[2023] UGHC 332

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT MASAKA**

### **CIVIL SUIT NO. 40 OF 2020**

### **1. MBABAZI JESCA**

**2. KWIZERA ALLAN (Suing through MBABAZI JESCA HIS NEXT FRIEND ………………...…………… APPLICANT**

### **VERSUS**

# **THE BOARD OF DIRECTORS KIDS GEAR PRIMARY SCHOOL BUKOMANSIMBI ..….……….. RESPONDENT**

## **JUGDMENT**

*Hon. Lady Justice Victoria N. N. Katamba*

## **BACKGROUND**

The plaintiffs pleaded that on the 16th day of March 2020 in the morning hours, the 2nd Plaintiff, a minor then aged 13 years old and a pupil at the Defendant school was riding a bicycle to school. The Defendant's driver in a van, registration number UAT 953T recklessly knocked the 2nd Plaintiff.

The Plaintiffs further pleaded that the 2nd Plaintiff was permanently incapacitated by the breaking of his pelvic bones and he also sustained other injuries in the arm.

The Plaintiff further claims that the Defendant only supported them partly but later abandoned them. They have incurred medical expenses for which they should be reimbursed and that they should be awarded compensatory damages.

The Defendant did not file a defence. A default Judgment was entered against it and subsequently, the suit proceeded ex parte.

Representation

The Plaintiff was represented by **M/s Med Kaggwa & Co. Advocates**.


# **PLAINTIFF'S SUBMISSIONS**

## **ISSUES:**

# **Whether the Defendant's driver was negligent while driving a school van registration number UAT 953Z**?

The Plaintiffs defined negligence as the omission to do something which a reasonable man guided upon that consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.

The Plaintiffs cited the decision of **Donoghue Vs Stevenson (1932) AC 562** in which the ingredients of negligence were laid down as follows;

- i) The Defendant owed the Plaintiff a duty of care - ii) The Defendant breached that duty resulting in damage on or against the Plaintiff - iii) The Defendant and no other is liable for the breach of duty.

Based on the above ingredient no.1, the Plaintiffs submitted that on the fateful day, the driver of the defendant's motor vehicle was under a duty to take reasonable care for the safety of other users on the road to avoid collusion and accidents.

This duty involves taking a proper look out and all measures to avoid accidents.

The Plaintiffs also cited the case of **Ujara Thomas Vs Mewe Bus Services Ltd HCCS No. 020 of 2016** where court defined negligence but added on page 18 that;

*"The duty to keep a proper lookout means more than just looking straight. It includes awareness of what is happening in one's immediate surrounding. A driver should have a clear a view of the whole road from side to side and in case of a road passing through a built up area, as well as the pavements on the side of the road… court continued that even where an emergency which is predictable turns to be apparent, negligence can be inferred."*


It was submitted for the Plaintiffs that the 2nd Plaintiff was a pupil/student at the defendant's school who was heading to the said school at about 6.30 a.m. The defendant's school van driver was recklessly speeding and without a proper look out, knocked the 2nd Plaintiff who was even ahead of the van as he was heading to the said school. This amounted to reckless driving because this Bukomansimbi area is a trading centre through which motorists ought to drive carefully.

In conclusion, the Plaintiffs submitted that the Defendant's driver was negligent while driving a school van registration number UAT 953T as per the evidence adduced by the pleadings and witness statement of the 1st Plaintiff/ next friend.

#### **Whether the 2 nd Plaintiff's injuries were sustained as a result of the defendant driver's negligent driving?**

The Plaintiffs submitted the preliminary report, clinical notes & diagnosis as attached to the submissions, pleadings / plaint as **Annexture A, B & C** and witness statement all point to the fact that the 2nd Plaintiff was hit by a speeding car as a result of which he sustained double pelvic fracture with displaced segment of the superior putic ranus.

The Plaintiffs also referred this court to the clinical notes attached to the plaint & witness statement and police report made vide Police **TSD/05/16/03/2020.** These documents demonstrate that Motor Vehicle **UAT 953Z** was involved in the accident in which the injuries were sustained.

# **Whether the Defendant is vicariously liable for the actions of her driver and consequences thereof?**

The Plaintiffs submitted that vicarious liability is a common law doctrine sometimes referred to as imputed liability, liability of another person is assigned to an individual or legal entity that did not actually cause the harm or injury complained of.


Vicarious liability is founded in the tort of another even though the person being held responsible may not have done anything wrong in order to hold one liable;

- i) There must be an employment relationship - ii) There must be a wrong doing committed by the employee - iii) The act must have been committed during the course of employment

The Plaintiffs submitted that the facts of this case are uncontroverted and are Res Ipsa Loquitor. The Plaintiffs submitted the accident was caused by the Defendants driver and as such the defendant is liable.

The Plaintiffs cited the case of **Kituma Magala vs The Board of Governors of Makerere College Schools (1994) 1 KALR**, in which it was held inter alia that in cases involving schools the suable entity is the Management committee or Board of Governors/ director, unless owned by a company.

The Plaintiffs concluded that the defendant is vicariously liable for the accident that was caused by its driver.

#### **Whether the Plaintiff is entitled to the remedies sought?**

The Plaintiff prayed for General damages

The Plaintiffs submitted that these are the direct probable consequences of the wrongful act of the Defendant complained of and include damages for pain, suffering, and inconvenience and anticipated future loss.

The Plaintiff referred this court to the authority of **Uganda Commercial Bank Vs Kigozi (2002) 1EA 305.**

The Plaintiff also prayed for Special damages. The Plaintiffs cited the case of **Kampala City Council Vs Nakaye (1972) EA 446 in which it was held** that the principles governing an award of special damages is clear, special damages must be pleaded and proved specifically. That special damages however need not always be proved by production of documentary evidence, cogent verbal evidence can also do.


The Plaintiffs further submitted that the evidence on court record shows that plaintiff paid medical bills both at Kitovu and Ultima, Trauma centre for which some of the receipts are attached and expenses pleaded.

They prayed for Compensatory and punitive damages.

The Plaintiffs prayed for UGX. 140,000,000 for the permanent disability sustained by the 2nd Plaintiff and punitive damages as a deterrent sanction against the Defendant.

The Plaintiffs also prayed for costs of the suit which they stated to follow the event.

## **DETERMINATION BY COURT**.

I have carefully examined the Plaintiff's pleadings, evidence and submissions and below are my findings and reasons for the same.

# **Issue1**; **Whether the Defendant's driver was negligent while driving a school van registration number UAT 953Z**?

The ingredients of negligence were correctly set out in Donoghue cited by the Plaintiff to wit;

- i) The Defendant owed the Plaintiff a duty of care - ii) The Defendant breached that duty resulting in damage on or against the Plaintiff - iii) The Defendant and no other is liable for the breach of duty

On whether the Defendant owed the Plaintiff a duty of care; all drivers of motor vehicles owe other road users a duty of care. The defendant driver out rightly owed the 2nd Plaintiff a duty of care, not to injure him.

On whether the defendant breached that duty resulting in damage against the Plaintiff and whether the defendant is liable for the breach, below are court's findings.

Evidence of the unfortunate events that led to the permanent incapacitation of the 2nd Plaintiff on the morning of 16th March 2020 were adduced in this court on oath through the witness statement of Pw1, Mbabazi Jesca.

This court takes cognizance of the fact that the accident took place in Bukomansimbi town council which is an urban centre. Drivers of motorists are expected to drive not only at slow speeds but


also with great caution in urban centres. This is because urban centres are usually busy with divers human activities including children heading to their respective schools.

According to the authority of Donoghue, cited by the Plaintiff, individuals have a duty not to harm their neighbors. The driver of the defendant's school van registration number UAT 953Z had a duty not to harm other road users. He had a duty to brake, swerve, hoot and take all necessary caution while driving not to knock the 2nd Plaintiff.

The defendant's driver was in control of the school van registration number UAT 953T on 16th March 2020. He failed to manage the van and thus run over the 2nd Plaintiff in a place where he is expected to drive with caution. These facts point to the driver's omission to uphold his duty of care to his neighbor, not to injure him.

On the basis of the foregoing, this court finds that the defendant's driver was negligent while driving motor vehicle registration number UAT 953T which led to fatal injuries that were sustained by the 2nd Plaintiff.

# **Whether the 2nd Plaintiff's injuries sustained as a result of the defendant driver's negligent driving?**

This issue has been resolved in answering the first issue and is answered in the affirmative.

# **Whether the Defendant is vicariously liable for the actions of her driver and consequences thereof?**

Vicarious Liability was defined by *Batema Hon. N. D. A,J in the case of Okupa vs. Attorney General & 13 Ors MC No. 14 of 2005 [2018]UGHCCD 10 to mean " a legal doctrine where a person, himself blameless, is held liable for another person's conduct." Court also stated, "the rule is also justified by reference to the latin maxim, "qui facit per alium facit per se" meaning that he who acts through another acts himself.*

The ingredients for vicarious liability to arise were also highlighted in the same Okupa case supra to be;

There must be a relationship of employer and employee;

The tort must be committed by the employee;

The tort must be committed in the course of business.


On the relationship of employer and employee and the tort having been committed by the employee; this court is entitled to a rebuttable presumption that the driver of the defendant's motor vehicle registration number UAT 953T was hired by the defendant. This court therefore, is inclined to believe that the driver was hired by the Defendant and thus a relationship of employer and employee is established.

On the tort having been committed in the course of business; this court has no doubt that the tort was committed in the course of business because the victim was headed to school on the fateful day. The driver was driving the school van at 6:30am in the morning. This court takes judicial notice that this is a period during which drivers of school vans drive some of their pupils to school. This too creates a strong rebuttable presumption that the driver committed the tort in the course of business.

In a nutshell, this court finds that that the defendant is vicariously liable for actions of the driver of motor vehicle registration number UAT 953T and the consequences thereof.

#### **Whether the Plaintiff is entitled to the remedies sought?**

The plaintiffs prayed for **General damages for inconvenience**. General damages are the direct probable consequences of the wrongful act of the Defendant complained of. See **Uganda**

### **Commercial Bank Vs Kigozi, supra**

The Plaintiff is hereby awarded UGX. 5,000,000/= in general damages.

#### The Plaintiffs prayed for **special damages of UGX. 62,351,000/=**

The rule on special damages is that they must be specifically pleaded and strictly proved.

The Plaintiffs adduced in court to demonstrate medical expenditure towards treatment of the Plaintiff on their witness statement. The sum total of this expenditure is UGX. 7,351,500/= The Plaintiffs are awarded UGX. 7,351,500/= in special damages.

The Plaintiffs also prayed for compensatory damages of UGX. 140,000,000/= These are damages intended to put the Plaintiff in his former position before the wrong complained of. I find the claim of UGX. 140,000,000/= excessive.

I will instead award UGX. 10,000,000/= to the 2nd Plaintiff in compensatory damages.

The Plaintiff also prayed for punitive damages. These are damages awarded in cases where the defendant's acts are oppressive and unconstitutional. They are intended to exert a deterrent force on the defendant not to repeat the wrong complained of.

This being a case of vicarious liability, this court is not persuaded to believe that such an award is appropriate in the circumstances of this case. Moreover, the Plaintiffs testified that the Defendant paid them UGX. 1,800,000/= when it learnt of the unfortunate incident. This is not conduct of an oppressive party.

The Plaintiff is awarded costs of this suit.

In conclusion, Judgement in this matter is hereby entered in favor of the Plaintiff and against the defendant with the orders below;

- 1. The Plaintiffs are awarded UGX. 5,000,000/= in general damages. - 2. The Plaintiffs are awarded UGX. 7,351,500/= in special damages. - 3. The Plaintiffs are awarded UGX. 10,000,000/= in compensatory damages. - 4. The Plaintiffs are also awarded costs of this suit.

I so order.

Dated this 20th day of March, 2023


# **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**