[1998] UGHC 20

### THE REPUBLIC OF UGANDA

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# IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT 380/1995

HELEN OPIO PLAINTIFF

## VERSUS

IMPRESTERLING IMPREST LTD DEFENDANT

BEFORE THE HONOURABLE MR JUSTICE I. MUKANZA

#### JUDGEMENT

The plaintiff filed this action, .against • the defendant claiming general and . special damages for injuries sustained by her. when the vehicle in which she was travelling got involved in I accident with another vehicle. •

UPO 167 on the Jinja Kampala High way when the defendants vehicle driven by the defendants servant which . acting 'in the course of his employment suddenly emerged from the defendants quarryat Mbale and without stopping for the traffic on the high way rammed into the mini bus which crushed into the • . • ditch nearby and in the process the plaintiff was.injured. The facts of this case were- simply that the plaintiff was travelling from Torero to Kampala in mini bus registration No. ' registration UPW 123

The plaintiff called a.total of.four witnesses whereas the defence called one witness in the names of Frank Karamuga DW1. In her evidence PW1 Helen Opio testified that she lives in

delegated by the medical officer to .collect proforma invoices from Jinj a and Kampala for the Hospital. it lO staldi G 1990 . She vehicle emerging. It was on the left hand side. That From that ^I 5 being lifted and placed in another vehicle. She was taken to Mtilago Hospital. a ward for "plaster of paris" (POP). *QJO* motor vehicle registration No. UPW 123 where on the vehicle, was It emerged from that spot speeding. It never stopped and since they were in the main 'road . the' vehicle knocked and pushed them in the ditch. Her right hand femur was broken she had brasions for both legs. She was xrayed and admitted to emergency **-45~** Tororoand works as a nursing officer grade I' in Tororo Hospital. She boarded a vehicle knocked the vehicle they were travelling in. moment she was unconscious and after sometime. . She found herself On 22nd June 1994 she was Next they had-to proceed to Kampala and boarded a mini bus 14 seater while in colour registration No. UPO 167. They were then proceeding to Kampala but when they reached Mbalala Trading Centre where there is a plant for quarry suddenly written Stirling A taxi and stopped at Jinj a where she collected proforma invoice for the Hospital. She completed her duty in Jinja. saw a

After a night the doctor realised the plaster was wrongly ■plasted. So she was taken for xray and after that he was plasted She was found bleeding and on investigation the doctor found that , phe was suffering from pneumonia which 'was . 'due to . annexia drugs. . Her limbs had abrasions and the injuries were serious and was put on hydrate was again removed. again'. • When she went to Tororo the plaster It was detected not in good shape she was for 2 nights in Mulago. At Tororo she was examined again.'

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for six hours.'

She went to Mbale where she continued with her She was treated after reexamination by treatment for fracture, the -senior surgeon". She stayed in Mbale for two weeks and came back to Tororo where she spent three months. After two weeks. she fully recovered from pneumonia. She was an in patient.

She uses Insurance Corporation. a motor cycle as a In fact her right-arm is weak and shorter.by 1.5 inches. She could not lift heavy things. result, to work in rural areas and this caused her to get an . the movable so she fell down and had'a fracture government. She tendered in evidence duplicate of the medical chits EXP 1 four documents. The originals were sent to the National accident because her right arm was weaker. . She could-not control

She lost ^I 5 ^a -golden watch which was not the list of properties lost. She gave Odimbe Advocates Shillings 300,000/=. He gave him a receipt 'exhibit P3. As she was coming to Kampala she had three dresses and other i property lost during the accident as per exhibit P2.

Apart.from the injuries she suffered she had a drugs shop. shop *•* She could not supervise. shillings 45,000/=. During that time he lost alot though-there'was During the period of 4' months someone in the earning daily income of she never earned anything she was

Before -then he was working at He recalled that when he was at he examined-Helen Opio and made PW2 was Dr. Odongo Simon Peter a lecturer at Makerere in the Department of medical surgery. Tororo at St; Anthony Hospital. Tororo that is on 22nd'June 1994

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I ! a report to that effect Exhibit P4.

When she arrived at the Hospital she had already had treatment at Mulago. She was admitted in the Hospital. He could not tell how long she stayed. St Anthony Hospital is a mission Hospital and from there he sent her to Tororo Hospital. Thev removed the plast and made a progress report. It was dated 22nd June 1994. A report about Mrs. Helen Opio dated 22nd July 1995 was tendered in evidence as exhibit P5.

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In cross examination PW2 replied when one gets a broken femur the period of recovery depends on age. But normally takes six to seven weeks and with children half to that period. In the case of Helen Opio the recovery took about three months. The injury took longer to cure because of the condition of the fracture. That was not the complex fracture he had ever seen but that was due to growth replacement of trigments. The treatment was not made to acceptable positions. That he stated his findings (in the report) without any prejudice. He was not in anyway favouring the patient.

PW3 was Sam Musisi the AEC Traffic Jinja Police Jinja District. He is an Assistant Inspector of Police. Before then he was in Mukono and was the AEC Traffic Mukono Police Station.

During the course of his duties he recalled of a traffic accident on 22nd June 1994 at around 10.15 a.m the accident was reported to him as having occurred at Mbale opposite Astaldi The witness together with his men rushed to the scene. Mbalda. They met when all the victims to the accident had been rushed to Hospital. They only found two motor vehicle at the scene. They towed the vehicle to the police station. They sent somebody to

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Mulago to trace -the victims.

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. At the scene the two vehicles involved in the accident were a toyota mini bus 167 and Astarting Ashatah. There were some The skid marks a result the driver of the omnibus tried ⁱ to break. The distance of the place (0 That was the spot of impact. And- as from the other side as one faces 2.5 metres. He observed where .the vehicles were MV UPO 167 was found on the right hand side as one moves from Kampala td Jinja. The ^J impact of the vehicle was in the report by the Inspector of vehicles MV UPO 167 belonged to Hirji Tomusange of P. O. Box 255 Mbale and the ot;her UPW 123 belonged to Stirling Astaldi P. O. Box 679 Kampala. The latter was driving to Kampala then MV UPW 123 emerged from the gate and thus collided with UPO 167. They observed the compact. of impact from the side of Astirling was 4.5 metres. Kampala was lying. were as The other ^I 5 vehicle.was lying 31.6 metres. -. The damage was extensive. white in colour Registration UPO another'vehicle was a pickup UPW 123. By way- of sketch plan UPO 167. was coming heading for Kampala and motor vehicle UPW 123 was coming • from the gate of a slid marks from UPO 167. He indicated 37 metres.

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• straight forward. The road was tarmac and traffic was light. His observation-about the accident. They put the blame on the driver The The weather on that day was clear and the road was dry and of careless driving and causing injuries to the victims. driver of UPW 123 disappeared after the accident. He abandoned of - UPW. 123 because he emerged into the- road side instead of ''stopping and give .way to the one coming-traffic. He'decided to enter the read when MV UPO 167 had also arrived. The charged him

Because of this the prosecution has not taken place. •the work and left.

The drawing is ^a true record of the scene. He.supervised an officer incharge. The sketch plants exhibit P6 . He made an abstract of the same exhibit P7. **s** the drawing as

In cross examination PW2 informed court that he found UPO 167 lying upon its back. They arrived at the scene when the They were not there when the accident, had just happened. accident happened. 'They just visited the scene.

The fourth witness called by the plaintiff was Ibrahim *IO* Wandago PW4 a resident of Mbale Namakwekwe a taxi driver with 18 years experience. In 1994 he was. a taxi driver and was still a He was driving The owner of the vehicle . was Abdu-Nuru Tomusange. He was workingin Mbale University. 15 taxi driver at the time he gave his evidence. Hiace Toyota registration No. UPO 167.

On 22nd June he loaded 14 passengers at Mbale taxi park \where only two alighted. He left Mbale at around 6.00 am and was driving towards Jinja. He loaded two more people. He arrived • in Jinja around 9.00a.m. a driving ,on his right hand. After the collision his vehicle overturned •and unconscious and when he gained his 'consciousness he found himself in Mulago Hospital. From Jinja he drove towards Kampala. As he kept on driving he arrived at Mbalda quarry where there was double cabin pickup which emerged from the gate of the quarry. He saw the vehicle in the middle and he saved his passengers by But he collided .with him there. he became

In cross. examination PW4 replied'that at the time of the accident he was driving 50 kilometers per hour. That is the

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speed he was as it emerged from the quarry He objected to the question that his vehicle knocked the broken . rib his right eyes . He consciousness at Mulago. •exhibit • P7 of these who were The pickup his vehicle factory and came into the road. for?. He never ran away. He sustained, a gained his It is true his name does not appear on injured because he was not looked driving from Namawojolo up to the quarry corner. The. vehicle emerged from the quarry factory and crossed into the road. rear of the pick up. and injured

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examination replied that the speed IO : instructions in the area where the accident happened. He was He swerved oh his right and him. driving at 50 kilometres per hour. barked to'serve his passengers but the pick up came and knocked he ' followed In re

15 incharge of*r*legal matters but said he was not a lawyer. He knew Helen Opio He was told their pickup was involved in the accident. He went to . It was a cabin Their omnibus had us The pickup had its rear part and its carrier part of it damaged. He enquired The involved a pick up on 22nd June 1994 . The'accident took place infront of their workshop at Mbalala on Kampala/Jinja Road. Mukono police station and saw the\*two vehicles. pickup UPW 123 and the a minibus UPO 167. front part badly smashed and.its rood'crumbled. as one of the injured party in an accident which from the police officer incharge traffic when the 2 vehicles would be. inspected because was interested in the issue. police informed him that arrangement were underway to have the with Stirling ^Astaldi as In his evidence Frank Karamuga DW1 testified that he works insurance officer and also- he is

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vehicles inspected byu the inspector of vehicles. The inspection was carried out and the reports on the two vehicles were issued. The bluish and white reports were tendered in evidence. The white one exhibit D2A and the bluish one exhibit D2B. At the time of the accident the pick up was driven by a driver whose name he did not know.

In cross examination he replied that his interest was to see the vehicle and how they were damaged and the positioning of the $\verb|vehicle.|^\cdot$

At the commencement of the trial of this case the following IО issues were framed and agreed upon by the parties.

- whether the accident was due to the driver's $(1)$ negligence. - $(2)$ whether the defendant can be held liable. - $(3)$ whether the accident was due to the drivers $15$ negligence.

what injuries and losses suffered by the $(4)$ plaintiff.

what remedies are available quantum of damages. $(5)$

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On issue No. 1 there were two drivers involved in the $\mathcal{O}$ O Mbalala motor accidents. That is the driver of omnibus toyota UPO 167 and the pick up UPW 123. Evidence from the two eye witnesses that is PW1 a passenger and the plaintiff in UPO 167 and the driver PW4 of the said omnibus show that the driver of the pickup emerged from the quarry and rammed into the main road $\mathcal{J}5$ where by he collided with the omnibus UPO 167 which was on the main road. In fact the driver of the pick up before emerging into the main road he should have been on the look out to see

$\text{III}\text{III}\text{III}$ He should have looked on He could have also stopped for traffic on -the main road to pass. He failed to apply the brakes of his vehicle and or should have .manounvred the vehicle so as to avoid the said accident. The driver on the omnibus was among slowly. The defence offered no explanation as to accident happened. I am not by so finding shifting the burden part of plaintiff's case is un . impeachable over this particular issue. Mr. Mutawe the learned counsel who represented (0 the defendant submitted that no one knew how the accident happened and that the only witness in the omnibus was shouting and or screaming and that the evidence of PW3 should be ignored because he. was not there and further submitted that exhibit P7 *I 5* Teopista Nakajja and Wako Micheal and -yet people were never called as witnesses. With due respect it is not true that there was nobody at the scene who witnessed the accident. There was the driver of that vehicle PW4. ^I Mutawe that PW3 was never at the scene of the accident and that whatever he told court about how the accident occurred was to say the list hearsay evidence nonetheless. PW3 some useful the positioning of vehicles and the damages caused to the same. **25** the affirmative in that the 'accident was due to the negligence of the pickup UPW 123. There was no contributory negligence on the part of PW1 and PW4. the plaintiff ^tPWl who was a passenger in the omnibus UPO 167 and do however agree with Mr. -53 any vehicle coming. his left and right handside. of proof on the defendant but it would appear the evidence on the the whether there was Issue No. 1 is in the two how the information about the scene like an abstract exhibit P6 showed that there were.two eye witnesses

$-53-$ Issue No. 2 is whether the defendant could be held liable. The defendant could be vicariously liable for the acts of the driver of UPW 123 if the accident was caused during the scope of his duties. The principle in fact is that the master is vicariously liable for the acts of his servant committed within 5 the scope of his employment whether the acts are negligent, deliberate, wanton or even where they are done contrary to the master express orders provided that it is merely the wrong method of carrying out his duties See Muwonge vs. Attorney General 1967 EA P17 where the appellant's father in the above case was killed $10$ during a riot. The shot which killed him was fired by a policeman who had seen the appellant run towards a house hand concluded that the appellant was a rioter and having followed him fired wantonly into the house not caring whom he killed or injured. At the time stones were being thrown and shots were $15$ being fired nearby. It was held that the firing of the shot was an act done within the exercise of the policeman's duty for which the government of Uganda was liable as master even though it was wanton as even though unlawful and unjustified whereas in Namwandu vs. Attorney General 1972 EA p108 where a lorry carrying DO soldiers of the Uganda army was involved in an accident in which The soldiers were in uniform and some soldiers were killed. armed. The civilian driver of the lorry with which the army had been in collision together with a school girl by stander were. murdered by soldiers. It was held that the soldiers were acting $25$ for their own purposes and not in exercise of any duties. The ¹ Government was not vicariously liable for their acts and that the soldiers were not doing anything to maintain public order.

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In the instant case the driver of UWP 123 the pickup was unknown. Both the plaintiff's case and the defence show that immediately after the accident he disappeared. DW1 the insurance officer and legal officer who appeared on behalf of the Defendant company informed court that motor vehicle UPW 123 the pickup belong to their company but he did not know the name of the driver. He did not deny liability throughout his testimony. In my humble view he admitted liability.

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The learned counsel who appeared for the defendant company submitted that issue No. 2 should be held in the negative because $IO$ vicarious liability was not proved and the burden of proof lies on the plaintiff. The case could not therefore succeed. The plaintiff should sue both the master and servant. This is because if the servant was before the court, the court would ascertain whether the servant committed the tort in the course of $15$ employment.

Be that as it may in J. F. Ijala vs. corporation Energo project 1988-1990 HCB page 122. In holding 2 Byamugisha J held that where the plaintiff in an action for negligence proves that damages have been caused by the defendants motor vehicle. The $\mathcal{Q}O$ fact of ownership of the vehicle in question is prima facie evidence that at the material times, it was being driven by the owner or by his agent and or servant unless the contrary be proved.

In the instant case as admitted by DW1 that UPW 123 was the $25$ defendant's vehicle the said could not have left the premises without the knowledge of the Defendant. The vehicle could have been driven by-the defendant's servant and or agent. When the

river co defendant the defendant would definitely for the drivers acts which were (the drivers) is apparently committed during the scope of his ■therefore in the affirmative. or agent of the defendants drove the pickup by merely ntering into the main road without stopping to wait for vehicle >n the main road to stop that was the wrong method of the driver carrying out his duties and though the driver- did not come to give evidence nor made aparty to the proceedings as

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the ' drivers negligence ? covered when considering 10 issue No. 1 and in fact it was in the affirmative. The third issue is whether, the accident was This issue was due to

ⁱ Issue No. ⁴ what injuries suffered Evidence show that PW1 had .which though healed and united was inches. the limbs. She was tendered in by the defence EXD1.. Precisely the reports show shortening' of two inches subsequent permanent functional incapacity of 10 percent. pneumonia as a result of the accident which was due to annexia of drugs. There were in fact about 'three medical reports and one short by between 1.5 and ² contracted ¹ 5 by. the. plaintiff. injuries sustained by PW1 and EXP5 showed that the carrying angle / reduced to 105 degree apparently a -fracture of the right hand femur of the right upper limbs was She had a brasion of

The last issue is about the quantum of damages.

as already explained above that the as a result of accident of two vehicles '2-5 including one in she was travelling she sustained comminuted fracture of the right 'humerus (arm)' multiple abrasions: The injuries were described by the medical report plaintiff got injured which In the instant case

exhibit P4 as dangerous harm to her life. There was shortening of' the PW1 said it was The arm is weak and could not nursing officer her work involving visiting rural areas and does this by means of riding • ^a motorcycle. It appears as a result of the accident she cannot do this. And on one occasion when she tried to rode one she was motor cycle accident because her. hands were week she. injured her knees. IO Because of the injuries she sustained she was off • duty for a period of 4 months. lift heavy objects. arm put at ² inches by. PW2 the doctor. 1.5 inches. involved in a As a

She suffered as a result of those injuries and did also contract pheomonia. ' . Micheal Wilkinson of *^I 5* and Pauline Senkiko on their second edition on decisions of the court of appeal for East Africa. And the High Court of Uganda. On quantum of damages 1972 edition 'reported ^a number of cases on personal injuries (false imprisonment and defamation). Her arm was put in plastic of paris at Mulago Hospital. The plaster had to be adjusted on about two occasions and she even got. further treatment as St. Anthony Hospital Tororo and even for further treatment at Mbale. new development centre

In Mohammadali Mitha and 31/63 HCCS No. *600/62* Slade J as he then was. The action was an injury to left arm and wrist. The plaintiff was left handed and there was compound fracture of left humerus and lost of left scaphoid.•' Damage to tandons of.left hand and fracture at lower He was awarded anor vs. Santa Singh Jandu, MB and of radius permanent disability 50% and 60%. general damages of 35,000/= shillings..'

No. vs. Attorney 12 KM Vaghela And in yet another case

General MB 82/63. Slade J. The plaintiff was a school master aged 34. Super facial wounds received in accident and fracture of both bones of the left forearm was in plaster for 6 weeks. There was 30 degrees angulation at site of fracture. There was 20% degree of disability and possibility a estarorathritis. General damages of shillings 16,000/= was awarded. See also in Ezera Kato vs. Yaaha Mr. Kiggundu MB 141/71, HCCS No. 147/70 Jones J. The plaintiff suffered injury to his left arm involving fracture of radius and ulna. Left forearm deferred from the site of the structure marked washing of left forearm muscles and the power of the arm was reduced, limitation of rotation movements between the two forearm bones. Wrist movement also slightly reduced. Not likely to be promoted due to the disabilities plaintiff suffered pain and shock and got tired very quickly could not left anything with his left arm. General damages of $55.000/$ = shillings was awarded.

I have not come across a................................... injury sustained by PW1. However taking into account the fact that the case referred to above were decided about three decades . ago when the shillings was very strong and taking into account the inflation in the country which is very high and the fact that the PW1 is about 50 years old and her disability of between 10% and 50%. Doing all the best in the circumstances I am of the view that general damages of shillings 6 million will properly compensate him for the injuries he suffered and inconvenience caused as a result of the said accident.

The plaintiff claimed loss of earnings when she could not attend to her drug shop where she used to earn about 45,000/=

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shillings daily. award of special damages but this has Kampala City Council EA page 446. to be proved specifically see Humb Hussein vs. Hunt 1964 EA p201, vs. Nakaye 197^ In fact this falls under an

For loss of business accounts general damages may be available see Kibimba Rice Company Co. Ltd vs. Lumar Salim civil appeal No. 7 of 1988 Supreme Court Reported 1992 V KALR page 17. DW1 did not show andy account how he got the said daily income. For loss of business ^I would only give (O him.general damages of ³ million shillings, or receipts against outgoings have to be shown where accounts are not maintained an award for

The plaintiff also exhibited in court properties loss result of the accident. The list exhibit P2 shows that he .lost X. properties to the tune of shillings 2.077.100/= shillings. These were pleaded but when she gave-her evidence she mentioned only ^f 5 that she lost address worth shillings 360,000/= and then her She never said award about the rest those items he pleaded and specifically proved i.e. shillings 360,000/= plus shillings 500,000/=, 860,000/= shillings. These were old items *^0* receipts would not be produced. as a golden watch cost 500,000/=. •of the items. I will award her. the cost of

delivery of this judgment, till payment in full. In the end the plaintiff is awarded costs of this suit and interest on the decretal sum at court rates from the date of

In ^a summary the plaintiff has proved her case on ^a balance ^5 (i) of probabilities and ^I entered judgment in her favour as follows. General damages of shillings 6,000,000/= (six million shillings). General damages for

loss of business Shs.3,000,000/= ( Shillings Three Million);

,(H) special damages of Shs. 860,000/= (Shillings Eight Hundred Sixty Thousand);

(iii) interest at court rates from the date ofjudgment till payment in full;

(ivy • tlic Plaintiffis awarded costs of tliis suit.

*I, Mukanza* JUDGE

1.4.1998: .

Mr. Omara Atubo for the Plaintiff

Mr. Mutawe for the Defendant

Mr. Masongole, Court Clerk

Court: Judgment is read and signed. **IO**

AA/*'ukanza* JUDGE

2.4.1998

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