[1994] UGSC 53


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## STERLING CIVIL ENGINEERING (U) LTD .......... RESPONDENT

(Appeal from the Judgment of the High Court of Uganda at Kampala, (Kityo - J.) dated $9-4-92$ , in H. C. C. S. No. 323 of 1989).

## JUDGMENT OF THE COURT

This appeal arises from a terrible accident which occurred on 8-8-88, at Kawolo in Mukono District. The accident involved the respondent's lorry, driven by his driver one Senyonjo and a car in which the appellant was travelling. It belonged to his Three people in that car died on the spot. friend. Five separate suits were filed against the respondent by the survivors of the accident for damages. In the first suit, which was used as a test suit, and which was brought by one Margaret Kirumira and others liability was admitted.

In the instant case the appellant sued the respondent for Liability was admitted by the general and special damages. respondent following his admission in the test suit. The appellant gave evidence and called one witness, Dr. Matovu Joseph (PW2) who had treated him at Jinja Hospital where he was admitted following the accident. The respondent did not lead evidence. The trial judge awarded the appellant Shs. 800,000/= general damages for pain and loss of amenities and Shs. $3000/$ = special

damages being the proven costs of the Police accident report and sketch plan.

The claim for Shs. $200,000/$ = as medical expenses was rejected on the ground that it was not proved.

The appellant now appeals against the quantum of damages on the sole ground that the damages were inadequate. He wants to have them raised. The appellant's ground of appeal states as iollows:-

> trial Judge awarded "The learned very insufficient damages compared το the injuries, pain and suffering occasioned to the plaintiff/appellant and such an award constituted an error in principle."

It was clear from the above ground that appellant was not appealing against the amount of special damages awarded. We accordingly declined to hear him on special damages. In principle an appollate Court would normally not interfere with the findings of the lower Court on the issue of damages except where the Court has not properly appraised the evidence in assessing the damages and so made a wholly erroneous estimate of the damages resulting in too small or too large a sum. See: Davies & Another v Powell (1942) IAU. E. R.657 at 66 and Flit v Lovel (1935) IK. B. 354 AT $360.$ The appellate Court should not reverse the finding of the trial Judge on quantum even if that Court would have awarded a higher sum. This principle has been accepted in our jurisdiction in <u>Kungo v Njoroge</u> (1952) 20 BACA 60 Metha v Patel (1954) 22 BACA 169 and Singh v Singh (1955) EACA 125 at 129.

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In the instant case the appellant's evidence was, in summary, that he was a driver with Bugungu Coffee Factory but that because of injuries he sustained in the accident he had been assigned other duties. At his advanced age of 36 he played football for his local club, but the injuries had forced him to abandon the sport. The injuries were: dislocation of the right leg, three cut wounds on the chest, two cut wounds on the right hand, two cut wounds on the right side of the neck, one wound on the calf, three wounds on the forehead and a simple fracture of

the right femur. There was persistent pain in the right leg, right shoulder and chest.

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Dr. Matovu (PW2) did support the evidence of injuries. However, he did not assess permanent disability, if any. Ms. Nanyonga of B. K. Patel & Co. Advocates, Counsel for the appellant, has submitted that the trial judge does not seem to have taken into account "suffering." He only considered pain and loss of amenities. She argued that had the trial Judge considered "suffering" which relates to distress which would include fright at the time of the injury and fright reaction, fear of future incapacity, either as to the health, sanity or the ability to make a living, and humiliation, sadness and embarrassment caused by disfigurement, and had he properly appreciated the gravity of the injuries, he would have awarded something like Shs. 6 million general damages.

As against this there is the submission to the trial Judge by Mr. Nangwala of the same firm of B. K. Patel & Co. Advocates, that a sum of Shs. 2 million general damages would be fair and adequate.

Mr. Kateera who represented the respondent supported the award of Shs. $800,000/$ =. He contended that since the Uganda Shilling was floated in 1981, and then demonetized in 1987, the decisions of the Courts in Uganda offer little or no guidance on assessment of damages. The Judges have no precedents to go by. They use their common sense as the trial Judge did in this case. We are not aware that the doctrine of precedent no longer applies in the High Court. On the contrary, we handle many cases in which Judges have cited and relied on previous decisions of the High Court and Supreme Court made during the period in question.

We note that the trial Judge was not assisted by the Counsel in the case who did not cite any authorities in support of their submissions on damages. In our view when assessing damages in question court ought to look at other decided cases for guidelines since injuries can never be same in these running down cases. We therefore expected Counsel for the appellant to refer us to cases showing that the award was out of step with awards made in similar cases.

This she did not do. The two cases cited were not helpful Sulaiti Kityo v Uganda Consolidated & M. Bossa, H. C. C. S $777/89$ the plaintiff suffered very sever injuries in a $\frac{1}{2}$ Permanent disability was assessed at 40%. accident. He awarded Shs. 10 million by Kityo, J, in 1993.

In: Bernapas Ntimba v U. E. B. Civil Appeal No. 16 of 1992 (Supreme Court) the appellant was struck by electricity while working for the respondent. He was reduced to a moron, more or less like a baby who would need the constant care and attention of his wife or other relatives. The trial Judge awarded him general damages of Shs. 9 million. He appealed against the award. The appeal succeeded and the sum awarded was doubled.

In the instant case the trial Judge was faced with the situation where the appellant's injuries had healed fairly well; there was no evidence of any permanent disability; the appellant had not lost his job but had merely been switched over to a lighter job; there was no evidence that his income had been reduced in any way. There was no evidence that he would suffer any psychological injury. It has not been shown by the appellant that the trial Judge erred in principle in his assessment of the general damages.

This Court would therefore not be entitled to interfere with the award made. There is no merit in the appeal.

In the result we dismiss the appeal with costs to the respondent.

Dated at Mengo This ....4th.... Day of.... March...1994

S. T. MANYINDO, DEPUTY CHIEF JUSTICE.

B. J. ODOKI, JUSTICE OF THE SUPREME COURT

A. H. O ODER JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OR THE ORIGINAL. $\mathcal{Z}$ $E. K. E.$ **TURYAMUBONA,** DEPUTY REGISTRAR, SUPREME COURT.

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