[1999] UGHC 31

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## HIGH COURT CIVIL SUIT NO. 1109 OF 1997-

TOPISTA NABAKKA & ANOTHER ....................................

**PLAINTIFFS**

### **VERSUS**

EGESA COMMERCIAL AGENCIES :::::::::::::::::::::::::::::

DEFENDANT

### BEFORE: THE HON. MR. JUSTICE E. S. LUGAYIZI

**JUDGTMENT:**

The plaintiffs in this suit (i.e. mother and son) sued the defendant and requested court to award them, among other things, general and special damages for injuries they sustained in a motor accident which involved the defendant's lorry on 3rd May, 1997.

The defendant in its W. S. D. denied the above claim. It insisted that the above accident arose as a result of the sole negligence of the driver of the motor vehicle in which the plaintiffs travelled at the material time; alternatively the plaintiffs' side was contributorily negligent.

At the time of hearing this suit while the plaintiffs' side called 5 witnesses the defendants side called 2 witnesses. In very brief terms the plaintiffs' case was as follows. On 3rd May, 1997, Topista Nabakka (PW5) and her son Semwogerere Nikolas travelled in a pick up motor vehicle, Dyna in make whose registration No was 845 UAS. They were going to Jinja where Nabakka, her son, another man, and Mukiibi John (PW4Xwho was the driver of the abcve motor vehicle) sat at the front of the said motor vehicle. They did not travel faat, but as they reachcd Mbalala rvhich is near Namawojjolo it was raining As they negotiated ^a sharp bend, without any rvarning, thcy found two lorries in that bend. Those lorries wete parked back to back on the plaintiffs' side of the road (i.e. the left side). At this point' another motor-vehicle which was corning frorn Jinja and going to Kampala cruised by' Mutiiibi (PW4) rvho rvas norv lost for rvltnt to (lo instantly drove thc D)'na pick up straight into the dcl'enclant's lorry a Merccdcs Bcnz rcgistli,riort No. UXJ 211. ',Ihc Dyna pick up rvas batily damaged and Nabaklia and her sotr scniwogerere wcre seriouslf injured, They rvere rushed to Karvolo hospital for initial treatment and later referrcd to Mulago hospital' Nabaklia's left leg was eventually amputated. Ilt'rth of Sernwogerere's legs rvere broken and the left one has not 1,et fully healed. It hrs limit2.tion of movement at the knee level, extensive scarring with discharging rvounds ancl evidence of bone infection. The plaintiffs prayed court to grant them the remedies in the plaint.

On the other hand, the defendant's case was tlret it was the driver of the Dyna pick up (PW4) whOSe negligence solely citused the accidclll ii, (ii cstioll. 'i'hat accjdcrlt UCCullcd oll a strctch at a place wlich rvas about 500 metres au'a)' liortr a bend The defcndant's lorry (UXJ 21i) which was ran into by the said pick-up was st.l(ioned at that placei and it \\'as quite easy to see it once one emerged from the bend. It u,as being loaded with salt fl'om another lorry registration No. KAC 484 N. The latter l:ad broken down at the scene of the accident' Further to that. the defendant also mainlained that it h3d given sufficient warning to the approaching traffic of the existence of the ahove hazard on the roed by placing tree leaves in both directions along that road. The defendant therefore called for the dismissal of the

t

plaintiffs' suit. negligent. In the alternative it insisted that the plaintifls were, at least, contributorily

Five issues were agreed upon by the parties to this suit; and they are as follows,

|i

- Whether the plaintiffs were passengers in motor vehicle No. 845 UAS at thc time of the accident? I - \\'hich party rvrs responsiblc for tlte ncgligencc lerding to the accident in question? 1 - Whether there was contributory negligence oD the plaintiffs' pafi arld what is its extent? J - Whcther the plaintiffs suffered any injuries at the time of the accident? 4 - Whether the defendant is liable for those injuries and to what extent? 5

I will endeavour to resolvc the abcve issues in the ordcr in which they are presented above.

As far as the first issue is concerned, Nabakka (PW5) told court that slte and liel son (the 2nd plaintiff) were passen!.els irr the Dyna lliotol vchiclc ir: clucstion iit the t:nle of tlle accidenr. Ahhough Mukiibi, (PW4) who was driving that motor-vehicle at that time did not know Nabakka's name and her son's name, he confirmed in his evidence that the lady who had testified before court (i.e Nabakka) and her son lvhom he had seen in court \\,ere nassengers in rhe said Dyna at the time of tlie above accident. The above cvidence was not challenged or contraclicted by the defendant. If anything Johu Elesu (DW1) and Kabwama John (DW2 tended to agree with it by telling court that on 3rd May, 1997 when

they went to the sc€ne of the accident, among the victims of the said accident was a woman andasmalIboy. Takingintoaccountalltheabove,Iamsatisfiedthattheplaintiffsprovcd on a balance of probabilitirls that they were passengers in motor vehicle No. 845 UAS at the timeoftheaccident. Thefirstissuehasthereforebeenansweredintheaffirmative.

concerning (he second issue, it is important to note that both parties to this suit are agreed that negligence was the root cause of the accident in question' I{owcvcr' cach of them pointedanaccusingfirrgcratt'heotlrerasthepcryctratorofthatnegligence. Toillustrate this, Mukiibi (PW4) tolc.l court that at the time of thc accidcnt he was rvith thc tu'o plaintiffs in rlotor vehicle No. 845 UAS. He was driving it slou'ly (i.e' between 40 - 50 k'p h') and when he reached the blind bend near Namawojjolo he was, without any prior warning, forced into a siruation wherebl' he had to decide either to collide' head on' \$'ith a lnotor vehicle whiclr was sweeping past on his right as it came from Jinja and headed for Kampala or, to draw to his extreme left and ram into two lorries which were parlied on the left side of the road. He instantly wenr to his left and collided with the defendant's lorry. Given the above facrs Mr. Kaala counsel for the plaintiffs submitted that it was obvious that the defendant was solely lesponsible for causing the accident in question'

Horvever, according to Elesu (DWl) and Kabwama (DW2), the defendant's lorry (UXJ 211) was knocked by the Dyna pick up,in question after it was tawfully parked on lhe left side of Jinja road and was relieving another broken down lorry of its load. That accident took place ar a point which.was 500 metres away from the bend. The traffic from both directions of Jinja Road was also adequately warned of that hazard by the presence of tree leaves which were placed by the defendant's agents on that road' From the foregoing' Mr' Emesu

a

counsel for the defendant therefore submitted that it was the negligence on the part of the driver of the Dyna pick up which made that driver ram into the defendant's stationary lorry (UXJ 211). For that reason the defendant ought not to have been sued by the plaintiffs.

I have had the opportunity to consider the above two versions and I am of the opinion that the plaintiffs' side's version is the correct version as to how the accident in question happened. In fact both captain Amir Nsereko (PW2) and No. 21009 WPC Yolyanaye Ida (PW3) (who were independent witnesses) to a great extent confirmed the reliability of that version by telling court that the said accident took place in a blind corner and there was no indication on the road that the defendant's lorry and another lorry were parked at that spot. Needless to say, the defendant or its agents had no good reason to park the defendant's lorry (UXJ 211) in a blind corner on the road in question. The defendant's lorry had not broken down. Therefore it had no compelling reason to stall in that corner. The fact that it was relieving a broken down lorry of its load was also not good enough reason for it to park in that corner. It could have still relieved the broken down lorry of its load of salt while standing some good distance away from the blind corner. If it had done so, that part of the road where the accident happened would have obviously been less congested of traffic at the time of the accident by, at least, one lorry; and if that had been the case, it is unlikely that the accident in question would have happened. This is particularly so, when one takes into account the fact that the driver of the Dyna pick up in question was negotiating that corner slowly. I think he would have had sufficient space to bring his pick up to a halt without running into the broken down lorry (KAC 484N) if the defendant's lorry had not been at the scene of the accident to disable him to do so. In view of the above therefore, I have no choice but to find that it was the defendant's lorry which caused the accident in question.

$\mathsf{S}$

In the circumstances the defendant was responsible for the negligence leading to that accident.

As far as the third issue is concemed, according to l,ewis v. Denve (1939) I Ail E. R. ³¹⁰ at Da e 316 and ³¹⁷ in order to establish the defence of contriblto negligence the del'e ndant must pro\f ^e lt 1lrat the pliiintiffs failed to tak -ordinary QaIc of tltcmselves or, in othcr words, such catc as rcasonatrlc pcrsons u'ould -takc for thcir own safcty and (ii) tlrat their failure to do so rvas a contributory cause of the accident.

In a bid to prove the above, the defendant's counsel relied on the following facts (i) tltat the plaintiffs were passengers in a comntercial vehicle (i.e Dyna pick up 845 UAS) and (ii) that they were privy to overloading the front seat of that vehicle where they were all seated (3 adults and a little boy) at the time of the accident. According to Mr. Emesu the above acts rvere glaring breaches on the part of the plaintiffs of the current Traffic law and therefore contributed to the accident in question.

I must first of all point out thet the 'I'raffic and Ro:rC Slfcty Act of 1998 tvhich cleated the above offenses, on the whole, did not take effect until March 1999; and I greatly doubt whether the said two offences were capable of being committed by the plaintiffs under the old traffic law (i.e. the Traffic and Road Safety Act of 1970). Consequently, the plaintiffs could not have committed the above offenses at the time the accident in question happened (i.e on 3rd May, 1997).

Be that as it may, let us assume that because the plaintiffs travelled in a commercial vehicle

a

as opposed to an ordinary passenger vehicle and because they agreed to be overloaded at the front of the said vehicle that, at least, proved that they failed to take such care as reasonable people would take for their own safety. Now the remaining question would be whether that failure was a contributory cause of the above accident? In other words, did the plaintiffs' presence in the above vehicle contribute anything to the occurrence of the accident in question? In my opinion the defendant did not furnish court with any evidence to show that the plaintiffs' presence in the said motor-vehicle at the time in question contributed anything to the occurrence of the accident. In the circumstances I am of the view that the defendant failed to prove that the plaintiffs contributed to the negligence which caused the accident in question. The first part of the third issue has therefore been answered in the negative. That means that the second part of that issue does not arise; and I so find.

As far as the fourth issue is concerned, Nabakka's evidence was to the effect that both herself and her son (the 2nd plaintiff) suffered serious injuries as a result of the accident in question. Apart from that evidence there was also the evidence of Dr. Madewo (PW1) who told court that Nabakka and the 2nd plaintiff were referred to him at Mulago hospital. He found that both of them had serious injuries on their bodies. The above evidence was not contradicted or shaken by the defendant. I am therefore willing to find that the plaintiffs succeeded in proving on a balance of probabilities that they suffered injuries at the time of the accident in question.

Concerning the fifth issue, since it was the defendant whose negligence was responsible for the accident in question it follows that the defendant must be held liable for the injuries the plaintiffs sustained during that accident; and I hereby order so. The extent of the defendant's

$\overline{7}$

liabiliry to rhe ptaintiffs of course depends on the nature of the injuries the plaintiffs suffered during the accident in question. Those injuries were listed by Dr. Madewo (PWl) in his reports (Exh. "P1 & P2"). According to the said doctor, Nabakka had her left leg amputated just above the knee. That left her with a permanent disability 'which is estimated al 75Vo ' \ She has to get an artificial timb, physiotherapy and occupational therapy to help her to cope. The sccond plaintiff on thc othcr hlnd sustained bilatclal open fractures of the tibia and fitrula and closed fracturc of the Ieft femur. The fractures healed, but the 2nd plaintiff rvill have Permanent disability u4rich is estimated at 30% resulting from the injury to the knee' The question to answer norv is horv much money should court award to the plaintiffs in respect of those injuries? ve no scieritific formula to applv cbii,in precise results, but a cons ideralion -of tlte -arvarcls ri'hich were recently ]llg"..il o" julisdiction in resPect of similar cases rvill provide a goocl guide. I witl deal with Nabakka's case first. In the case of l\4 itiva Byaba ma and ²ORS v. Uea Trans rt Co. Civil Appeal No. 10 of 1993. the appellant whose leg \$,as amputated above the knee was awalded UGS. 4ml: as general damages by the High Court. On appeal to the Supreme Court the to enable me to

I

(a

has tremendously lost value. For example, the dollar to which it is pegged and used to cost UGS. 900/= in 1993 presently costs around UGS. $1500/$ =. Therefore taking into account everything, I think as a sum of UGS. $15m/$ = would be a fair amount to award as general damages to Nabakka (PW1 who is also the 1st plaintiff).

Turning to the 2nd plaintiffs' case, I will compare it with that of the 2nd appellant in the case of Matiya Byabalema (supra). That appellant who was a carpenter sustained a fracture of the left femur and his disability was assessed at 25%. He was finally awarded a sum of UGS. $1.5m/$ = as general damages by the Supreme Court. In this case the 2nd plaintiff's injuries were more serious than those of the 2nd appellant in Matiya Byabalema (supra). They affected both his legs, and are estimated to have brought against the 2nd plaintiff a permanent disability of 30%. Further to that, the 2nd plaintiff faces the possibility of future amputation of his left leg whose bones did not unite well. Presently he suffers from bone infection (at that spot) which is difficult to eliminate unless amputation is resorted to. Taking into account everything e.g. the tender age of the 2nd plaintiff, pain and suffering, the prospect of future amputation of his left leg, and of course the great loss in the value of the shilling since 1993 when Matiya Byabalema (supra) was decided, I would award the 2nd plaintiff a sum of UGS. $10m/$ = as general damages. So much for general damages.

Now turning to the question of special damages I have this to say. Despite the fact that the plaint indicated that the plaintiffs would claim special damages in the sum of UGS. $850,550/$ = no attempt was made at the hearing of this suit to prove that such an amount was spent. Since special damages must be specifically proved (See Estate of Karsan v. Bhatt &

$\overline{Q}$

All in all, judgment is hereby entered in this suit in favour of the plaintiffs as follows:

- The defendant shall pay them general damages in the sums of UGS. 1. $15m/$ for the 1st plaintiff and UGS. 10m/= for the 2nd plaintiff. - The defendant shall also pay the costs of this suit; and interest on the $2.$ sums in paragraph 1 above at court rate from the date of judgment until payment in full.

$\varsigma$ $\Gamma$

JUDGE.

$22/10/99$