[2000] UGHC 57

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. 1087 OF 1997

$1.$ FRANCIS MUTABAZI KAMARA DEODATA MUTABAZI $2.$ ................ PLAINTIFFS SHARON MUTABAZI **}SUING THROUGH A NEXT** $3.$ HABAKURAMA MUTABAZI }FRIEND FRANCIS MUTABAZI 4.

### **VERSUS**

1. HORIZON COACHES LTD STERLING INTERNATIONAL CIVIL ENG. LTD ......... DEFENDANTS $2.$

#### BEFORE HON. MR. JUSTICE E. MWANGUSYA

#### J U D G E M E N T

The plaintiffs sued the defendant Company for general and special damages arising out of an accident involving the defendants but in which Tushabe Mutabazi a five year old son of the 1^st plaintiff was killed and 2^nd and 3^rd and fourth plaintiffs sustained injuries in various degrees. He also prayed for interest and costs of this trial.

The essential facts of this case are that on the $1^st$ day of March 1997 Tushabe Mutabazi (now deceased), the $2^{nd}$ , $3^{rd}$ and $4^{th}$ plaintiffs were travelling in the defendant's bus from Kampala to Kisoro when the bus overturned at a place called Karukara on Kabale Kisoro Road.

Tushabe Mutabazi died during this accident and his father, Francis Mutabazi is suing on behalf of this child's Estate and the rest of the plaintiffs are suing for damages as a result of injuries incurred during the accident.

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**SCARALI** In ... am is a $\ddot{\cdot}$

According to the post mortem performed on the body of Tushabe Haemorrhage due to extensive brain damage. Mutabazi by Dr. Anguyo on 1st March 1997, the deceased child died of Cerebral

The second plaintiff sustained bruises and abrasions on the face involving the area of the nose. Dr. Anguyo classified these injuries as Harm. She also sustained bruises over the left shoulder that were also classified as Harm and a Fracture of the left Clavicle bone which he classified as Grievous Harm. He assessed those injuries classified as Harm at a temporary incapacity of 5% and the injury classified at Grievous Harm at a temporary incapacity of 5% and the injury classified at Grievous Harm at ^a permanent incapacity of 30%. **ⁱ O**

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The third plaintiff sustained bruises on the face and left cheek which Dr. Anguyo assessed at a temporary in capacity of 5%.

The fourth plaintiff sustained a cut wound on the frontal head, a cut wound on the left infra orbital area, a depression fracture in the occipital region and a cut wound on the posterior head. This plaintiff's temporary incapacity was assessed at 50% and her permanent incapacity was assessed at 40%.

The following issues arise out of the above facts:-

**1.** paying passengers on the defendant's bus. whether the deceased child and the 2nd 3rd and 4th plaintiffs were fare

**2.** Whether the defendant was liable for the accident as a result of which the deceased died and the 2nd, 3rd and 4lh plaintiffs suffered the injuries listed above.

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- 3. incurred as a result of the accident. Whether the 1st plaintiff is entitled to special damages for expenses - **4.** Whether the 1st plaintiff is entitled to general damages for the death of his son and if so how much. - **5.** Whether the 2nd, 3rd and 4th plaintiffs are entitled to general damages for injuries sustained in the accident and if so how much.

The first issue is raised in paragraph 4 of the defendant's amended **|O** October 1999 where it is admitted that the Bus Registration No. 847 UBD was on 1st day of March 1997 involved in an accident at Karukara along Kabale-Kisoro Road but denies that the late Tushabe Mutabazi, the 2nd, 3rd and 4th defendants were lawful fare paying passengers travelling on the defendant's bus. The Baganda Bus Park in Kampala, paid their fares at the Horizon offices, saw then to their seat on the Bus Registration No. 847 UBD, bade them farewell and the bus left. written statement of defence filed on 13th 1st plaintiff testified that on the fateful day he escorted his family to the

This evidence was not challenged and any suggestion that the deceased o child and the 2nd, 3rd and fourth plaintiffs were not fare paying passengers on the said bus will be dismissed without any ado. ^I therefore, hold the four members of the 1st plaintiffs family were fare paying passengers on the defendant's bus.

On the second issue the defendant contends that the said accident was wholly due to the negligence of the employees Sterling International Civil Engineering Limited whose employees or servants and or agents in the process of repairing the road poured too much water on a compacted surface making it very slippery and did not alert the users of the dangerous condition of the road.

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Originally the defendant had sought and been granted leave by this court to issue a third party Notice to Stirling International Civil Engineering Ltd. A chamber Summons under Order ¹ Rule 18 of the Civil Procedure rules was issued by this court on 15th January 1998 for hearing of the third **ⁱ o** party Notice on 27th February 1998. For reasons which are not clear this Notice was not heard and was never pursued.

The case proceeded with only Horizon Coaches Ltd. as defendant. During the course of the hearing Mr. Birungi Counsel for the defendant made an oral application to have M/s Sterling International Ltd. joined as ^a 'S defendant to the suit. Court granted the application but when the plaintiffs filed an amended plaint it did not disclose any cause of action against M/s Sterling International Ltd. and he (Counsel) successfully applied for striking out the amended plaint against her. Having looked at the plaint there was no way M/s Sterling International Ltd could defend the suit against them as there was nothing alleged against them.. To me that would not have precluded the defendant from adducing evidence to show that Stirling was wholly to blame for the accident. No evidence was adduced and in any case ^I do not see how that would absolve then from

responsibility for the accident. In my view a driver of a bus is expected to be prepared for such eventualities on the road and ^I will hold that the defendant takes fully responsibility for this accident.

On the issue of special damages the 1st plaintiff made the following claims:-

- 1. Medical expenses for the 2nd, 3rd and 4lh plaintiffs 280,000/= - 2. Transport from Kampala to Kisoro and back to Kampala 15 trips at Shs 20,000/= per trip 300,000/= - 3. Transport from Kampala to Kisoro and back to Kampala 15 trips at 30,000/= per trip

450,000/=

4. Transport from Nairobi to Kampala 5 trips

At 32,000/= per trip 260,000/=

5. food for the plaintiff in Kabale from 5lh March to 30th March 1997 at Shs 10,000/= per day.

250,000/=

6. Accommodation at Kabale for 25 days at

Shs 4,000/= per night

100,000/=

- 7. Daily transport, food and accommodation in Kampala at the rate of Shs 4,000/= per day For 44 days. 176,000/= - TOTAL 1,716,000/=

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Mr. Birungi, Counsel for the defendant submitted that these damages had not been strictly proved and should, therefore, not be awarded. He cited the case of Bhogal versus Albridge and another [1975] E. A. 286 and that of Frank Makumbi versus Kigezi African Co. Ltd 1986 HCB 69 where it was held that where no evidence has been led to prove special damages, the claim for special damages should be disallowed. That is an established principle. In the instant case the plaintiff was unable to produce receipts that would have made the task easy. But according to the evidence adduced by the 1st plaintiff this was not possible. He testified that receipts and other documents relating to this claim were lost in Kenya. His evidence was not contradicted and to me this is an acceptable explanation for the failure to produce receipts to prove this claim. The figures themselves are modest and in absence of the receipts ^I will accept this explanation and hold that the 1st plaintiff is entitled to an award of Shs 1,716,000/= as special damages.

^I will now go to the issues relating to General damages the first of which is **is** old Son. The first plaintiff testified that by the time Tushabe Mutabazi died he was already showing a lot of talent in him and the 1st plaintiff was preparing to send him to school, the loss of this child is aggravated by the fact that his family does not know where he was buried. From the authorities of FRANK MAKUMBI versus KIGEZI AFRICAN BUS CO. LTD. 1986 H. C. B 69 and the Supreme Court case of Uganda Electricity Board versus G. M. Musoke (Civil Appeal No. 30 of 1993 (Unreported) it is clear that damages are not awarded for whether the 1st plaintiff is entitled to any damages for the death of his five year

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bereavement but rather for loss of expectation of life. In the case of Musoke it •was stated as follows:-

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bereavement. Thy are awarded for loss of expectation of Life " An award of Shs. 1,000,000/= was made. This was in 1994. The purchasing power of the plaintiff proposed an award of Shs 10,000,000/= which ^I consider too high. ^I consider an award of Shs. 3,000,000/= an adequate award under this head. "In Uganda, however, the law is still that damages are not awarded for shillings has gone down considerably. Mr. Omunyankol Counsel for the 1st

As far as the claims for the 2nd, 3rd and 4th plaintiffs are concerned Mr. Birungi Counsel **IT)** for the defendants submitted that since none of them was presented to court for court to assess their physical situation and testify to the accident their claims should be dismissed. On 8lh June 1999 this same Counsel made a submission in court that it was no longer necessary for the plaintiffs to be present and court dispensed with their presence. ^I do not see any difficulty presented by this situation. The plaintiffs are claiming for the injuries sustained **15** during the accident and the evidence of the 1st plaintiff and that of the medical officer who examined them sufficiently prove these injuries. The only problem that arises is that one of the factors normally considered in assessment of damages of this nature was not proved. We do not know the occupations of each of the three plaintiffs that would enable court to determine how the injuries sustained affected their capacity to carry on with whatever work they were doing and how the injuries affected them in their daily life. Considering the injuries sustained ^I will make the following awards:-

1. For the 2nd plaintiff who sustained a fracture of the left clavicle bone and a few superficial injuries Shs 2,000,000/= will be awarded.

- 2. For the 3rd plaintiff who sustained only bruises Shs. 1,000,000/= will be awarded. - 3. The 4lh plaintiff who sustained head injuries Shs. 5,000,000/-will be awarded.

Lastly, ^I will deal with Mr. Birungi's submission that the defendant was not afforded any opportunity to produce her witnesses. ^I will not dwell so much on this submission. The trial of this case was characterised by absenteeism on the part of Counsel for defendant. On 5.11.99 he applied for an adjournment to enable him produce the witness but the application was dismissed because he did not show any sound reason why those witnesses were not in court. Thus *IO* courts decision to proceed with the hearing of the case without those witnesses.

All in all judgement is hereby entered in favour of the plaintiffs against the defendant in the following terms:-

- special damages of Shs 1,716,000/= to be paid to the ¹st plaintiff.' (a) - General damages to be paid to all the plaintiffs as follows:- **15** (b) - Shs 3,000,000/= to be paid to the ¹st plaintiff in respect of hrs **(i)** deceased son. - Shs 2,000,000/= to be paid to the 2nd plaintiff. **(ii)** - (iii) Shs 1,000,000/= to be paid to the 3rd plaintiff. - (iv) Shs 5,000,000/= to be paid to the fourth plaintiff. - **c.** interest shall be paid on the above damages at court rate till payment in full.

$d$ . The defendant shall pay costs of this suit.

**Signed**

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Judge

$16/6$ , 2000

# Court:-

I am proceeding to Fort Portal for a Criminal session opening on 19.6.2000. the Registrar of the High Court is directed to notify the parties and deliver this judgement.

# 23/6/2000:-

Mr. Omunyokol for plaintiff present Mr. Birungi for defendant absent Plaintiff present Judgement read and delivered.

## **REGISTRAR HIGH COURT**

23/6/2000

| George and Orage<br>Daniel Training<br>Anti $286$ | in well cased throwed t | | |---------------------------------------------------|-------------------------|--| | | | | | | | |

$15$

$10$