[2024] UGHC 935

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT-01-CV-CS-007 OF 2022**

**KIIZA CHRISTINE :::::::::::::::::::::: PLAINTIFF**

*(Suing through her next Friend Amanyire Richard)*

**VERSUS UMEME LIMITED :::::::::::::::::: DEFENDANT**

## **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO JUDGMENT**

#### **Introduction**

The plaintiff, a 12-year-old girl, suing through her next friend, Amanyire Richard, her father, filed this suit against the defendant company for general, special and exemplary damages together with costs. Her claim arises from the alleged negligence and breach of duty on the part of the defendant company.

#### **Brief Facts**

The plaintiff's claim against the defendant company is that on August 16, 2021, rotten electricity poles carrying live wires belonging to the defendant company fell and were left lying on the ground along a common footpath in Kinyerere Trading Centre, Rugombe Town Council, Kyenjojo District. At approximately 9:00 am on the same day, while lawfully walking on the footpath and carrying elephant grass, the plaintiff, unaware of the fallen electrical poles with live wires, was suddenly electrocuted and severely burnt. The plaintiff was immediately taken to Kyenjojo Hospital and later to Fort Portal Regional Hospital, where three fingers of her left hand were amputated. The plaintiff claims that the electrocution, occasioned on her by the defendant company's negligence, has left her left hand permanently disabled, for which she seeks specific and general damages.

In its written statement of defence, the defendant company, which is licensed by the Government of Uganda and tasked with the distribution of electricity, denied the claim by the plaintiff and stated that damages suffered by the plaintiff, if any, were as a result of third-party actions and the plaintiff's own contributory negligence.

### **Representation and Hearing**

At the hearing, Mr. Muhumuza Simon Kateeba represented the plaintiff while Ms. Janet Murungi represented the defendant company. To prove her case, the plaintiffs led evidence from 5 witnesses while the defendant led evidence from 1 witness. The hearing proceeded by way of witness statements. Both counsel filed written submissions which I have considered in this judgement.

#### **Issues for Determination**

In their amended joint scheduling memorandum, counsel for the parties agreed and submitted on 3 issues for this court's determination:

- 1. Whether the alleged incident was a result of the defendant's negligence. - 2. Whether the plaintiff was contributorily negligent for the injuries she suffered. - 3. What remedies are available to the parties?

#### **Burden and Standard of Proof**

In civil matters, the burden of proof rests on the plaintiff who must adduce evidence to prove his or her case on the balance of probabilities to obtain the relief sought (*See: sections 101-103 of the Evidence Act Cap 43).* The court must be satisfied that the plaintiff has furnished evidence whose level of probity is such that a reasonable man might hold that the more probable conclusion is that for which the plaintiff contends (**See:** *Lancaster v. Blackwell Colliery Co. Ltd 1982 WC Rep 345* and *Sebuliba v. Cooperative Bank Ltd (1982) HCB130*).

#### **Consideration by Court**

## **Issue 1: Whether the alleged incident was a result of the defendant's negligence**

PW1, Amanyire Richard, the father of the plaintiff, testified that on the 16th of August 2021, three electricity poles carrying live wires belonging to the defendant company fell along a footpath at Kinyerere Trading Centre in Rugombe Town Council and were left unattended to. That the electricity poles fell because they were rotten, and the defendant company had not bothered to replace them. At about 9:00 am or shortly thereafter, the plaintiff who was carrying elephant grass while lawfully walking on the said footpath and unaware of the fallen poles came into contact with the live wires and was electrocuted and severely burnt.

PW1 further stated that when he heard an alarm raised by his wife, the mother of the plaintiff, and immediately rushed to the scene where he found the plaintiff still lying down near the loose live wires. Immediately together with other people, like Abigaba Richard, they took the plaintiff to St. Magaret Medical Centre in Rugombe where the plaintiff received first aid and was later taken to Kyenjojo Hospital where she was admitted for one week and had her two fingers on the left hand amputated. Later, the plaintiff was referred to Fort Portal Referral Hospital where she underwent a further surgical operation and had her third finger amputated.

It was the testimony of PW1 that the electrocution of the plaintiff had left her left hand permanently disfigured and unable to perform her normal duties like fetching water and doing other house chores.

A police medical examination form (PF3) dated 22nd September 2021 was admitted in evidence as Pexh 1 while an inpatient discharge form for the plaintiff dated 21st of September 2021 from Fort Portal Regional Referral Hospital was admitted in evidence as Pexh 2. The photos showing the plaintiff's amputated hand and fallen electricity poles with live wires were collectively admitted in evidence as Pexh 3.

The testimony of PW1 was corroborated by PW2, Kajumba Annet, the mother of the plaintiff who testified that on the 16th of August 2021 at around 9:00 am, she and the plaintiff were walking on a footpath with the plaintiff ahead of her, and the plaintiff was suddenly electrocuted by the live electricity wires. She immediately made an alarm which attracted the nearby residents, including her husband, PW3 and PW4, who took the plaintiff to St. Margaret Medical Centre for first aid.

PW3, Abigaba Richard told the court that before the incident, he could visibly see that the electricity poles were weak/rotten, and he saw them falling due to strong wind. PW3 stated that it is the live wires that caused the electrocution of the plaintiff and that he also witnessed the replacement of the weak and fallen poles with new ones by the defendant company employees.

PW4, Asiimwe Rodgers told the court that on the 16th of August 2021 at around 9:00 am, while at Kinyerere Trading Centre, he heard an alarm in the neighbourhood and rushed to the scene where he found the plaintiff lying across the road having been electrocuted by live wires attached to the fallen electricity poles. He rescued the victim and then took her to the nearby medical centre for treatment.

The plaintiff, who testified as PW5, told the court that on the morning of August 16, 2021, she went with her mother to collect elephant grass. On their way back, while carrying the grass and walking along the footpath, she suddenly lost consciousness and later found herself in the hospital, where she was informed that she had been electrocuted by live wires from fallen electricity poles.

For the defence, DW1, Gitta George Willy, a Network Technical Officer for the defendant company attached to Fort Portal Area told the court that on the 16th of August 2021 at around 8:30hrs, he received a call from the Operations Manager reporting about broken electricity poles at Nyakatooke, and he immediately proceeded to the site. When he reached the site, he found broken conductors and three broken LV poles which had been damaged by the trees that had been cut by unknown persons.

While at the site, he discovered that some eucalyptus trees next to the way leave corridor had been cut and there were sports of the short circuit by the phase conductor. He tried to find out which people had cut the trees but in vain. It was the testimony of DW1 that he went ahead to isolate the LV line by opening the LV jumpers and the transformer fuse dropouts to allow the feeder to re-energize. After isolating the lines, he then called the overhead team to recover the broken poles and conductors, and the matter was reported to Rugombe Police vide Ref. No. SDREF 10/16/08/2021.

DW1 testified that according to his investigations, the cause of the accident was the cutting of the nearby trees by unknown persons and failure to report to the defendant company the broken conductors and poles on time. DW1 further told the court that there was no report of sagging poles or report of electricity burns made to the defendant's company before or after the fallen poles and conductors, respectively. 2 photos of cut trees and broken electricity poles were collectively admitted in evidence as Dexh 1.

During cross-examination, DW1 testified that he arrived at the site at 8:30 a.m. and did not see anyone at the scene. He stated that he called the control centre in Kampala to have the electricity switched off. DW1 also claimed that in one of the photos admitted as Dexh 2, his motor vehicle could be seen. However, upon the court's examination of the photos, none of the two photos showed DW1's vehicle.

In his submissions on issue one, counsel for the plaintiff referred this court to the case of *Donogue v. Stevenson [1932] AC 562* for the key ingredients of negligence, to wit; the defendant owed the plaintiff a duty of care, the defendant breached that duty, and that the plaintiff suffered a loss as a result of the breach of that duty.

On whether the defendant company owed the duty of care to the plaintiff, counsel for the plaintiff argued that under section 67 of the Electricity Act, the defendant company had a duty to repair and maintain its electricity power lines. Counsel also referred this court to the case of *Ntebekaine & Another v. Umeme Ltd HCCS No. 258 of 2017* where the defendant company was held to have failed in its statutory duty as the licensee to maintain, repair and improve the electricity supply line that ran over the 1st plaintiff's property.

Counsel for the plaintiff also argued that besides its statutory duty to maintain the power lines, the defendant company had a legal and general duty of reasonable care to avert any foreseeable and more probable risk of injury to the plaintiff or any other person.

Counsel for the plaintiff also argued that the pictures tendered in by DW1 and marked as Dexh 1 could not be relied upon because they did not indicate the date when they were taken or whether they were taken from the scene where the plaintiff was electrocuted. Counsel also argued that no police report was presented stating that there were trees which caused the falling of the electricity poles.

On whether the defendant company breached its duty of care, counsel for the respondent submitted that the defendant company had failed to inspect, repair, replace or maintain the rotten electricity poles which subsequently fell on the footpath and caused severe injuries to the plaintiff.

On whether the plaintiff suffered loss, counsel for the plaintiff submitted that the plaintiff witnesses had led cogent evidence to prove that the plaintiff had been electrocuted and as a result, her 3 fingers had been amputated and her left hand permanently disfigured. Counsel for the plaintiff further argued that both PW1, PW2 and PW5 had testified that the plaintiff was traumatized and was no longer able to do house chores, fetch water or even wash her clothes like she used to before the incident.

On the other hand, the counsel for the defendant argued that negligence was a question of fact, and it depends on the circumstances of each case and that the standard of care expected is that of a reasonable person. Counsel for the defendant company also argued that the breach of duty is proved by adducing evidence of unreasonable conduct considering foreseeable risks. Counsel referred this court to the case of *Male Charles v. Ntulume Ahmed HCCS No. 416 of 2016.*

Counsel for the defendant company argued that the principles determining whether or not the duty of care exists include foreseeability, of harm, proximity of the relationship and reasonableness of imposing such a duty. Counsel cited the case of *Caparo Industries PLC v. Dickman [1990] AC 605.* Counsel for the defendant company submitted that for a claim of negligence to stand, the questions of foreseeability, proximity, and reasonableness of the imposition of the duty must all be answered in the affirmative.

Counsel argued that the plaintiff's case is based on the allegations of rotten electricity poles which was never brought to the attention of the defendant. Counsel argued that PW1 testified to have seen the rotten electricity poles but never brought it to the attention of the defendant company and so is PW3 Abigaba Richard who testified to have seen the electricity poles falling. Counsel argued that although PW3 and PW4 testified to have seen the electricity poles falling, they did not tell the court where they were at the time the plaintiff came into contact with the live wires. Counsel argued that the plaintiff bore the burden to prove the existence of rotten poles and that the defendant company failed to replace the rotten poles with new ones.

Counsel for the defendant company submitted that Dexh 1, the pictures of the scene after the electricity poles had fallen, showed that the cause of the fall of the electricity poles was other trees which were cut by third parties.

Counsel argued that the plaintiff's witness testimonies were materially inconsistent. Counsel argued the plaintiff did not explain how it was only her fingers that got injured yet all the body came into contact with the electricity wires. Counsel also wondered how PW2, the mother of the plaintiff, who was walking with her could not warn her of the danger of the fallen electricity wires.

Counsel also argued that the time within which the defendant came into contact with the electricity wires was short and therefore no reasonable man would anticipate any danger or injury in the circumstances. It was the argument of counsel for the defendant company that the defendant company could not be faulted for not taking any steps to avert the accident since DW1 testified to have communicated to the control Centre to switch off the power immediately after he reached the scene.

As to whether the defendant company was negligent, counsel for the defendant company argued that there were contradicting versions of the cause of the falling of the electricity poles. It is the argument of counsel that whereas PW3 testified that the falling of the poles was due to strong wind, DW2 testified that the poles fell due to the cutting of the nearby trees, as shown by Dexh 1 and therefore no negligence should be visited on the defendant company.

As to whether the plaintiff suffered damages, counsel for the defendant submitted that both Pexh 1 and Pexh 2 carry no evidential value; and that Pexh 1 was not well explained by competent witnesses. Counsel referred this court to the case of *R v. Silverlock [1894] 2 Q. B. 766* to argue that unless his or her attendance is waived by the opposing party, the expert witnesses must be subjected to cross-examination. Counsel invited the court not to give credence to Pexh 1 since no expert witnesses were presented to explain its contents.

In the alternative, counsel for the defendant also argued that Pexh 1 indicated that the cause of injury to the plaintiff was "a blunt object" not electrocution, which is an indication that the defendant company was not liable to the injuries she suffered.

#### **Court's Analysis of Issue 1**

The tort of negligence is actionable at the insistence of the person suffering an injury as a consequence of the breach of duty of care owed to that person. In the case of *Atto Filder v. Waibi Elijah & Another HCCS No. 26 of 2013*, the court while quoting the *Black's Law Dictionary 11th Edition 2019* defined negligence as:

> *"The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights; the doing of what a reasonable and prudent person would not do under the particular* ## *circumstances, or the failure to do what such a person would do under the circumstances"*

The case of *Donoghue v. Stevenson (supra)* sets out key ingredients of the tort of negligence, to wit;

- i. The defendant owed to the plaintiff a duty of care - ii. The defendant breached that duty of care - iii. The plaintiff suffered damages as the result of the defendant's breach of duty of care *(Also see: H. Kateralwire v. Paul Lwanga [1989-90] HCB 56).*

For an action of negligence to be sustained, the foregoing ingredients have to be proved to the balance of probabilities. The defendant company will be liable for negligence if each of the ingredients is tested against the evidence on record and is answered in the affirmative.

### **Duty of Care**

As to whether the defendant owes the duty of care to the plaintiff, it is not in dispute that the defendant company is one of the authorized licensees to distribute electricity in Uganda, particularly in the area where the cause of action in the instant suit arose. It was also the testimony of DW1, the defendant's Technical Officer attached to Fort Portal/Katooke Rugombe Area that the defendant company is mandated to *"generate, transmit, distribute, sell, license, and control activities in the electricity sector, provide for plant and equipment and for matters relating to safety of electricity distribution within the country."* (emphasis added)

In the case of *Donoghue v. Stevenson (supra),* Lord Atkin introduced the "neighbour principle," which is to the effect that individuals owe a duty of care to those who could reasonably foreseeably be affected by their actions. A duty of care arises when there is a legal obligation to act with caution towards others, especially when their safety or well-being may be impacted by one's actions or omissions.

Counsel for the defendant relied on the *Caparo case*, in arguing that the plaintiff must meet the threefold test for imposing a duty of care: foreseeability of harm, the proximity of the relationship, and whether it is fair, just, and reasonable to impose such a duty. I take note of the fact that the *Caparo case* deals with pure economic loss where issues that were under consideration are different from cases involving personal injuries, such as the instant one.

In the succeeding case of *Coulthard v. Neville Russell [1998] 1 BCLC 143*, the HOL held that negligence was an area of law which is developing pragmatically and incrementally in which the legal result should be sensitive to the facts**.**

For instance, in the case of *White v. Jones [1995] 2 AC 207*, a solicitor was instructed by a father to amend his will to include his two daughters. Due to the solicitor's delay, the father died before the amendments were made, and the daughters lost their intended inheritance. The daughters sued the solicitor for negligence. The HOL imposed a duty of care on the solicitor, despite the absence of a direct contractual relationship between the solicitor and the daughters.

On the test of reasonable foreseeability, I take cognizance of the fact that the defendant company deals in the distribution of electricity which

involves potentially hazardous materials and systems, and the company is expected to take reasonable steps to ensure the safety of individuals who may come into contact with its infrastructure, such as power lines, transformers, and electrical installations. For instance, it is reasonably foreseeable that fallen power lines could pose a significant risk of electrocution.

In the case of *Serubiri Angelo (suing through his next friend Mike Katende) v. Umeme Ltd HCCS 469 of 2017*, where the plaintiff was electrocuted by a live electricity transmission wire which was hanging loose on an electricity pole that had fallen, the court held that the defendant company owed a duty of care to the plaintiff. In that case, the court reasoned that:

> *"The Defendant being a distributor of electricity was aware of the risk associated with live electricity distribution wire. The defendant was reasonably expected to foresee that if it did something or failed to do something thereby causing its live electricity distribution wire to become loose, it would get into contact with any member of the public, such as the plaintiff, thereby injuring him"*

It is therefore the finding of this court that the instant case meets the reasonable foreseeability test.

The test of proximity of a relationship has been interpreted differently to include geography, time, the relationship between parties, and causal proximity. In the instant case, the proximity in the issue is causal, and I find it an incontestable fact that a fallen power line which remains live can cause electrocution of anyone who comes in contact with it, however, slight the contact is. The 2nd test is therefore met.

The third test of whether it is fair, just, and reasonable to impose such a duty, has been applied with the understanding that not every foreseeable harm should lead to liability. This third test is applied on a case-by-case basis and acts as a policy control mechanism, allowing courts to prevent the imposition of liability where doing so would have negative social or economic consequences, or where it would be inconsistent with established legal principles, such as the floodgates principle.

No doubt that live electricity distribution wires are a danger to the public. In the circumstances, given the nature of the business of the defendant company, I find that there is no higher policy consideration than that of ensuring that the defendant company keeps the public from the dangers of live electricity wires which remain hanging loose whenever electricity poles fall. Therefore, it is fair, just, and reasonable to impose such a duty of care on the defendant company.

Resultantly, I find that the defendant company owes a duty of care to the defendant.

#### **Breach of the Duty of Care**

In her plaint, the plaintiff particularized the defendant company's negligent acts as follows:

(i) Failure to properly maintain, supervise, inspect and replace its rotten electricity pole.

- (ii) Failure to promptly disconnect the electricity after the pole and wires fell in a public place. - (iii) Failure to put or install warning signs that there were live wires on the said footpath where the electricity pole had fallen to the ground. - (iv) Failure to use suitable electricity poles - (v) Generally conducting its business without due regard to the safety of the plaintiff.

The plaintiff's witnesses testified that the poles carrying live electricity wires were rotten, which caused them to fall. A photograph of three fallen poles, appearing rotten at the base, and another of a standing pole similarly rotten at the base, were tendered into evidence by PW1 and admitted as Pexh 3. PW3 testified that he witnessed the poles, along with the live wires, fall due to strong winds and had previously noticed the poles were rotten. To support the plaintiff's case, counsel for the plaintiff argued that the defendant company breached its duty of care by failing to inspect and replace the rotten poles.

On the other hand, DW1 tendered in photos which were admitted in evidence as Dexh 1. One of the photos shows what appears to be eucalyptus trees lying on top of electricity wires. It was the argument of counsel for the defendant that the electricity poles fell together with live wires because of the acts of third parties who cut the nearby eucalyptus trees.

I find that the plaintiff has not proved to the satisfaction of the court that the electricity poles fell because they were rotten. This is because Pexh 3 shows 3 electricity poles lying very close to each other, thus hard to ascertain whether these photos were taken from the scene of the accident. Another photo under Pexh 3 shows an electricity pole standing. Therefore, this court is unable to ascertain whether these photos were taken from the scene of the accident.

It is also immaterial the electricity poles with live electricity wires fell due to the acts of third parties. this is because the defendant company owed the duty of care to the plaintiff even after the electricity poles carrying live electricity wires had fallen.

It was the testimony of DW1, the defendant company's Technical Officer that he received a call from the Operations Manager that broken electricity poles and conductors at Nyakatooke and he arrived at the scene at approximately 8:30 am on 16th August 2021. He further testified that when he arrived at the scene, he discovered that indeed the electricity poles had fallen and went ahead to isolate the lines after which he called the overhead team to recover the broken poles and conductors.

From the testimony of DW1, when the technical Officer of the defendant company reached the scene, the electricity poles carrying live electricity wires had fallen. There was already a risk on the ground which had been identified by the defendant company technical employee, who, at every minimum, ought to have taken timely corrective action to prevent potential harm of live electricity wires near the ground. Although DW1 stated that he left the scene after isolating the LV line, during crossexamination, he stated that he called the control centre in Kampala to "switch off the power."

After establishing that live electricity lines had fallen, the defendant technical officer was supposed to immediately disconnect the power source or condone off the affected area to ensure that people or animals were away from the danger zone until the powerlines were isolated as well as provide adequate warnings and safety instructions to the public. From DW1 testimony, it's hard to tell whether the defendant's technical officer conducted any of these measures within a reasonable time.

Although DW1 stated that he called the control centre in Kampala to switch off the power source, he did not tell the court what time the power was switched off or what time the overhead team reached the scene to recover broken materials.

The plaintiff witnesses led cogent evidence to show that the electrocution of the plaintiff took place at 9: 00am or thereafter. This was after the defendant company had been notified about the fallen power lines and when one of its technical officers, DW1, had reached the scene.

In the premises, it is the finding of this court that the defendant company breached its duty of care by failing to immediately isolate the live electricity wires well aware of the danger such live wires posed to the plaintiff or any bypasser. The defendant company had a cardinal duty of care to ensure the safety of its infrastructure and to take immediate action when it came to its attention that its electricity poles carrying live wires at Kinyerere Trading Centre had fallen. This duty was breached.

# **The plaintiff suffered damages as the result of the defendant's breach of duty of care**

PW2, the mother of the plaintiff testified that the plaintiff was walking ahead of her when she came into contact with the live electricity wires belonging to the defendant's company and that she witnessed the electrocution of the plaintiff who immediately fell on the ground. She immediately made an alarm, which was responded to by PW1, PW3 and PW4. These witnesses also testified that when they reached the scene, they found the plaintiff lying on the ground close to the electricity live wires and according to PW3, he used a piece of dry wood to push the plaintiff off.

It was the testimony of PW1 that immediately after the plaintiff was electrocuted, they took her to the nearby clinic for First Aid and then to Kyenjojo Hospital where she had her two fingers amputated. She was later referred to Fort Portal Regional Referral Hospital for better management which also amputated the 3rd finger of her left hand. The photos of her amputated fingers were admitted in evidence as part of Pexh 3. The court was also able to see the plaintiff physically and her 3 left-hand fingers had indeed been amputated.

The police medical form, PF3, which is dated 21st September 2021, was admitted in evidence as Pexh 1. It states that the plaintiff reported to have been burnt by electricity and had sustained burns on the left hand. Pexh 1 further states that the plaintiff was in pain, and her 3 fingers had been amputated. The Fort Portal Regional Referral Hospital discharge form which was admitted in evidence as Pexh 2 also states that the plaintiff was discharged on the 17th of September 2021. At the time of her discharge, she had a septic left-hand wound, disarticulated bones and amputated digits.

Counsel for the defendant company argued that Pexh 1 does not carry any evidential value because no medical expert came to court to give further explanation on it. Counsel for the defendant company also argued that if even Pexh 1 was to be relied upon, the possible cause of the injuries suffered by the plaintiff, according to Pexh 1, is a blunt object ruling out the possibility of electrocution.

Contrary to the argument of counsel for the defendant company, it is trite law that no particular number of witnesses is required in any case to the proof of any fact **(see: section 133 of the Evidence Act).**

Additionally, counsel did not object to the admission of Pexh 1. Beyond Pexh1, there is sufficient corroborated evidence on record to show that the plaintiff sustained injuries due to electrocution. This evidence includes the plaintiff's own testimony, the testimony of PW2, who was walking behind the plaintiff on the morning of 16th August 2021, and the testimonies of PW1, PW3, and PW4, who came to her aid immediately after the electrocution. This, together with Pexh 2, the patient discharge form from Fort Portal Regional Referral Hospital, supports the plaintiff's claim that the injuries suffered were a result of the defendant's company's breach of duty.

Although Pexh 1 states that the possible medical cause of the plaintiff's injuries was a blunt object, her medical history in the same exhibit, under medical history, indicates that she reported being burned by electricity. I also note that the plaintiff was examined on Pexh 1 on 21st September, more than one month after the electrocution occurred. Therefore, Pexh 3 does not negate the claim by the plaintiff.

Overall, there is sufficient evidence to prove, on the balance of probabilities, that the injuries sustained by the plaintiff were caused by electrocution resulting from the negligent actions of the defendant company. Accordingly, issue 1 is answered in the affirmative.

## **Issue 2: Whether the plaintiff was contributorily negligent for the injuries she suffered.**

In arguing issue 2, counsel for the plaintiff argued that the defendant has the burden of proof that the plaintiff is contributorily negligent. Counsel referred this court to the case of *Daniele Orere Ntebekaine & Another v. Umeme Limited HCCS NO. 258 of 2012*.

Counsel for the plaintiff also argued that the defence of contributory negligence does not apply to children since negligence is a state of mind and children have no sufficient mind to judge as quickly as adults. Counsel referred this court to the case of *Sambaga (suing through his next friends, Patrick Sambaga and Janepher Sambaga v. National Housing and Construction Corporation HCCS No. 53 of 2016*.

Counsel for the plaintiff also argued that given that the plaintiff was merely 12 years old at the time she was electrocuted, then one cannot impute any form of contributory negligence on her part.

On the other hand, counsel for the defendant company submitted that the plaintiff was well aware of the effects of getting into contact with live electricity wires. Counsel also argued that PW2, the mother of the defendant was walking behind her, and she should have alerted her and that PW3, Abigaba Robert, who saw the electricity poles falling could have saved the plaintiff but chose to run away.

Counsel for the defendant company argued that a person is guilty of contributory negligence if he ought to reasonably have foreseen that if he did not act as a reasonably prudent man, he might hurt himself and he must take into account that others may be careless. Counsel referred # this court to the case of *George Paul Emenyu & Another v. Attorney General [1994] KALR 109.*

Counsel for the defendant company also argued that in much as an infant cannot be negligent, a minor of tender years may be able to exercise a sense of judgement and thus be liable for contributory negligence.

Counsel for the defendant company submitted that the plaintiff, a 12 year-old girl, must have been careless at the expense of her own safety and so were PW2 and PW3 who were present when the incident occurred.

### **Court's Analysis of Issue 2**

Contributory negligence is a legal defence in tort law where the defendant argues that the plaintiff is partly responsible for the harm or injury they suffered. If it is proved that the plaintiff's own lack of reasonable care or fault contributed to the occurrence of the accident or injury, then his ability to recover damages may be reduced or completely barred. The degree of the plaintiff's contribution to the harm is assessed based on the facts of the case.

In *Sambaga case (supra),* court held that:

*"Contributory negligence is negligence in not avoiding the consequences arising from the defendant's negligence, when the plaintiff has means and opportunity to do so. In fact, it is the non-exercise by the plaintiff of such ordinary care, diligence, and skill, as*

# *would have avoided the consequences of the defendant's negligence."*

To successfully establish the defence of contributory negligence, the defendant must prove that: (a) the risk was foreseeable, meaning the person knew or should have known about it; (b) the risk was significant; and (c) a reasonable person in the same position would have taken precautions. In assessing whether a reasonable person would have taken such precautions, the court considers factors like: (i) the probability of harm if care is not taken, (ii) the potential seriousness of the harm, (iii) the burden of taking precautions, and (iv) the social utility of the activity creating the risk *(See: Acaye Richard v. Saracen (Uganda) Limited & 2 Others HCCS No. 63 of 2011).*

The issue of contributory negligence among children was discussed in Sambaga case. In that case, the plaintiff, who was 13 to 14 years old, was riding a bicycle near the excavation site belonging to the defendant, he then slipped and fell into it and suffered severe injuries. In finding that the plaintiff was contributorily negligent, the court reasoned that the bicycle brakes were not functioning properly, and the plaintiff could easily apply his mind and could appreciate the nature of the road being bumpy and thus not good for bicycle riding and had gone against his mother's advice of not riding beyond their gate.

The court, however, observed that:

*"The doctrine of contributory negligence does not always apply to children. It is no defence to say that the child itself was negligent, for, negligence is a state of mind and children have not sufficient mind to judge* *quickly as an adult. The rule of contributory negligence will, therefore, not inflexibly apply in cases where the young children are concerned. The rule is more difficult to make out in case of a child than in the case of an adult. When the plaintiff is a child, allowance must be made for his inexperience and infirmity of judgment. The category of the minor will be a major factor in applying the principle of contributory negligence. An infant cannot be negligent but a minor of tender years may be able to exercise a sense of judgment and thus be liable for contributory negligence"*

In the instant case, the plaintiff was 12 years old at the time of the incident. It was the testimony of the plaintiff, PW1 and PW2, that on their way to collect elephant grass, the electricity poles had not yet fallen. On their return, the plaintiff was walking in front of her mother, PW2, while carrying elephant grass on her head, and then came into contact with the live electricity wires. The father of the plaintiff also told the court that although there was electricity in his village, he had no electricity at his home.

I note that the plaintiff herein was 12 years old. Before her electrocution, she had used the footpath which was devoid of any danger. On her return home, while carrying elephant grass on her head, she bumped into live electricity wires which electrocuted her. Although she was walking on the common footpath, the area was slightly bushy and am inclined to believe that with her age, exposure, sense of judgement, and the fact that she was carrying elephant grass on her head, she could not have seen the live wires from a distance, let alone avert the electrocution

by not avoiding getting into contact with the live wires. Therefore, I am unable to impute any form of contributory negligence on the plaintiff.

On whether her mother, PW2, could have averted the situation, I note that the area was bushy, and she was walking behind her daughter, the plaintiff, and they had used the footpath when the electricity poles were still standing. She could not have foreseen the risk ahead to restrain her daughter from getting into contact with the live wires.

With due respect to counsel for the defendant company, the defendant company cannot raise a defence of contributory negligence based on the omissions of PW3 who testified that he saw the electricity poles falling. Never mind, that, unlike the defendant company, it was not PW 3's responsibility to condone off the danger zone until live wires were isolated.

In the circumstances, issue 2 is found in negative.

### **Issue 3: What remedies are available to the parties**

The plaintiff, in her plaint, prayed for several remedies including special damages at a rate of 25% per annum, general damages at a rate of 20% per annum, exemplary damages and costs of the suit. In his submissions, counsel for the plaintiff abandoned the prayer of exemplary damages.

On the prayer of special damages, counsel for the plaintiff argued that the plaintiff had incurred UGX. 15,485,000/= in medical and related expenses such as meals and transport to medical facilities she attended. However, the plaintiff the only evidence of these expenses available is Pexh 4, which is indicated only 25,000/=. It was the testimony of PW1 and PW2 that other receipts were in the bag which had been stolen.

Counsel for the plaintiff argued that not all cases require documentary proof for special damages, and therefore strict proof for special damages does not necessarily mean documentary proof.

On the prayer of general damages, counsel for the plaintiff argued that general damages are awarded at the discretion of the court and proposed a sum of UGX. 500,000,000/= to be awarded to the plaintiff as general damages.

On the issue of costs, counsel argued that costs follow the event and therefore the court should be pleased to award the costs to the plaintiff.

On the other hand, counsel for the defendant company argued that the defendant company was not at fault for the injuries suffered by the plaintiff. Counsel for the defendant company also argued that even if the defendant company was at fault, the plaintiff had continued her education, and she was able to write using her dominant right hand, the amputation was very successful, and thus she was living a normal life.

It was the argument of counsel for the defendant company that the plaintiff's case does not warrant the award of general damages.

On the prayer of special damages, counsel for the defendant company submitted that although the plaintiff had indicated that she incurred UGX. 15,468,000/=, there was no proof to that effect. Counsel argued that the claim was merely speculative.

## **Court's Analysis of Issue 3**

The plaintiff claimed UGX. 15,486,000/= in special damages disaggregated as follows:

| 6. | - | |-----------------------------------------------|--------------------| | Medical expenses and still continuing | UGX. 15,000,000/=. | | 5.<br>Feeding<br>the plaintiff for 7 days | -<br>UGX. 84,000/= | | 4. | - | | Costs of medical tests and treatment | UGX. 150,000/= | | 3. | - | | Transport to Buhinga Hospital | UGX. 50,000/= | | 2.<br>Transport<br>to Kyenjojo Hospital | -<br>UGX. 50,000/= | | 1. | - | | First Aid treatment at Rugombe Medical Centre | UGX. 50,000/= |

#### **Total UGX. 15,486,000/=**

The plaintiff however did not lead evidence of the receipts. Both PW1 and PW2 stated that they lost the receipts.

Special damages are those damages that relate to past loss calculable at the date of trial and encompass past expenses and loss of earnings which arise out of special circumstances of a particular case *(see: Mugabi John v. Attorney General C. S No. 133 of 2002)*

In the case of *Nasif Mujib & Another v. Attorney General HCCS 160* of 2014, Hon Justice Ssekaana Musa while quoting the case of *Lydia Mugambe v. Kayita James & Another v HCCS No. 339 of 2020* held that:

> *"Proof (of) special damages must be comprehensive and credible; and it must incorporate all the relevant conditions required in proof of special damages. Where various items are claimed under special damages, the plaintiff is entitled to be awarded any of the items which he could prove with sufficient evidence, even if he is not able to prove other or all the items."*

Nonetheless, courts have held that the proof of special damages needs not necessarily be documentary or physical in nature as long as there is sufficient proof of the loss sustained which is either a direct consequence of the defendant's action or omission or such a consequence as a reasonable man would have contemplated. Such proof would suffice in place of physical or documentary evidence *(See: Mugabi John v. Attorney General HCCS No. 133 of 2002).*

Using the foregoing reasoning, the court in the case of *Nankabirwa v. Umeme Limited HCCS No. 310 of 2016* awarded special damages of UGX. 145,777,400/= to the plaintiff due to losses occasioned by the defendant company even though there was no documentary evidence. The court, however, based its decision on the loss assessment report which had been admitted in evidence.

In the instant case, the plaintiff particularized her claim for special damages but fell short of producing documentary evidence to prove that the expenses so claimed were incurred.

I note that the expenses so claimed are linked to the medical procedure that the plaintiff went through as a result of the injuries occasioned by the negligent acts of the defendant company. Some of the items such as transport and meals may have not been receipted. PW1 and PW2 testified that the bag in which the receipts were was stolen. Both Kyenjojo and Fort Portal Referral Hospitals are government hospitals, and it is hard to tell whether the plaintiff paid for the amputation of her fingers, or it was done for free. I am therefore not convinced that the plaintiff incurred all the expenses to the tune of the amount that she claims.

In the circumstances, I am constrained not to award the plaintiff all the special damages as claimed. Resultantly, I award the plaintiff special damages of UGX. 384,000/= as what is contemplatable based on the particulars of special damages, as set out in the plaint under items 1-5.

On the issue of general damages, it is trite that general damages are awarded at the discretion of the court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred (*See: Hadley v. Baxendale (1894) 9 Exch 341 and Maruri Venkata Bhaskar Reddy And Others v. Bank Of India (Uganda) Ltd HCCS No. 804 Of 2014*)

In the instant case, the plaintiff lost her 3 fingers of the left hand. It was the evidence of both PW1 and PW2, her father and mother, respectively, that the plaintiff, is unable to continue doing house chores, and that her state of being has led to her mental anguish and loss of self-esteem. Although the plaintiff has continued schooling, the injury has affected her regular attendance.

Counsel for the defendant company argued that the situation that the plaintiff is in does not warrant the award of general damages because she can continue performing the functions of a normal human being using her right hand.

In the case of *Serubiri Angelo (suing through his next friend Mike Katende) v. Umeme Limited (Supra), the c*ourt awarded general damages to UGX. 500,000,000/= to the plaintiff who had been electrocuted and whose dominant arm had been amputated as a result of the injuries suffered.

In the instant case, the plaintiff pleaded that she had suffered mental anguish as a result of the amputation of her fingers, she had lost selfesteem, and her school attendance had been affected by the injuries she suffered. She has equally lost her self-esteem, and she can not do some of the house chores she used to do before the incident.

It is thus my considered view that an award of UGX. 200,000,000/= in general damages is appropriate in the circumstances.

On the issue of interest, this court has the discretion to award *"interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit" (See: section 26(2) of the Civil Procedure Act).*

Therefore, interest on special and general damages is awarded to the plaintiff at the court rate from the date of this judgement until payment in full.

Regarding costs, it is trite that costs follow the event unless for some reason court directs otherwise *(see: Section 27(2) of the Civil Procedure Act)*. In the instant case, I find no reason to deny the plaintiff the costs of this suit costs. The costs of the suit are therefore awarded to the plaintiff.

Resultantly, judgement is entered for the plaintiff in the following terms:

- (i) The defendant company shall pay the plaintiff special damages of UGX. 384,000/= (Uganda shillings three hundred and eightyfour thousand only) as special damages. - (ii) The defendant company shall pay the plaintiff UGX. 200,000,000/= (Uganda shillings two hundred million only) as general damages. - (iii) The defendant company shall pay interest on special and general damages at the court rate from the date of this judgement until payment in full. - (iv) The defendant company shall pay the costs of the suit to the plaintiff.

It is so ordered.

Dated at Fort Portal this 30th day of September 2024.

**Vincent Emmy Mugabo Judge**