[2004] UGCA 36

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

### **CORAM: HON JUSTICE A. E. N. MPAGI-BAHIGEINE, JA.** HON JUSTICE S. G. ENGWAU, JA HON JUSTICE C. K. BYAMUGISHA, JA.

and an an

### CIVIL APPEAL NO.41 OF 2002

# GASO TRANSPORT SERVICES LIMITED :::::::::::::::::::::: APPELLANT VERSUS

#### <table> BAKER KIKAMBI :::::::::::::::::::::::::::::::::::: **RESPONDENT**

**Appeal from a decree of the High Court at Kampala** (Lady Justice A. Magezi) dated 7^th September, 2001 in Civil Suit No.577 of 1990]

### JUDGEMENT OF A. E. N. MPAGI-BAHIGEINE, JA

This appeal arises from the judgement and orders of the High Court at Kampala (Magezi J), dated 7^th September 2001. The appellant was successfully sued in negligence arising out of a motor accident and was adjudged to pay to the respondent Shs.20,000,000= by way of general damages; Shs.1,208,110= as special damages and interest on the decretal amount at the court rate from date of judgement till payment in full. Hence this appeal.

The facts were as follows. The appellant, Gaso Transport Service Ltd, which carries on the business of passenger transportation, was at the material time owner

of an Isuzu passenger bus No. UXSl06, in which the respondent, Baker Kikambi, was employed as an Inspector. On l0'r' October 1989, while the said bus was proceeding to Masaka, being driven by the appellant's lawfully authorised driver, it got involved in an accident in which the respondent sustained serious injuries involving loss of a leg. The learned trial Judge found the appellant vicariously liable in negligence as pointed out above.

The mernorandurn of appeal corrprises ol eight grounds, nanrely:

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- l That the learned tri:rl Judge erred in law :rnd fact when she relied on the contents of the medical reports tentlered in as Exhibits Pl and P2. - 2. That the learned trial Judge erred in law and fact when she relied on ^a police abstract report which had not been tendered in as an exhibit. - 3. That the learned trial Judge erred in law and fact when she invoked the doctrine of res ipsa loquitor. - 4. That the learned tri:rl Judge erretl in law and fact when she held the defence rvitnesses to be inconsistent. - 5. That the learned tri:rl Judge erred in law irncl in fact when she ignorcd the contradictions in the plaintiffs evidence. - 6. That the learned trial Judge erred in law and in fact when she rejected the defence of inevit:rble :rccident. - 7. That the learned trial Judge erred in larv and in fact rvhen she awarded special damnges which had not been strictly proved. - 8. That the leaned trial Jtrdge erred in law rvhcn she failed to properly evaluate the evidence on record.

Regarding ground l, Mr Joash Sendege, contended that neither Dr Mary Lynch nor learned counsel fbr the appellant, Prof-essor Sekabunga was called to

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prove the contents of the medical leport each had allegedly autlrored. He argued that this was contrary to the mandatory provisions of Section 65 of the Evidence Act. It was not enough to admit a docurnent by consent, its contents had to be proved. Citing Attornev General vs Baranga (t976) HCB 45 he subrnitted that the descriptions of injuries in the medical reports were different fiour some of those specified in the pIaint. He tirrther cited Musisi Dirisa and 3 Othcrs vs Sietico (U) Limited, Sunreme Court Civil Anneal No.24 of 1993, and pointed out that it was only the authors of the medical leports who could have resolved the discrepancies between the plaint and the reports otherwise the said reports were rendered hearsay evidence. In his view the learned JLrdge had no basis lbr assessing and awarding genelal darnages tbl in-iLrlies.

Mr John Matovu, learned counsel, for the respondent submitted that the medical reports, Exhibits Pl and P2 were tendered in evidence with leave of the courl on application, under Order' 7 rules I8 and I9, Civil Procedure Rules.

Mr Mulindwa, the then counsel fbr the appellant who had initially objected to their admission did not object after the Judge adrnitted thern fbr use in evidence as Ex P1 and P2.

Mr. Matovu pointed out that apart frorn the rnedical evidence there was other 20 overwhehning evidence to prove that the appellant was involved in that particular accident and had sustained the injuries mentioned in the rnedical reports, which injuries were apparent in court as the learned Judge commented. In his view the case of Musisi Dirisa and 3 Others (supra) was inapplicable. Regarding the variance of the injuries in the plaint and the nredical reports, Mr Matovu explained that the plaint had been filed long before the reports were received by the appellant, but that the evidence in couft was specific and tallied with the reports.

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The learned Judge held:

"It is app:rrent that the plnintilT suffered injuries. These were apparent in this court and the detailed injuries were incorpor:rted or explained in the medical reports that were submittcd to court, With due respect I am of thc opinion that it is not contentious that the plaintiff suff'ered injuries."

The respondent Baker Kikarnbi is recorded as having testified at page 54 of the record, line ³:

" The docunrent shown to me w:rs given to me by Dr Sekabunga and dated 18.12.90. It is signed by Prof. Sekabunga. I took the report to my lawyers. . ."

Court ' l '' Exhibit tendered and marked - Exh. P l .'

"I rv:ls referred by Dr Mary Lynch to Mulago from Kitovu Hospital rvhere I had treen admitted. Dr Mary Lynch gave nre a report after ^a discharge from hospital."

Court 'Tendered w/o objection - marked Exh. Pl l.'

"I spent 43 days in Kitovu Hospital I expended money at the hospital Gaso paid for the hospital bills:80871. I paid other expenses . . ."

l0 Under cross-exaur ination by Mr Peter Mulira and Mr Mulindwa, the respotrdent infbnned court that Proftssol SekabLrnga died befbre he cor.rld testify and that Dr' Mary Lynch had returned to Ileland.

The first report by Dr Lynch dated 28.02.1990, of Kitovu Hospital stated:

". , . He had a double compound fracture of the left femur and severe injury of the foot of tlre same leg which was almost totally ripped off. He also had a small laceration of the scalp lvhich required suturing.

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He was dischargecl to the Limb Fitting Unit of the Retl Cross on 22"d February, 1990 and will be incapacitated for life due to the loss of his left Ieg."

### Sgd. Dr Mary Lynch FRCS

Ex P2 frorn Professor Sekabunga datecl l8'r' Decerrrber, 1990 stated

". . When I sarv him on 17.12.90 he rvalked rvith crutches. He stated that he had lost his job as a bus inspector.

On examination the opcration wound was healed. This young man sustained a compound fracture of the left femur rvith severe injury to the left foot as :r result of which an above knee :rnrputation of the lett leg rvas carried out. His permanent disability is 65% (sixty five per cent).

### Sgd. Sekabunga FRCS

The Amended Plaint dated l9'r' Decernber l99l paragraph 8 particularises the personal injuries as fbllows:

- (a) Loss ofthe left leg - (b) Serious deep cut wounds on the right leg leading to partial paralysis - (c) Serious head inj u ries - (d) Deep cut wounds on the left hand - (e) Pain and shock.

It is thus clear that the injuries described in the medical reports tallied with the amended plaint of l9'r'December 199 I contrary to Mr J. Sendege's asseftion. The authorities he cited are theletbre irrelevant.

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It is well settled that in civil cases technical rules of evidence can be dispensed with by consent. The rnode of proof of a docurnent being a qllestion of procedure may be waived by consent and if this is done there can be no subsequent objection

## - See Sarka On Evitlence. l{tr'E,clition 1993. Volume ^I Dage 85.

All counsel seeln to lrave content with the medical repofis as they were.

As pointed out by Mr Matovr-r there was other overwhelrning evidence to establish the fact that the accident had indeed occurred and that the lespondent had been one of the victirns. Hali Ziadi Mukasa, DW I testitled having been in the sarne bus:

" In 1989 I was a conductor of Gaso Transport Services Ltd. On 10.10.89. My bus involved in an accident. . ."

Under cross-examination he stated:

\*. . . I left K'la at 6.30 on the day of accident Baker was in the Bus. . that day he was an inspector.

I have given evidence in a similar accident - (anxious) .

The plaintiff lvas seated in front of me. Plaintiff was seriously in iured." . . I sustitinctl a nrinor iniurl .

Other cases arising out ol'the sarne acciclent \*'cre Mulutsrt vs Akamba (U) Ltd. HCCS No.l97190 (l'lgond:r-Ntcntlc .1.) and Nlartive Orlali:r Obqqr 11 (J:rso l0 Transport Services Ltd. HCCS No.7-10 B of l99l (Kireiu .r. (RIDI,

Furthermore it is trite law that medical evidence is rnerely corroborative, being primarily evidence of opinion and not of fact. The leaned Judge could not and did not rely solely on the medical reports as decisive, as this would l'ender the other evidence as entirely tiuitless. She considered other fbctors. She saw and observed the respondent's physical condition of scalring and shortening. There was no suggestion of rnal i ngeri ng.

I would disrniss ground I .

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Regarding Ground 2, the police report was never objected to. This was the basis of the suit. If the appellant wished to prevent it fiorn being used in court, it should have been objected to at the beginning. The record does r.rot rnake this clear. However, the learned Jr-rdge based her finding on the oral evidence of the witnesses of either side.

The learned Judge cornu.rented:

". . . If the speed had not been fast the court is of the view that the driver rvould not have r:rmmed into the st:rtionery vehicle with all the intensity resulting in the devastating loss of life, injuries to the passengers :rs lvell as the destruction of the vehicle/bus as described by the police abstract report annexed to the plaint."

Any inferences she rnight have made regarding the contents of the report was not prejudicial to the appellant's case. This was overwhehning oral evidence on which she based her finding. These were legitimate inf'erences which could have been made even without looking at the report, in the circumstances of this case. I would therefore dismiss ground 2.

l0 As regards Ground 3 that the learned Judge erred in law and fact when she invoked the doctrine of res ipas laquitor as it had not been pleaded in the plaint and no evidence was led to prove it, Mr Sendege argued that the leaned Judge rrisapplied the doctrine resulting in wrongly deciding the suit against the appellant instead of disrnissing it.

t0 Mr Matovu submitted that the doctrine rnight be invoked where the cause of the accident was not known but in the case it was known. The learned Judge was therefore in order.

The learned Judge held at page 84, line 5:

"Ordinarily and by the doctrine of res ipsa laquitor which requires ^a duty ofcare to passengers. The cloctrine shits the burden of proof to the operator/driver to disprove negligence. It was incumbent on the defendant to prove that the accident lvas wholly or contributory (sic) caused by the othcr vehiclcs e.g. The station:rry vehicle or the vehicle whose lights blinded him. ."

The doctrine and its purposc is outlinecl in thc case ol'Scott vs London and St. Krrthcrinc l)oclis ('o. ( Itt65) H. C.596. l-j l,T l-18. rihclc thc nrerchanclise bein lowered in a crane slipped out of its fastenings and t'ell upon the plaintiff. It was held that where the thing is shown to be under the management of the def'endants or his servants, and the accident is such as in the ordinary course of things does not happen if those who the managelnent use proper care, it affbrds reasonable evidence, in the absence of explanation by defendant, that the accident aroslliqn want of care. The mere fhct of the accident is prinra fhcie evidence of negligence. The burden of prooltherefore is on the det'endant to explain and to show that the accident occurred without any t-ault on his part. - Cole vs De Trafford (No.2) (19r8) 2 KB s23.

As rightly pointed or-rt by the learned Judge the principle only shifts the onus of proof. Most irnportantly, it does not have to be pleaded as argued by Mr Sendege.

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## o wLR 1571. Bennett vs Chemical Construction (G.l]) Lttl (1971) 3 AER 822; (1971) I

Considering the circumstances ol this case and applying comrron sense, it is out of the ordinary for a vehicle to knock a stationery lorry, hit an electric pole in front of that lorry and ovefturn into a swamp, some distance away fl'orn the road if one managing that vehicle has proper control of it. The record does not indicate any convincing explanation fiom the appellant exonerating hiur.

Ground 3 would also fail. It is devoid of any rnerit.

I0 Regarding grounds 4 and 5 that the learned trial Judge erred in law and fact when she held the defence witness to be inconsistent, Mr Sendege pointed out that when the witness Haji Zaidi Mukasa (DW I ) said that he only recognized the lights of the oncoming vehicle which blinded them, he was ref'erring to lights as such and not the source thereoi. He argued that if he states as he did that he could not see the stationary vehicle, his explanation was because of the blinding lights. He should have been believed.

Mr Matovu agreed with the learned Judge that the evidence of Zaidi Mukasa was totally unbelievable and his derneanour not convincing. If the lights of the bus were working normally and the appellant's driver was not speeding, he could have easily noticed the stationary vehicle f-r'orn a long way befbre being blinded by the oncoming vehicle and he could have breaked in tirne to avoid the accident.

The learned Judge lernarked:

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". , . I rvas on the other hand uninrprcsscd by the cvidence of Zaid the defencc rvitness. I noticed his anxictv rvhilc tcstil\'ins and rvas of the vicrv that he rvas not convrncrn . lt is not truc that hc rvas not crossexamined. The record indicates that hc n,as vigorously cross-examined (sic) for exanrple he respontled to a tluestion in cross-ex:r mination that he had sat behind the plaintiff. He did not recognize the stationery vehicle. He only recognizetl the lights of the oncoming vehicle rvhich allegedly blinded them. He saicl that the bus had proper lights on. If that had been the case it is contratlictory to say he did not see the stationary vehicle unless they rvere clriving at a very high spced. He again contradicted himself that :rlthough Lrvera is a straight stretch he failed to see the oncoming vchicle rvhose full Iights blinded thenr occasioning the srven,ing and r:rnrnring into the stationery vehicle. I prcferrecl the evidence of the plaintiff and his rvitnesses because they ryere both inrpressive as lvitnesscs :tnrl lvere consistent, . ."

It is noteworlhy that in running down cases, the Judge sees and hears the witnesses and obtains the atrnosphere. Unless the witness is a skilled actor, his demeanour Ilequently furnishes a chle to the weight of his evidence. Valuable inf-erences are derived frorn watching a witness testify. Even the most carefr.rl note by the Judge oftentime fails to convey the evidence fully in some of its Inost important elernents but she retains a vivid picture in her rnind. The Coun of Appeal, would theretbre not interf'ere where it is appalent ti'orn the record that she took all the circumstances into account and based her inf'erences upon the evidence before her.

Zaidi's testimony is as fbllows:

"We were involved in an accidcnt in Lrvera. An onconring vchiclc flushcd lights in us - our drivcr srverved from the road. The oncoming vehicle tlid not dinr. Our driver tlinrnred trut this tlid not help because of the clazzling lights from the onconting vchiclc. C)ur vchicle r:tmnted

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into the stationery vehicle. He tlicl not ranr into it hc knocked it on the o front tr:rrt. Thc strtionerv vchiclc rl as on the lelt sidc - partly in the road. Our vehicle did not remain stationery on the road it fell into ^a water pond on the left side of the road. .

The stationery vehicle was l-acing Masaka, it could not have been hit on the front part.

Under cross-exarnination he stated:

". . . I nrentioned the onconring vchicle - antl thc stationcry' vehicle. ^I rccognizcrl thcrn onc that lights surldcnll' (sic) rvhiclr blinded us firr l0 some time so that rve coultl not see properly. lmmediately there was ^a bang. I did not know lvhere this vehicle was moving or stationery. I heard later that the vehicle had been stationery. The vehicle was facing Masak:r. We b:rnged the back part of the stationery vehicle. Our bus srverved and knocked an electric pole and fell on the left side of the ro:ld.t'

In view of the above contradictory evidence the learned Judge was clearly justified in her findings. ll on a straight stretch load in Lwela, the driver 1'ailed to sight the stationery vehicle or the oncoming vehicle and reduce speed in tirne, this in itself is rnore than ample evidence of excessive speed coupled with the bus's bad lighting.

lo Grounds 4 and 5 rvoLrld thil

Regarding grounds 6 and 8 that the trial Judge erred in law and fact in rejecting the defence of inevitable accident, Mr Sendege argued that this defence had been established by DWI under cross-exarnination at page 63 of the record. Under these two grounds Mr Sendege alludes to the Sketch Plan which he said showed the stationery car to be in the rniddle of the road.

Mr Matovu pointed out that it was unjr-rst for Mr Sendege to rely on the Sketch Plan for which he had criticized the Judge fbr comrrenting on it and making inferences thereflorn.

I agree with Mr. Matovu.

Mr Sendege cannot reprobate and approbate. Having sought rejection of the Sketch Plan, he cannot be allowed to base his defence on it. Nonetheless a careful look at the said plan indicates the stationery vehicle to be on the left hand side of the road and that is where the point of inrpact is. This was further confirrned by DWI in his evidence at page 63 line 7:

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## ". . the stationerl'r'chicle rvAs on the lelt sidc..."

Ground 6 and 8 would also f'ail.

As regards ground 7 concelning the special daurages Mr Sendege argued that the special damages awarded were not strictly proved as no receipts were produced nor were witnesses called to testity.

Mr Matovu pointed out that the respondent was intensely cross-examined by both counsel for the det'endants, and he ably explained the absence of receipts.

He told couft how he spent 43 days in Hospital. Aftel discharge most of the expenses went on transporl and fbod. Nobody would expect any acknowledgernent receipts tbr fbod and tlansport. He had to pay for the reports and the clutches unless they were donations. He owned up to having lost some of the receipts totaling about Shs.290,000/= .

Most importantly, this accident occurred on 10.10.1989 and the hearing did not commence until August 2000. This period would be too long under the circumstance for any body to keep all these receipts. However, amounts claimed were reasonable considering the suffering he underwent.

I think courts must be realistic and accept as much certainty as is reasonable having regard to the circumstances of the case. All that is required is credible evidence.

As was succinctly put (inter alia) in Ratcliffe vs Evans (1892) 2 QB 524, 523 – **533 (C. A regarding proof of special damages:**

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## . . To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry."

I would accept the respondent's evidence as did the learned trial Judge.

Ground 7 would fail.

Ground 8 concerning the evaluation of evidence is superfluous.

Consequently I would dismiss this appeal. Since Engwau and Byamugisha JJ. A. both agree the appeal stands dismissed with costs.

Dated at Kampala this $\mathcal{L}$ day of Angust 2004

A. E. N. MPÁGI-BAHIGEINE **JUSTICE OF APPEAL**

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