira argued that because the 2nd plaintiff is in her formative years, and may fail to learn a skill given her disability she should be awarded shs 80,000.00 = for pain and loss of amenities. He also prayed that besides the special damages, of ft 598.000 = already incurred by the time of filing the suit the plaintiffs ^should also be paid other expenses subsequently (; • incurred bringing the total spent by way of special damages to ste 715,000 «=

He attached the Medical Mr. Mutaawe, learned counsel for the defendant, submitted that though the defendant had admitted liability, the plaintiffs could only be compensated to the extent of what has been proved, report of PW2 which was tendered in evidence as P2 for having amalgamated the report of the ENT specialist and addressing it to counsel for the plaintiffs. He contended that this showed the reports were made for purposes of the suit only and that the admission of P2 was contrary to Order 7 X\*r 14- and 18 which forbid documents which are not

**-Sr ³**

**5**

' 30

**35 \***

5 10 15 ENT specialist, of Kahwa & Anor. annexed or referred to the plaint being admitted in evidence. He submitted that in any case admission of x a medical report by consent does not amount^ \_to\_the admission of its contents. He cited Attorney General vs Baranga & anol? ( 1976 ) HCB in support of the above argument. Mr. Mutaawe also argued that P2 contains hearsay from the He further contended that on the authority vs UTG ( 1978 ) HCB 520 the oral evidence of a doctor should as a matter of practice be taken before the findings in his opinion are admitted and that because the ENT specialist Dr. Turitwenka\*0 findings ID 2 were not supported by oral evidence they were not admissible. He pointed out this is because the evidence of a person not called as a witness is hearsay and inadmissible.as was stated in Apdum Lumodoi - Omodoi vs Attorney General 8: anor HCCS 776/90 Mr. Mutaawe also argued that for exhibit P2 to be properly before court it ought to have been accompanied by the surrounding facts like X - ray pictures and medical notes.

H- **-32-**

20, 25 50 His ^Dunsel contended Mr. Mutaawe submitted that he believed the injuries sustained by the 2nd plaintiff consisted of a compound fracture of the femur, closed head injury, shock, pain and suffering. He submitted that the instant case should not be equated with the case of Barnabas Ntimba vs UEB because/the plaintiff in the latter was a bread winner of the family and his injuries were more extensive. He thought the nearest and closest case suiting the instant case was that of Michael Muledu suing through next friend. vs Attorney General ( 1979 ) HCB 150 where the plaintiff suffered severe hpad injury, bleeding from both ears and hemiplegia and was eventually impaired of his right hearing, half paralysed and completely blind, permanent disability was assessed at 100 % and he was awarded is 550,000 =. Mr. Mutaawe also ma^e reference to Mutyaba Leonard Sembatya vs Attorney General SCCfl No.21/9^ the permanent" disability of the plaintiff was assessed at • 65 % and he was awarded is 10.000.000 =z that considering the injuries of the 2nd plaintiff as proved, she should be given an award of is 5-000.000 =. and in any event the sum of is 10,000.000 = should hot be exceeded. As for the special damages counsel invited me

■1

**33-**

to award the special damages which had been strictly proved by the plaintiffs on the authority of Kibimba Rice Company HCCS-''To. 7/88 ( unreported.

By the admission of liability by the defendant and by.tthe representation of Mr. Mutaawe the only, issue left for determination by the court is the quantum of damages. General damages are at the discretion o° the court and are intended to put the plaintiff in as good a position in monetary terms as he would have been had the injury complained of not taken place. ( see Phillips vs Ward (1956 ) ¹

All ER 874. This means the court must first determine the injury and use its discretion to decide what in monetary terms would put the plaintiff in as gcoc a po ition as he would have been had the injury not occurred.

15 20 25 His findings 30 He assessed PW2 testified In the instant case evidence of the injuries sustained by the 2nd plaintiff was adduced by p?('¹ Dr. Julius Wambette, though a doctor by profession^was not testifying as an expert. He testified that the 2nd plaintiff sustained a fracture in the left leg, bruises on various parts of her body and she was unconcious for three days. On completion of her treatment, the 2nd plaintiff became dumb and deaf. PPW2 Dr. Balyejusa a specialist surgeon who initially treated the 2nd plaintiff examined her and complied a exhibit P2 by consent. medical report dated 25/11/96 which was tendered as The gist of his evidence and his report wap, that he received the 2nd plaintiff as a patient when she was funconcious due to head injuries. were that she had head injuries and a fracture of the left thigh bone' and that she is both dumb and deaf. the degree of permanent disability at 70 % . that he took into account his own obeservations and the report of the audiologist Dr. Turitwenka dated 22/11/96 which was put in for identification and marked Tp 2.

Mr. Mutaawe attacked the evidentiary value of the above documents on several grounds. He argued that p2 ought not to have been admitted and id 2 put in for identification because since they were neither annexed to the plaint , nor-entered in a list annexed to the plaint. He argued that admitting P2 in evidence and putting ID 2 for identification was contrary to'^bhe provisions of Order ⁷ hule^lS^—^H^e cited $\mathsf{G}$

$-34-$

$1C$

Eriab Lukyamuzi vs House & Tenant Agencies Ltd (1983) HCB 74 in support of this argument. I agree with Mr. Mutaawe that the whole purpose and object of Order 7 rule 18 of the C. P. R. is to guard against parties to a suit setting up documents and manufacturing evidence at the time the suit was filed. Eriab Lukyamuzi vs House & Tenant Agencies Ltd ( Supra ) goes further and permits documents that do not comply to Urder 7 rule 18 CPR to be admitted in evidence freely provided they were in existence at the time of filing the suit.

The case of P2 and ID 2 is different. They were not in existence when the instant suit was filed on 30/11/1995 as they were compiled on the 25/11/1996 and on 22/11/1996 respectively, they relate to the condition of the 2nd plaintiff when she was examined after the course of treatment she underwent had been compelted. Mr. Natsomi who represented the defindant before Mr. Mutaawe came on the scene did not object to them. This to me signified that he did not consider them as false documents being set up in evidence, but rather as a reflection of the state of health of the 2nd plaintiff when the medical examinations were conducted. As I watched PW2 testify I did not get the impression that he was helping to set up P1 and I have no reason to believe that ID 2 was a false document wither. Inspite of the provisions of Urder 7 rule 18 of the C. P. R. and the effect of Eriab Lukyamizi vs House & Tenants Agencies LTd ( Supra ), I am of the view that the court may admit documents if it is convinced that it depicts a true state of facts even if it is made after the suit has been filed. In fact in cases like this when injuries take long to heal and there are possibilities that complications could occur in the condition of the plaintiff it is desirable that his.her condition be assessed after the completion of the course of treatment. That seems to have been exactly the situation here.

Mr. Mutaawe submitted that the admission of the documents by Mr. Natsomi should not be taken to be binding on the defendant. Where an Advocate makes an admission of fact or of evidence such admission is no doubt beinding bind on his client. It is only when such an admission is oA ^a matter of law, and it proves to'be incorrect, that his client is not bound by such admission. See Pushpa vs Fleet Transport Company'"(I960 ) E^A 1025. Here iVr. Natsomi was admitting the evidence of p;;? and the report made^^by Dr. Turitwenka which are matters of fact thus binding .the defendant. **A-**

**5**

i;

it It was also argued for the defendant that even if the medical report of PW2 is held to be admissible, has no evidential value as it is not a.ocompanied by clinical and other materials as stated in the case cf Talituuka ys Nakendo (1979) HOB 275. No doubt it is desirable that expert evidence should give a full background as to how the expert witness arrived at his conclusions. That this has not been done does not necessarily vitiate the congency of such evidence if it is given convincingly^ And this according to me is exactly what ^p',?2 did. "'hat is moBr. the views expresssed in Talituuka vs Nakendo ( Supra ^j were expressed obiter.

given tc was t the **55** virtually by the said Doctor. the matter of- aattago&y Tnis vi admitted f Mr. Mutaawe submitted, that no importance should, be ID 2 because a doctor should always give oral evidence before his report can be admitted as was held in Kahwa & anor Vs ' UTC (1978) HOB ^2. Be al -c pointed vs unreported the evidence of a person not called as a witness is hearsay and inadmissible. This is indeed the statement of the law. This is so because the classification of an injury is is a matter of fact to which the doctor has to testify. See Uganda vs Isumarisi Qkello ( 199^ ) HOB 85. In the instant case it is not^all the fault of the plaintiff Dr. Turitwenka who compiled D2 did not testify. ID 2 admitted on the court record for purposes of having it exhibited Before the plaintiffs could do only issu meant he a&mittbdthe plaintiffs' pleadings including the injuries sustained by 2nd plaintiff save for the quantum of damages. In this regard it is surprising that he submitted that the damages awarded should only relate - &'HCBd2. out that on the authority of Apdum Lumodoi - Omodoi Attorney General *%* anor HCCS Wo. 776/90

!

to the compound fracture of the left femur, closed head injury, shock, pain and suffering the 2nd plaintiff underwent. From the pleadings and the evidence of PW1, PW2 and ID $2$ I find that the 2nd pla ntiff having been rendered dumb and deaf is a direct result of the motor traffic accident which occured on 25/10/95 along Cathedral Avenue, in Mbale Municipality involving Motor Vehicle Registration No KAD 248P for which the defendant admitted liability.

Though both the counsel in addressing court seemed to suggest that the disability of the 2nd plaintiff was assessed at 100 % I don't think this is borne out by the evidence adduced. It is now known that the degree of disability of the plaintiff for pursposes of awarding damages is the permanent degree of disability as it affects the general life of a plaintiff. Dr. Turitwenka assessed the complete loss of the faculties of speech and hearing at 100 % of loss of these capacities. FM2 in P1 took the cummulative degree of disability of the 2nd plaintiff considering that loss of the faculties of speech and hearing was 100 %, her age and her circumastances generally and came up with a degree of permanent disability of 70 %. In arriving at this degree of disability PW2 stated that he was helped by the fact that he observed the 2nd plaintiff, considered ID 2 and realised she could not Though Mr. Mutaawe submitted that the two reports talk. should be given seriou consideration because they were compiled experts who are normally after their fees and therefore suspicious. I am satisfied from observing PW2 give evidence that he put plenty of professionalism in his report and the to mothing to indicate his said report was motivated by the fees that might have been paid for the report. Nor is there evidence of s me suspicious dealings between PW2, the author of ID 2 and the Advocate The case of Lord Arbinger vs Ashton for the plaintiffs. (1873) L. R. Equity 358 cited by Mr. Nutaawe and which tends to cast doubt, on every report by an expert is therefore in applicable to this case. All in all I find that PW2 correctly assessed the permanent disability of the 2nd plaintiff at 70 %. What then is the quantum

$\overline{1}$

$\overline{5}$

$-3L-$

of damage the 2nd plaintiff is entitled clace her $\lim_{\lambda \to 0}$ as a good position in monetary as a as she would have been had she not sustained the injuries at the names of the defendant or its agent and servant.

In assessing damages in cases of this nature, besides taking into account the degree of injuries suffered by the plaintiff and his/her disability assessed, the courts are guided by awards $\mathfrak{a}$ case of a similar mature.

Mr. Dagira in guiding court as to what the possible award in this case could be referred me to a chain of 10 authorities. He cited Col. Ndahendekire vs Transocean (1975) HCB 302 where the plaintiff sustained multiple injuries including a fracture of the head, a fracture of the left femur and a posterior dislocation of the left hip 15 and his permanent disability was assessed at 50 % and he was awarded $\frac{1}{2}$ 150,000 = He again cited Vencensio Kyalibera vs West Mengo District Administration (1971) 1 ULR 273 where the plaintiff aged 7 years was awarded $\frac{1}{2}$ 45,000 = for losing an eye after having been hospitalised for one In Eastern Province Bus Company vs G. W. Bibi year. (1971) 1 ULR 87 the plaintiff who was 10 years and sustained brain damage with constant headaches was awarded $\frac{1}{30}$ 160,000 = and this was reduced to $\frac{1}{30}$ 130,000 = on appeal. In Barnabas Ntimba vs UEB CASC 16/92 (unreported) the plaintiff who had multiple burns, amputated and whose 25 permanent difability was out at 80 % was awarded by 18,000.000= on appeal. He finally referred court to Austin perabusa vs Paul Etot T/a Risinf Star Transporters HCCS No. 52/1975 where the plaintiff's disability was put at 25 % and the court held that if the defendant had been found liable the plaintiff would have been awarded $\frac{1}{2}$ ,000.000 = by way of damages. Basing himself on these cases, Mr. Dagira prayed that an award of $\frac{1}{10}$ 80,000.000 = would be appropriate in this case for pain, suffering and loss of amenities.

Mr. Mutaawe referred me to Michael Mudedu /suing though next Friend vs Att-General (1979) HCB 150 where the plaintiff made a fair recovery from a head injury,

$2C$

てユー

$\overline{5}$

got impaired in his right hearing and half paralysed and eventually blind. His permanent disability was put at 100 % and he was awarded $\pm$ 350.000 = in general damages. He also cited the case of <u>Mutyaba Leonard lembatys</u> vs Attorney General SCCA 21/94 (unreported) where with a permanent disability of 65 % the plaintiff who was aged 16 years was awarded 🐄 10,000,000 = 🗉 ie submitted that on the basis of these cases the 2nd plaintiff should be awarded $\pm$ 3,000.000 = and at most $\pm$ 10,000.000 = in general damages.

While similar previous cases are a good guide to the court in assessing and awarding damages, they should as far as possible be cases which are recent to be useful. Cases which are far in the past may not be a useful guide due to economic changes and the effect of inflation. For this reason I did not find the cases decided in the $1970$ 's particularly useful.

Though I did not personally lay my hands on any recent case, I found the case of Barnabas Ntimba vs UEB (Supra) very instructive. In it the disability of the plaintiff was assessed at 80 $\%$ and he was given an award of $\frac{1}{2}$ 18,000.00 = The Doctor's report despribed him as having been reduced to a baby and totally dependent though he had been an adult farily head before sustaining the injuries. In the instant case the 2nd plaintiff's permanent disability was assessed at 70 % by 1. PW2 with which I agreed. PW2 also expressed the view that the 2nd plaintiff would not learn, with her disability any skills for her sustenance. In other words she is bound to be dependent the rest of her life.

Whereas in Barnabas Ntimba Vs UEB ( supra ) the plaintiff was an adult, the plaintiff in the instant case is aged only 9 years and likely to bear the brunt of the loss of amenities for much longer than an older person. Taking this factor and the fact that the Supreme Court decided Barnabas Ntimba vs UEB Supra about five years I am of the view that an award of $\frac{1}{2}$ ,000.000 = in ago, general damages for pain suffering and loss of amenities will meet the ends of justice of the case. This figure shall bear interest at court rate from the day of judgment

$-38 -$

$35:$

$\mathfrak{f}_\mathfrak{i}$

till payment in full. This money if prudently used $\boldsymbol{\varpi}$ could pay for some special education whereby the 2nd plaintiff could attain a skill of sorts.

The plaintiffs also prayed for special damages. The law relating to special damages is that they should be specifically pealded and strictly proved. The best way of doing, this in the case recorded transactions is by producing receipts. See Kibimba Rice Company CS No. 7/88 ULSR 101, Consultancy Gas Engineering Co. Ltd. vs Bitature & another SCCA 36/94.

But it is also possible to prove special damages by means other than producing receipts or documentary evidence in the case of transactions which are not ordinarilly recorded. This can be done by vividly describing the claim, the transaction involved or the article in respect of which the claim is made. See Christopher Kiggundu & Daniel Ssentongo vs Ugandan Transport Company 1975 Ltd. $SCCA$ 7/93 - (unreported).

Mr. Mutaawe conceded the sum of $\div$ 598.000 = claimed in special damages as proved. This sum was supported by receipts and other evidence. The plaintiffs however $\sqrt{\text{claim having incurred another } \text{th } 117.000}$ = by way of special $\mathcal{F}$ damages in respect of which no receipts were issued nor were the transactions leading to it vividly described as Ain Christopher Kiggundu & Daniel Ssentongo vs UTC 1975 Ltd ( supra ). For the above reason the sum of $\frac{1}{10}$ 598.000 = is wwarded to the plaintiffs as special damages.

In the result the 2nd plaintiff is awarded the sum of $\frac{1}{25,000.000}$ = in general damages for pain, suffering and loss of amenities with interest at court rate from the date of this judgment till payment in full. The defendant shall also pay the sum of $\frac{4}{3}$ 598,000 = as special damages to the plaintiffs with interest at bank rate from the date of filing/this suit until payment in full. The plaintiffs shall also have the taxed costs of this suit.


**MAGISTRAT**

CHIEF

Augustus Kania, Judge,

Salt.12.97.

.39.


## DECREE IN ORIGINAL SUIT:

THIS SUIT COMING this day for final disposal before the Honourable Justice AUGUSTUS KANIA in the presence of DAGIRA -SUZA Eeq for the Plaintiffs end G. B MUTANE Esq for the defendant whereby it is decreed and -: executes as bereators -:

- The defendant to pay the plaintiffs special $(i)$ demages of the. 598,000/- with interest at Bank rate from late of filing till payment in full; - (ii) The defendant to pay the second plointiff general gomages of Shs. 25,000,000/m with interest at court rate from date of ju gement till perment in full: - ( iii) The defendant to pay the taxed costs of this suit;