[1997] UGHCCD 2

### THE REPUBLIC OP UGANDA

#### IN THE HIGH COURT OP UGANDA AT KAMPALA

### CIVIL SUIT 80/96

MJKIDAD1 NSUBUGA PI AIN ( IFF

- VERSUS -

**5**

GASO TRANSPORT SERVICES DEPENDANT

### BEFORE THE HONOURABLE LADY JUSTICE C. K. BYAM UG1SH ^A

#### JIDGEMEN ^I

On the 2/th day of November 1995 al about ^I 700 hours al Kalandazi along Ka mpala-Masaka Road an accident involving the plaintiff's motor vehicle registration No. 518 UBA loyola Hi ace mini-bus and the defendant's bus Isuzu by make registration No. 815 UBA acrurred. Therefore the plaintiff brought the proceedings claiming special general and exemplary damages for rhe loss he suffered as a result of the accident. ph four of the calised solely by rhe negligence of the defendant's **lo**driver who was at the material time ling in the ordinary course of his duties as the servant or agent of ^I he defeiuian ¹. ¹ he par titulars of negligence were stared as follows:-\* plaint that the accident was ¹¹ was averred in parag

a The said defend ant's drU ^> servant or agent drove the Isuzu bus .» al excessive speed;

b) He drove the bus in such ^a negligent manner without reasonable care

or without ensuring the safety of other road users;

- c) to avoid the collision. He failed to swerve, brake, stop or control the bus in such a manner - d) including that of the plaintiff. S' He failed to keep a proper look-out for the on coming vehicles - e) He attempted to overtake when it was not safe to do so thereby causing the accident; - f.) and caused the death of the plaintiff driver and other passengers in the plaintiff's vehicle. ^I o He drove the bus without due care and attention to other road users

The plaintiff further averred that the defendant's driver owed a duty of care to the passengers and other road users which he breached. He further averred that the vehicle was damaged beyond repair.

In the written statement of defence, the occurrence of the accident was admitted but it was denied that there was any negligence on the part of the defendant's driver. Instead it was averred that the accident was inevitable in that while the bus was being driven properly along the road, the mini-bus suddenly speedily and negligently emerged from off the Masaka Kampala Road, entered thereon hence the collision. **3-0**

The following were the agreed issues:-

- whether the defendant's agent/driver were negligent. (1) - If so was the accident inevitable. (2) - O.) If not is the plaintiff entitled to the remedies prayed for in the plain t.

(4) Qu antu m.

¹ shall deal with the issues seriatim commencing with the first. The burden lies on the plaintiff to prove that the defendant's driver owed him ^a

duty of care which was breached resulting in the damage complained of. Both counsel in their respective written submission referred to a number of authorities regarding the duty of care owed by a person using the road to use reasonable care to avoid colliding with other road users.

The evidence of how the accident occurred was given by Mugisha Nuwagira $\vec{5}$ (P. W.1) who was one of the passengers in the bus and Rashid Babu (D. W.1) who was the conductor of the bus. P. W.1 testified that on the fateful day, he was seated near the driver who was driving very fast. When the bus reached a place called Kampiringisa, there was a lorry and a trailer. He further told court that as the driver of the bus was overtaking the trailer, a minibus came from the opposite $10$ direction. The bus driver failed to control it and he hit the mini-bus on the right hand side. It was a head-on collision. The exact location where the accident occurred was called Kalandazi.

Under cross-examination the witness stated that he saw the mini-bus when it was 15 5-6 metres in-front of the bus.

The testimony of Rashid Babu (D. W.1) was to the effect that on 27/11/95 he was a conductor in the defendants' minibus. On how the accident occurred, the witness stated that the bus was in the process of overtaking a trailer when he saw a mini-bus coming from a tarmac road on the right, it entered the road at high speed. There was a head on collision and the driver forced the bus off the road 20 and it ended up in the forest. He further stated that the bus was at a slow speed because it was overtaking and it was climbing a slope. It was also his evidence that there was a slight corner so you cannot see the junction.

From the testimony given by these two witnesses it seems the scene of the accident the bus was overtaking a trailer; it was climbing a hill or a slope, there $25$ was a corner near the scene of the accident and a side road leading to Mitala Maria where the mini-bus was coming from. It was a head-on collision. It is the drivers

$\mathfrak{Z}$

$\mathbf{1}$

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who know exactly what happened at that critical moment before the accident happened. Unfortunately none of them testified. When a driver has to meet ^a **. K** sudden emergency, what is required of him is not usually ^a perfect action. He has even if they have the right-pf way.on the main road, but much higher degree of main road; to demonstrate that standard of care which ^a competent driver of a bus or mini- **.. : -V. '>• 7 ' . ^>** *'■* **'.\*** bus.as in the instant case, because some degree of caution is needed by all drivers

Fernandes v. Noranha (1969) EA 506. It is incumbent on him before he enters the main road and stopping altogether where necessary. /■ main road to make sure that it is safe so to do by watching out for vehicles on the (o

**9**

According to counsel this was in contravention of section 135(2) of the Traffic and Road Safety Act 1970 which provides that:— IS • •- - • • • • ?• •• - *-r In* the instant ca-seHtW>K-'the contention of counsel for the defendanLihai<v.:. the mini-bus was carrying excessive passengers and this raad^ driving unsafe.

"No person shall carry passengers in ^a motor vehicle, trailer or engineering plant in such numbers or in such position as to be likely to interfere with

the safe driving of such motor vehicle, trailer or engineering plant."

The police accident report (exhibit P.l) stated that the mini-bus was carrying ²¹ passengers and according to P. W.4 (the plaintiff) the mini-bus was licensed to carry only ¹⁴ passengers.

To counter this, counsel for the plaintiff submit ted that the police report does not state how the passengers were seated in the mini-bus so as to interfere with safe been travelling with their mothers. driving. He also staled that passenger No. ¹⁹ and ²¹ were infants who must have

The evidence before me is that both drivers were driving very fast. Driving fast is itself not evidence of negligence. lhe particulars of very

negligence pleaded by the plaintiff were not proved. What is lacking is what each 一个通过是在一个人

driver did at that critical moment to avoid the head-on collision. The evidence of · · · · · · · · · · · · · · · · · · · $\cdots \cdots$

what reasonable steps were taken by each driver to avoid the accident was not $\{S_{i},\cdots\}$

adduced. Each driver had a duty to exercise caution. The evidence show that 新的建筑基本的 计 网络多叶

each driver was to blame. I will therefore apportion the blame at 50%. $\mathcal{L}(\mathcal{M})$ $\mathfrak{a}_{-k}$

The second is sue is whether the accident was inevitable. The expression 一些。一个一个年轻的一个生活的生产生的 南南 $\mathcal{L}_{\text{max}}$ inevitable accident was defined in an English decision of Schwan v. The Albano 語、一般的文字之中的語言、「中国学生」 **Call Approx**

$(1892)$ P.419. $\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L}$

$\sim$ 1

$\mathcal{L}$

in a few to Lord Esher at page 429 said:-

this was a major

$\frac{1}{2}$ what is the proper definition of inevitable accident? To my mind these 10 $\begin{array}{c}\n\circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \circ \\ \$ is on the mission of

cases show clearly what is the proper definition of inevitable accident as $\mathbf{A}^{\mathbf{L}}$ $\mathcal{X}_0 \subseteq \mathcal{X}_0 \cup \mathcal{X}_1$ distinguished from mere negligence - that is a mere want of reasonable care. $\mathcal{L}^{\mathcal{L}}$

and skill. In my opinion, a person relying on inevitable accident must show $\cdots \cdots$ $\mathcal{D}(\mathcal{M})\otimes\mathcal{M}(\mathcal{M})$ that something happened over which he had no control, and the effect of

which could not have been avoided by the greatest care and skill. That $\sqrt{S}$ $\cdots\cdots$ $\mathcal{L}_{\mathcal{L}} = \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}}$ $\sim$ $\sim$ $\sim$ $\sim$ $\sim$ $-2$

seems to me to be the very distinction which was taken, and was meant to $\mathcal{F} \neq \mathcal{H} \subseteq \mathcal{F}$ $\mathcal{C}(\mathcal{M},\mathcal{C})$

be taken between the case of inevitable accident and a mere want of

reasonable care and skill."

The above definition has been consistently followed in East Africa and Uganda in

the following decisions:

🙌 🎨 Embu Public Road services v. Rumi (1968) EA 22.

Dewshi v Kuldip's louring Co. (1969) EA 189;

Oboth Epupi v Uganda Electricity Boad (1980) H. C. B. 136.

These decisions state that a defendant who relies on a plea of inevitable accident must show by adducing evidence that something happened over which he had no $25$ control and that it could not be avoided by the greatest care and skill.

In the instant case the testimony given by D. W.1 that he saw the mini-bus

coming from a tarmac road and it suddenly entered the road at high speed did not

show that this was an emergency which was so sudden and unexpected that the ·金、墨等。 1992年1 $\sim$ ?

driver of the bus could not have taken that amount of corrective action which is 化基苯基苯甲酸 医温润湿炎症 $\chi \neq 0$

expected of a competent driver of a public service vehicle. The evidence should

show that the driver kept a proper look out. I do not think that the plea of $5$ ing a final state of the $\mathcal{L}_{\mathcal{L}}(\mathcal{L}_{\mathcal{L}})$ inevitable accident is available to the defendant.

$-11 - 1115$

The last issue to determine are the reliefs which the plaintiff should get.

He had claimed special aggravated and general damages. Interest at 40% per $\cdots$ annum and costs of the suit.

in my lasticidar in a no c **Children**

and and a property

$\cdot\ \cdot$

Special damages must be pleaded and strictly proved at the trial as being the IO $\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{O}(\mathcal{$ $\mathcal{L}_{\mathcal{L}} = \mathcal{L}_{\mathcal{L}}$ $\mathcal{L}(\mathcal{L}, \mathcal{L}) = \mathcal{L}(\mathcal{L}, \mathcal{L})$ direct result of the defendant's wrongful act(s). The special damages claimed was **Contractive Contractive** $\mathcal{L}^{\mathcal{L}}(A) = \mathcal{L}^{\mathcal{L}}(A) \mathcal{L}^{\mathcal{L}}(A) \mathcal{L}^{\mathcal{L}}(A) \mathcal{L}^{\mathcal{L}}(A) \mathcal{L}^{\mathcal{L}}(A) \mathcal{L}^{\mathcal{L}}(A)$ 1947年1月19日 S. S. the sum of shs. 16,000,000/= being the pre-accident value of the mini-bus 318 UBA.

$\sim$ 1 $\sim$

The plaintiff relied on the testimony of Jolly Sekanoni an assessor and valuer with s the face Uganda Loss Adjusters and Surveyors. He testified that he carried out an inspection of the vehicle and compiled a report (exhibit P.2). He told court that 15 the pre-accident value of the vehicle was assessed at shillings $16,000,000/=$ and the salvage value at shs. 500,000/ $=$ . His conclusion was that the vehicle was a total loss. His evidence was not controverted. He has been doing this type of job for a period of 24 years and therefore he has experience to make a proper assessment. I will therefore I accept that the pre-accident value of the plaintiff's mini-bus was DO shs. 16,000,000/= and the salvage value shs. 500,000/=. Since I have held that the plaintiff's driver was 50% guilty of negligence, I will award him, shs. 8,000,000/= loss, $500,000$ /= salvage value. This will come to shs. 7.5 million.

The other claim of special damages claimed was shs. 120,000/= being the survey fees, shs. 10,000/= for the police accident report and shs. 100,000/= being the $\Delta$ towing charges. These damages were not strictly proved as the law requires. The plaintiff must have been issued with receipts which he ought to have produced.

I will decline to award them.

The other damages claimed were general which are generally at large and within the discretion of the court. But the plaintiff must lead some evidence to

^t /. J guide court in making the assessment.

was a total loss and the plaintiff was advised that it was uneconomical to repair it. Therefore there is no period of repair. But working on the assumption that the to plain tiff suffered damage as a result of the accident complained of, he will be *■"£* - awarded nominal damages of shs. 100,000/=. U^^Ehe evidence led was that he was earning 40,000/= shillings net income per day. S' • •• . '..................... must , be made on the following principles- the begins from the date of the collision up to the time when with due diligence the repairs ought to have been completed. The vehicle in this case

in the sum of shs. 7,500,000/=, special damages; shs. 100,060 ⁼ nominal damages. Both awards will carry interest at the rate of 40^ per annum from the date of Judgment will be entered in favour of rhe plaintiff against the defendant judgment till payment in full. He is also awarded the taxed costs of rhe suit.

C. K. ByWw a (Mrs)

Jud ge-

?M() ⁰ ⁷

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 80 OF 1996

MIKIDADI NSUBUGA PLAINTIFF

### VERSUS

GASO TRANSPORT SERVICE CO. LTD. DEFENDANT

# DECREE

THIS SUIT coming this day for final disposal beforeHERLORDSHIP JUSTICE CONSTANCE K. BYAMUGISHA in the presence ofthe plaintiff and his learned Counsel HON. NSUBUGA NSAMBU and in the absence ofthe defendant, IT IS HEREBY ORDERED THAT:

**1.** The defendant do pay to the plaintiff Shs. 7,500,000/= being special damages.

**2.** The defendant do pay to the plaintiff Shs. 100,000/= being general damages.

3. The defendant do pay the taxed costs ofthis suit.

**4.** The defendant do pay interest of40% p.a. on the decretal sum from the date ofjudgement till full payment.

GIVEN under my hand and the seal ofthe court this 22nd day of October, 1997

**>** DEPUTY REGISTRAR We approve: IC... Drawn by: Nsambu & Co. Advocates. Plot ¹ Entebbe Road P. O. Box 2043 KAMPALA. **-** Mulindwa & Co. Advocates Counsel for the Defgjidant. V ⁰ P.