[1993] UGHCCD 16

| | THE REPUBLIC OF UGANDA | | |----------------------------|----------------------------------------|--| | | IN THE HIGH COURT OF UGANDA AT KAMPALA | | | | CIVIL SUIT NO 517 OF 1991 | | | | | | | YOSEPH LUBEGA & OTHERS | PLAINTIFFS | | | | V ER S U S | | | INTERNATIONAL VENTURES LTD | DEFENDANT | |

BEFORE: HONOURABLE JUSTICE I. MUKANZA

## JUDGMENT

The plaintiffs in this case brought an action against the defendant a limited liability campany incorporated and carrying pn the plaintiffs sustained injuries. business in Uganda for general and special damages arising out of a motor accident involving their vehicle UXE 872 and UPI 066 in which

According to the plaint on or about the 26th day of may 1991 a t registration number UXE 872 sustained serious injuries when the said motor vehicle collided with the defendants landrover No UFI 066 at 7 miles Masaka - Kampala road by reason of negligence of one Ibingira the defendants driver/servnnt/agent who vehicle in the course of his duties. or about midday the plaintiffs who were passengers in Foaugot was driving the motor

The plaintiffs averred that the said accident was caused solely of the defendant driver/servant/agent and holds the defendant vicariously liable thereof. by the negligence

The plaintiffs gave the particulars of negligence and averred that the defendants said driver/servant/agent to maintain and keep the motor vehicle No UPI 066 in good repair in ^a road worth condition as required by section 11^(1) *of* the Traffic and Road safety Act 1970 and that cause contributed to the said accident and alternatively but without prejudice to the foregoing pleas the plaintiffs pleaded that and will at the trial rely on the doctrine was negligent in failing

for pain and sufferings loss of amenities of life and loss of damages earnings/special damages. And that the plaintiff claim from the defendant is genfexal-

In their written statement of defence the defendant admitted that on the date and at the place alleged in the plaint an accident occurred involving the defendants motor vehicle No **UXE** 372 but denies the said accident was caused by the negligence of the defendants **servant** or agent. In particulars iu was denied that Mr, Grace Ibingira was at any material times driving the defendants motor vehicle or tha^ the matter alleged in para 3 2nd 4 of the riant in that the plaintiffs ) vehicle collided with the defendants landrover and the accident was caused solely by the negligence of the defendant said driver/servant/agejit and holds the defendants vicariously liable therefore.

> And in the alternative the defendant averred that the said matters were wholly caused by the negligence of the- servant or agent 0\$ the o?/ner of the or.id motor vehicle No UXE ⁸⁷² The written Statement of Defence showed the particulars of negligence on the part of the said mo tor vehicle UXE 872 and averred that the defendants servant of agent was involved in the accident which he could not avoid.

> Before the commencement of the hearing of this suit four issues were framed and agreed upon by both sides and they are as follows

- (1) Whether the defendants servant/agent were negligent - was aogligent. (2) Whether the driver of motor vehicle **UXE** 872 - (3) Was the accident ineveitable. - (4) If the defendant is found liable v.'hat is the quantam of damages.

In aa endeavour to establish rheir case two witness v/ere called that was the first and the second plaintiffs. The third plaintiff did it was safe to conclude that .his claim be rules. In the circumstances and it is hereby dismissed dismissed^pursuent to order 19 ru^e 19 of the civil procedure not show up and no reason was given for his absence.

On the other hand three witness gave evidence for the defence

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employed and carried on his business in the market. In his evidence Yoseph Lubega P"J1 testified that he was self

On 26th May 1991 the plaintiffs were travelling in o ear toning to Kampala. On the way they were involved in a motor accident at a place called Mpungwe twelve miles from Masaka, The car in which they were travelling ^p'ot accident with a landrover coming from Kampala.

Before the accident their vehicle was bieng driven on the left hand side. The road was straight the impact was on the right handside^

The driver tried to avoid the incoming vehicle went off the road and went on the left handside. The landrover was coming at a high speed and the samll car was trying to avoid the accident, The landrover The collision took place on the left handside of the road. That was at the edge of the road the car in which drivers side, The vehicle was he was being driven was knocked on the a right had driver. knocked the car and it got dented.

Immediately after the accident he became unconsious, He gained his consciousness when he was in Masaka Hospital and that was four (U) days after the accident. Ho got injuries and broke his ribs

He was also hit by the said vehicle oh the back of his head and has He also fractured one of his legs, He had blood clots in his kidneys and they had to be removed. a scar.

He was hospitalised for ¹¹¹⁴ months and on being discharged he used to attend for treatment as a\* out patient, He still feels pain in the ribs and the legs, After the accident he could not do things he used to do, Ho was redandant, He used to lift things but he could not do that now.

Before the accident he used to earn around 3,000/= shillings per months, He could not secure any employment. He tried to look for one in Kampala.

In cross examination he replied that there was a corner at the place of the accident. travelling at the spee^ His vehicle

of around 40 kiromiters per hour. He could not tell the opeed at which the landrover was travelling but it was moving at high speed. He was seated in the middle, They were 2 passengers in front, They were roughly five passengers and the driver was the sixth, When he first saw the landrover it was about 60 kilometers, The driver inside was knocked and died. He was examined at Mulago by professor Sekambunga and was given some treatment, He told him what had happened to him that he had pains in the said legs. The accident happened on 26th may and was discharged on $\frac{1}{6}$ /6/61 as per the medical report. He stayed longer than that. He was not exaggerating and was not telling lies.

The second plaintiff Paulo Alideki Mulindwa as FW2 testified that on 26/5/91 while on his way to Kampala he got an accident, PW1 and PW2 were approached by a landrover from infront which knocked The landrover was being driven at the right handside. them, The road was divided into lines and the accident happened on the left hand side of the road and their vehicle went offcompletely on the tarmac on the left hand side. He became unconsious after the accident and regained his consiousness when he was in MasakaHospital and that was on the following day. He sustained some injuries as a result of the accident, He sustained a fracture on the right handside on the ribs He also had a chest pain. He never sustained any other injuries, The leg was plasted and had a lot of pain in chest. After being discharged from hospital he continued getting treatment as an outpatient for 2 months. The injuries were completely healed. te do Before the accident he used / some digging which he could not carry on then and whonewer he does some digging he gets chest pain.

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In cross examinating he replied that there were a few passangers in the taxi in which he was travelling. He was scated in front seat on the third seat He was on the same low with PW1 and the driver He could see properly from his seat, There was a cornor at the place where the accident happened, When he first saw the motor vehicle it was 60 metres away. He could not tell the speed at which the

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the Inndrovcr was' travelling but thi-e-r vehi-clo «as dz\*xyen at a lower speed, When he saw the landrover it was on the correct side, wa s wrong side. The accident happened at ¹ . QOp.m. There were no rains at the time of the accident and it was not drissling and the taxi did not swerve in the middle of the road and remained on its correct side. If P'V1 said the l^n-drover was on the wrong side that was not true but the driver of th£ landrover swerved and came on the

## That he was examined by the doctor and told him what had happened to him.

For the defence Grace Ibingira DW1 testified that he is a director in International venture LTD and knew of a motor vehicle registration N: ^TIPI 066.

On 26th May 1991 he going to Mbarara and was involved in an accident. He was driving that vehicle and had other passengers, his driver was sitting in the drivers seat and had two others. His escort and the police and there He was about 9 miles reaching Masaka at Mpungwe and they were about to negotiate And on the opposite side and because it to wards them at a high speed. on his side of the road. That he had to take immediate evasive action to avoid a head on collision. He braked and started to avoid the vehicle which was still on his si.ie •'•hen all over a sudden still moving at a high speed cut a cross the road infrent of hiqj on his right handside trying to head cn his side of the read where he should have been in the first place. He swerved to his left because the road was did not mind going to his side, on the left hand side where he should have been and that was impac ^t happened. was also a passenger. was a long corner there came a vehicle heading straight rained Though it had slightly^the road was ending and the man was travelling in that vehicle from Kampala The man swerved where / the not slipperry the speed of the vehicle was so fast that it was directly a corner,

Their vehicle was moving very slowly so when the taxi knocked the left hand side of his car it went off and crossed the road on He had some muscle pain and went to Kitovu for treatment, hospotalized. But as they were struggling to get out the opposite direction and tragically people lost their lives, Their passengers were "the-victims they found that \*' si*~~* wer■• foui p?.ssengers in. the front seat of the taxi) sequeczed together .vhich made It impossible for the driver to negotiate the corner.

They reported the incident to Masaka police station. The police came after the? had left. He gave hiti time to rest, For him he was qualified driver. The driver hit him at the right side of the vehicle, He had no alternative but His driver was not driving. to switch, on the man's side inorder to save his passengers.

Il cross examination P7/1 replied that If he had remained on his left har ¹ eide the accident might not have happened, He was not the one driving or. the v/rongside. the right hand side exhibited) They was 30 metres infrent of him and visability was clear.-'' . The second witness called by the defence was John Semwaiga DV/2 who testified that in 1\$k-1 he wad driving for DW1, of the .landrover ( Two photographs wer; tendered and It saw the taxi^ He was He was knocked on

## driving motor vehicle Nr UPI *66*

*'* On 25th May 199". ac v?s in the vehicle, They were travelling from Kampala co Mbararn and on the vj-.-y they had an accident, The vehicle was being dri ver. by ;-'1. As they left Mpungwe the vehicle emerged at their side ar.-.-. it we - ; re.in.ii g. at high speed and it was their side. DW1 tried to slow down reduce the speed but vh;, opposite vehicle abruptly saw their vehicle By the time the other tried to avoid them and go tack to his side it was too late and he had already knocked them. Their car ⁵⁰⁴ /ent off the road and fell -'-to tl:: p-antation, their vehicle it remained standing The other vehicle approached them at high speed, They were driving between 50 and bO KPH whereas the other vehicle the taxi was driving at 90 KPH. The taxi uas full of passengers. ditch) on the left land side facing Masaka. After the accident the vehicle rested in th banana plantation. It rested 30 yards from the road to the Banana plantation. The vehicle fame across the road, There was a trench ( a

After -ihe accident they approached the vehicle which had just passengers infrent including the driver. Even behind there '•ncerned about those who ,.../? were passengers but turned and Were were four

The driver died and they were locking for the pas to yelling. cut the door and-get him out. In cross examination DW2 replied that as one faced Masaka the banana plantation was on the right and there were some slopes around. The trench hedge was 30 metres from them. The corner ther were negotiating was curved on the left hand side. There were traffic markings dividing the road into two. The collision , accident occurred on the left half part on the road After taxi had hit their vehicle the latter remained in the road and across the line marked on the toad. The opposite vehicle fell away in the banana plantation, - That he was no longer working for Ibingira. He left him and got a new job.

Whereas No.017 02 Dérective corporal Acidi David as DW3 testified. . " that on the fatal date he was escorting Juingira DN1. At 9.00 A.m they set off for Mbarara with note vehicle No UPI 066. It was raining and they got involved in an accident, There was a corner in that place and the driver on the opposite side was driving on their side and driving at BO KFH He was sitting in the middle seat and could see clearly what was coming infront of him. He saw the car coming and their driver applied the brakes and their driver wild to avoid the project out the taxi went and knocked them on their side. The collision took place in the middle of the road. Their side was closer to the ditch they could not have avoided the accident by going left because there was a ditch.

When cross examined DWS replied that they swerved when the vohiole was just a metre away from Eheir vehicle. It was raining when the accident occurred, Though it was raining they could see a head It was just drizzling. He could see at leen 200 metres a head of him.

After the collision part of the body of the vehicle was on the tarmac and part of it on the grass, As one faces Masaka the vehicle was on the left handside.

The learned counsel are uring for the defendant submitted that according to the evidence of the Isingira this place of the accident the road was curving. There was that and according to the place of $\ldots \ldots / 8$

the accident the road was curving, There was abent and according to DW2 this bent was curving on the left. The taxi corning from the direction of Masaka going towards Kam •. ala. It came approaching Ibingira on the wrong side, It effort to avoid head on collision DW1 swerved to the right and the taxi also swerved to regain its right position. collision occurred and the taxi was pished off -he road to the plantation, DW1 was asked he tried to avoid the accident by swerving cn the right side. That when faced with the agony of the monent one would also do anything to award off the accident. Ibingira in the circumstances was faced with emergency, If he swerved on t?e left would have been very dangereous. was speeding ana in an UXE 372 was

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When asked by what side of the landrover was damaged in the accident Ibingira replied that it was the right hand side, The implication was that he^was in the wrong because in the normal circumstances it would have been his left and not the right- It depends how the collision happened, If he had hit the rear of peaugot or the left handside of the landrover. He believed the to what had happened, He saw no reason whu they could tell lies. That from the evident. of people the other vehicle UXE 872 had three passengers and the fourth person was in the cabin in the circumstances .the driver could not manage to control the vehicle, There was overlodging and the speeding that would consitute evidence of negligence. At the impact the ptaugot was pushed 30 yards away from the road, The force by which the taxi hit the landrover which was stationery shews that the t;xi came -^t very high speed. That the evidence *^l of* the prosecution witneses should be looked at with some suspects Lubega PW1 said after the accident he became unconsious. He from the kidneys but the report did /9 sc . evidence of Dw1, D\*2 and Dw3 consistent as said bloc-1 clots vere rer.iavcd

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PY-t2 s?id that he could ⁿ\* t dig properly but the report did. not **say** so. These people sh-' ul ' be treated with ereme suspicion\* They -re? in fact testifying for their own benefit, There T7or-e -swxt. ijad-ap-aniter witneses whereas DW2 and D"'3 had no interest whether the defendant company pays damages ^r-r not. One was Ibinrira because the owner of the car in which they were travelling died. It has been the practice if ^ne is testifying in one cause to call an independent witness wh~- would give independent evidence. He prayed that their evidence about hew the accident happened be rejected, He submitted that when assessing d-.mages should look at the medical report fcr PV'1 and PW2, In the case cf Lubega of the case had not been dismissed h<\* c~uld net got The learned counsel prayed the c^'irt to dismiss his evidence that he was unconsious. w. ndering why they were suing mere than 30>000/= shs.

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As regards the second plaintiff if the suit was not dismissed he would get about 100,000/= shs.

On the other hand Mr. Mugabi submitted that the defendants be hel; liable and pay damages to the plaintiff. The plaintiffs testified peau'ot and it was being driven on its the rord and that it was the defendants landrover whieh collided with the jenu-ot and the court should accept their version It is pertinent to ask ourselves why did this accident happen in the first place, **It** happened because Mr. Ibingira took the wrong decision, He swerved on the right side instead of the left. If he had swerved on the left he would not have been here because the accident would not have taken place, They accept he might have taken a. decision in the agony of the moment nevertheless if would still be liable. they were passengers in a proper side of being more reasonable and .roper one, one takes a wrong decision he

Then DV/3 testified that there hedge of the tarmac. If Ibingira '5ould have been driving slowly as he claimed to be he would have been ne-'ctinted the corner but did not do so. Again if rhe court was to scrutinise the defence case it was full of contradictions why were they there in the first place for example Mr. I'-in \*ira testified that he swerved on ... ./if was a good three metres from the

the right and that was where the accident occurred, DW2 claimed it was the lefthand side of the road facing Nasaka, DW3 claimed it was in the middle in the road and that was the same accident, Secondly Mr. Ibingira claimed that after the collision the vehicle went off the road side facing Kampala. D=2 claimed it went into a plantation 30 metres away D°3 said it was just on the Murram grass Path on the read. The conclusion was that these witnesses who were not telling the truth infact it was their testimony which is suspect rather than the plaintiff. They just came in support of their boss who might even have paid their allowance to come and give evidence here, That Ibingira said the road was clear and could see very well a head Dw3 said could see a head about 200 metres but DW2 said could only See 20 metres They were only trying to If Mr. Ibingira had been taking a proper lookout on deceive the road he could have avoided the accident. He conteded that Mr. Ibingira was a man of 61 years old may be with a failing eyesight He employed a driver because he could not drive this long distance to Mbarara, when asked why he was driving he replied that he was only assisting the driver, He submitted that he employed the driver because he knew he was incapable of driving. If the ${\tt consistency}$ photofraphs were looked at the damage to the vehicles were with the plaintiffs version how the accident occurred. That Ibingira was driving and he was hit on the right side. If the accident happened as the defence had testified the damage would not have Even been outside the landrover $\angle$ DW3 testified that Ibingira turned to avoid the $\alpha\text{-}cident$ when he was only one metre from the peaugot when there was clear visibility all along the road. He finally submitted that the court finds the defendant liable.

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As for damage for the first plaintiff had raptured 2 ribs and never had any permanent disability according to the authority in Wilkinson the plaintiff ought to be awarded a sum of 100,000/= shs

As regards the 2nd plaintiff he sustained serious injuries resulting into the shortening of the right leg by an inch. That was a permanent diability and according to $\ldots$ $\ldots$ $/11$ million .shillings because the mar will limp for the rest of his life. And prayed that the court awards costs of this suit. I now turn to consider the first issue whether the defendants agents were negligent. ex exuu of 2 " Wilkison cn damages" the man ou»-\*ht t

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the plaintiff, within the scope of the duty, *'* (b) Breach of that duty (c) and consequential damage to B See Winfield on Tort Eight Edition Page *^2* And in Blyth Vs Birminghm water works 18% ¹¹ EX T, Page 78^ do something which a prudent and reasonable man v»ould not do. The concept of duty introduced in Donogue Steven . Son 19% At *\$62* is the neighbour principle according to which a duty is placed upon a person to take reasonable cere to acts or omissions which he can reasonably forsee as likely to injure his neighbour and neighbour in this context means persons s . closely and directly affected by the acts of another that the other ought reasonably to have them in contemplation as being so affected when doing or making the acts Donogue Vs Stevenson Sipra quoted with approaval in Frederick Senyonga Vs Construction Engineer and Builders Pakv/ach Arua Road 1979 HCB Page *2J2* the omission to do something which a reasonable man guided upon the consideration which ordinarily results in damage undesired by the defendant to ingredients Thus its part of A towards B to exercise care in such conduct of as falls a tort is the breach of legal duty regulates the conduct of human affairs would or Negligence was defined as breach and damage as First of all negligence as or ommissions complained of see are (a) A legal duty on the to ^t'-i • v4.re which

In the instant case it is common knowledge that the accident ^a corner. There were accusations and counter accusations as to which of the two vehicles was responsible for ^I the accident which culminated into the death of the taxi driver UXE 872 and the injuries sustained by the plaintiffs PV.'I and PV/2. testified that he swerved on the right hand side in order ⁱ'? DW1 to save his passengers and that the opposite vehicle was at a high speed and driven on his side. /12 happened and that there was

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very high steed md the the accident took at the left hand side of the road. That the driver of the landrover cor-. • was driven at a failed to negotiate a plaintiffs also on the o .her hand the

In the case of .'.drea Sinzumisi Vs Gomba But service CA No 1289 1975 Where cattle Strayed in the road the driver cruised on and held that what a prudent man could have don? in he circumstances quoting with approval Rowlat J in Tart Vs chilt} and co 1931 AER Pages 828 - 829 had this to say. the appellant got injured the court

> u things ond people and animals in the way at any moment and he is bound to go not faster than willpermit his stopping or deflecting his course at any time to avoid any thing he sees after he has seen itif tha^a man drives a motor car along the road he is hound to anticipate that there may be It seems to me

^I am of the view that the above quoted authority is relevant to the instant case in that both drivers of UXE 872 and UPI 066 pught to have driven their vehicles carefully, Each taking into account that they would be ready at any time to avoid the accidents.

Moreover in the same case it was stated that it is well established law the tact that if a motor vehicle turns to the wrong side of the road is not itself negligence but if a vehic-e on the wrongside collided in this respect with ^a oedestrian the driver must explain-

In the instant case the driver of the landrovcr turned on the wrong side inorder to ward off the accident in this case but was not driving on the wrong side all the time an-' though it was a pedestrian who was injured in Zinnirr.isi \* ^s case ^I am of the view that it was relevants whether there was some kxndof negligence- ^I was opportuned to hear the two visions. The def.nee is the matter failed to explain how the positioning of his vehicle was consistent with the exercise of reasonable care on the part of the driver. preferable to that of the plaintiff, The driver of UXE 8?2 the plaintiffs for

Besides that there is authority to the effect that vehicles do not normally collide or hit other vehicles without some

part of the driver \*hen drives at hi.gh negligence on the Catherine Kiwanuka \_Vs\_ AG HGC No 69 of the 1982 unreported.

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In the instant case each side accused each other of bpj ng negligent and responsible for the accident and having driven at -fryery high speed but the unfortunate side of the plaintiffs side was that no police man ever visited the scene of the accident and as such no sketch plan was drawn leave alone filing an accident report- This could have assisted the court in locating the place of the impact and the positioning of the *?* vehicles after the accident and if need be the court would be informed whether any vehicles were in dangerous neclanicla conditions.

In addition the plaintiffs testified that they became unconsious and gained their consiousness when in Hospital where they were being treated, Besides the two plaintiffs there was no -independent evidence to show that either the vehicle overturned or collided wi th another vehicle and therefore the plaintiffs had not proved their case on the balance of probabilities as to whether the accident did occur and if so how it occurred See Kizito Vs Libyan Arab Bank for foreign Trade Development 1982 HCB P 126 at P 127

The counsels had submitted very strongly about the contradictions in tho evidence adduced on both sides, ^I considered all this and ^I was of the view were major ones and hence independent eyewitness to correct these anomalies before the plaintiffs case could be accepted. However those contradictions on the defence case were minor ones and did not lead to deliberate untruthfulness. In the pleadings th.'. plaintiffs averred that ^I was not addressed on this point by the learned counsel appearing for the plaintiff The maximum is not rule of evidence, It possesses no major qualities,*nor* has it any added virtue, other than the brevity merely because it is expressed in latin, when used on behalf of way of saying I submit that the facts and circumstances which I have ... /14 on the doctrine of rc-sipsa loquitor. a plaintiff it is generally a short at the trial they would rely a principle of liability but a that those on the plaintiffs case

proved establish a primefacie case of negligence against the defendant There are certain things that do not normally occur in the absence of negligence and upon proof of these acourt will probably held that there is a case to answer See Hoe Vs Ministry of Health 1954 20B Pages 66, 87 - 88 per parris LJ

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Where the maxim applies therefore it entitles the plaintiff to rely as evidence of negligence upon the mere happening of the accident He need not allege or prove any specific act or omission of the. defendant, If the result which he does prove, of some unspecified ant or omission makes it more probable than that the damages was caused by the negligence of the defendant See clerks and lindsed on Torts 12th Edition P 441

The Secantial of the first that the thing complained of must have been under the control of the defendant or of some, who for whose negligence is responsible, the second ingredient is that the accident must be such as could in the ordinary course of things would have happened without negligence and finally absence of explanation on the part of the defendant, See Embu public Road Services Vs Rumi 1968 EA P 22, Nsiri Mulidani vs Nazzar Bin 1960 EA 20, Barkway

Vs South water Transport Co Ltd 1950 1 All ER R 392.

In the instant case the defendants driver DW1 had $\,$ shown how the accident happened and his explanation is consistent with some kind of negligence on his part and if I am mistakon that he could not explain the accident which is denied the defendant was able to show that there was no lack of reasonable care on his part, So from what has transpired above the first issue is in the negative. The maximnes insughator is not applicable to the instant case.<br>The second issue is whether the driver of motor vehicle TXE 872 was negligent, PW1 and TW2 informed this court that the driver of UPI 066 was driving too first and that the accident happened on their left hand side and from that moment they became unconsious and were hospitalized for sometime and that was when they gained their consiousness. The case for the defence was that the vehicle UXE 872 was thrown 30 metres away from the place of impact and ended up in the banana plantation, There were four ....../1克

proved establish a primefacie case of negligence against the defendant There are certain things that do not normally occur in the absence of negligence and upon proof of these acourt will probably held that there is a case to answer See Hoe Vs Ministry of Health 1954 20B Pages 66, 87 - 88 per morris LJ

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Where the maxim applies therefore it entitles the plaintiff to rely as evidence of negligence upon the mere happening of the accident He need not allege or prove any specific act or omission of the. defendant, If the result which he does prove, of some unspecified ant or omission makes it more probable than that the damages was caused by the neglizence of the defendant See clerks and lindsed on Torts 12th Edition P 441

The Secential of the mass that the thing complained of must have been under the control of the defendant or of some, who for whose negligence is responsible, the second ingredient is that the accident must be such as could in the ordinary course of things would have happened without negligence and finally absence of explanation on the part of the defendant, See Imbu public Road Services Vs Rumi 1968 EA P 22, Msiri Mulidani vs Nazzar Bin 1960 EA 20, Barkway Vs South water Transport Co Ltd 1950 1 All ER R 392.

In the instant case the defendants driver DW1 had shown how in the accident happened and his explanation is consistent with some kind of negligence on his part and if I am mistaken that he could not explain the accident which is denied the defendant was able to show that there was no lack of reasonable care on his part, So from what has transpired above the first issue is in the negative. The maximnes ipso loquitor is not applicable to the instant case.<br>The second issue is whether the driver of motor vehicle TXE 872 was negligent, PW1 and TW2 informed this court that the driver of UPI 066 was driving too first and that the accident happened on their left hand side and from that moment they became unconsious and were

hospitalized for sometime and that was when they gained their consiousness. The case for the defence was that the vehicle UXE 872 was thrown 30 metres away from the place of impact and ended up in the banana plantation, There were four ....../场

gers in the drivers sent and according to the defence that S-red rith the safe negotiating of the said corner as the driver net negotiate the corner. The driver of UXE 8?2 died at the inc they had to get an axe to remove the body from the vehicle ■. order to save the lives of other passengers, The evidence ic uu-nsistent as to what had happened. to m inuopen'c: • witness to corroborate their story as to how the mt happened; In that vein ^I am of the view that the plaintiffs was negligent. The second issue therefore is in the ative. , ."⁷² and ^f'VjS though had some contradictions here and there on other hand The plaintiffs/failed

he third issue was whether the accident was inevitable, **In** idence DW1 testified that he had to swerve his vehicle on the ;nd save his passengers, dressed at all on this issue and in the light of evidence on enc same did not merit c-nsidei ^a tion by the court. **•T** but I have already held that he was to egligent and as such was not/ blame for the accident. ^I was

ie last issue is the quo.-.tv\ of damages, ^I was not assisted ^C C" the vlo-intif ¹ referred mo to Wilkinson ⁵ issue at all by the learned counsels by citing some authorities counsel trued/ appearing

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quantum d- mr.i he submitted that the 1st plaintiff ^I iaptured ribs and never had any permanent injury should be the second plaintiff who had his eg shortened by an inch should be awarded 2 million shillings as thau was a permanent disability. shs 100,"00/= where as

other emitted that ¹ -'¹ and PW2 should he awarded os general damages 100/= and 100,000/= Shs respectively. e learned cow-el appearing for the defendant on the

Sekabuya medically examined Joseph Lubega on 29th March 1993.

The clear. He had no permanent injury. -

The evidence by 201 that he could not lift, things on he used to we was not supported by the doctors findings. Also not supported by medical examination was his testimony that he still felt pain in the ribs and lags.

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In Naumbe Vs Kirembe Minus 1975 HCB Page 152 There the plaintiff mas injured in an accident in which a motor vehicle overturned. He sustained the following injuries, injury to the crust out wound on the dorsum on the left wrist bruising of the left dieg and put mound on the left side of the nose. The most -f the 7th and 8th ribs serious rjuries/the fracture and the resentiff could not resume his employment Shs 10,000/= were awarded as general damages.

Well taking into account the inflation in the country, the inj wies suffered by the 1st plaintiff, If he had proved his claim on a balance of probability an award of shs 200,000/= shillings would have been justifiable in the circumstances.

With regard to the second plaintiff PW2, We sustained a fracture of the leg and also had a chest pain, According to him the 1. as plasted and mad a low of pain in the chest. The The learned counsel appearing for him submitted that an award of shs 2 milition rould meet the ends of justice, where as counsel for the defined it was of the view that he should be availed damages to the tune of she $10^{\circ}$ ,000.

nece tire to the medical report Exp 2 the Mray examination showed a imacture of the lower tibia and fibula. The leg was immoblised prister. He was first, a halgesics for the thin, He made satisfactory progress was discharged, after one and half months. He told the doctor that he went back to his job as fish trader on examination he walked with a slight limp, The right leg was half an inch shorter than the/leg but the fracture was well united. In Nabulya Vs Kalibala 1975 HCB P 386

The plaintiff aged 8 years old sustained a closed fracture of the left femur which resulted in pain at the fracture side and

3\_YiAx>v\*-nittent. heidcbea distances, The doctor u^y suffer pain due to development Oesteothrits, Permanent physical '»ore awarded. d dizziness and unable to walk long testified that the plaintiff still continued capacity was assesced at 10 - 15% Shs 40,000/= as general damages

In the case of Vicent Njuba M.u,-weri Vs Bus service Co ¹IV- /-fuko Waiswa 1972 HCB P ¹ ^3, The plaintiff was a. passenger defendant and driven by the second Bus over turned, Medical report fracture of both bones in leg and the plaintiff necesitated the administration of high doses of sedatives -.nd analgesia, This sort of pain lasted about weeks giving away later to moderate pain, Th^c doctor concluded the ^t the fracture had healed well but there was *r*¹⁵-ht shortening of leg and ugly scar and that pain and limping ^I er^e likely to be permanent. ■ufferred maximum pain that ' ^e ¹ end^a ⁿ ^t wa^s ⁵ n'uri compound shewed / an angular deformity wr en a c.i a bus owned by th- first

The plaintiff was awarded 40,000/- shillings damages, with the 2bove two authorities in mind and taking into account the trend of nfla\*ion in this county which is almost 200 percent, If the plaintiff had proved his case have • rd cd him Shs 300,000/= on a balance of probability I would as general damages.

Otherw. se the case stands dismissed with costs.

3/-.\* a; I. Mukanza P U E

3/12/93 Parties Absent

Mr. Mugabi for the plaintiff present. Mr. Kateera for

the defendant Absent. Judgment is read and signed.

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I. Mukanza \* JUDGE 3/12/93

Mr. Mukertanise from Kalera and Co Advocates Comes in late during delivering of Judgement.

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state in I. Mukanza JUDCE $3/12/1993.$