[2024] UGHC 1018

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT JINJA**

**HCT-03-CV-CS-035-2021**

**NSUBUGA BARNET ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

**VERSUS**

**EAST ZONE SERVICE STATION LTD :::::::::::::::::::::::::::::::::::: DEFENDANT**

***Civil Suit-***

***Held:*** *The Plaintiff has SUCCEEDED in his Claim. He is awarded the reliefs sought as indicated in this Judgement.*

**BEFORE: HON. JUSTICE DR. WINIFRED N NABISINDE**

**JUDGMENT**

The Plaintiff brought this suit against the Defendant on the 8th of May 2019 claiming for special, general and exemplary damages for mechanical or professional negligence, interest and costs of the suit.

**REPRESENTATION**

When this case came up for hearing before me, the plaintiff was represented by learned Counsel Mr. Kutosi Denis Timothy of M/S. Greystone Advocates, while the Defendant was represented by learned Counsel Mr. Kyozira Sam of M/S. Isabirye & Co. Advocates.

**BRIEF FACTS**

The brief facts according to counsel for the Plaintiff is that on the 4th day of April 2018 at around 11:50pm, while on his way from Bugiri to Butambala to deliver coffee seedlings, diverted to the Defendant’s fuel station to fuel his motor vehicle UAM 629T Mercedes Benz Truck 6 wheel wherein he requested the pump attendant to fuel his truck with diesel worth Shs. 100,000/=.

After fueling, the plaintiff drove off and after about 600 meters from the defendant's fuel station when it stopped; and upon examining the vehicle, he realized that while at the petrol station they had put for him petrol instead of diesel hence causing a mechanical problem. That the plaintiff immediately went back to the petrol station and explained to the pump attendant, a one Dennis who had fueled his truck who acknowledged his mistake and asked the plaintiff to call his boss Mr. Namadhoa Moses on 0782368972, who told the plaintiff that since it was late he (Namadhoa) would come the following day. When Mr. Namadhoa came the following day and confirmed that the Truck had indeed developed a mechanical problem because his employee had fueled it with petrol instead of diesel, he called his mechanic to work on the truck; but the problem was not fixed and the plaintiff had to hire another truck onto which the seedlings were loaded on to be taken to Butambala.

On the evening of 5th April 2018, the plaintiff had his truck pushed to Musta KK Petrol Station for parking as by this time, neither Mr. Namadhoa nor his mechanic were picking their calls. The plaintiff on the 8th day of April 2018 reported the matter to Iganga Police Station, since the management of the defendant was not willing to help the plaintiff.

The plaintiff went to Spear Motors and established the costs of repairing is truck; and he towed the truck to Kampala; and also had to pay accumulate costs of parking. The defendant's agent at the fuel pump was negligent when he put for the plaintiff petrol instead of diesel hence causing the plaintiff mechanical failure and break down.

The plaintiff now seeks to recover Shs. 88,396.965 being fees for hiring another truck from Iganga to Butambala in Mpigi, Police Inspection Report parts estimate from Spear Motors, breakdown from Iganga to Kampala and parking fees from 5th April 2018 to 1st January 2019, general damages, punitive damages and costs of the suit.

**DEFENDANT’S CASE**

The plaintiff's motor vehicle Mercedes Benz Truck Reg. No. UAM 692 was never fueled from its Service Station on the 4th day of April 2018. Refueling a diesel engine with petrol cannot happen at the defendant's Service Station because prior to fueling, motorists are asked to cross check with the pump; and confirm the right amount and fuel before refilling is done.

That the plaintiff's assertions and claims is false because at its Service Station with the above procedure, the anomaly would have been see early enough to avoid the alleged mishap. The said Dennis is not known to the defendant and is not an employee of the defendant Company. That the defendants Managing Director has never talked to the plaintiff on phone about the alleged refilling with petrol instead of diesel and has never confirmed that the said motor vehicle developed a mechanical problem due to the defendant's employee. That the Managing Director of the defendant has never instructed its mechanic to work on the said motor vehicle as alleged. The Police investigated and reviewed all the evidence including the CCTV Camera at the Service Station and found that the said truck had never been at its service station on the 4th day of April 2018 and the file was accordingly closed.

I have examined the above facts *vis-a-vis* the pleadings of both sides and I agree with the facts as presented by each side.

**THE LAW**

The position of the law and the burden of proof in Civil Cases; it is well settled per **Sections 101 of the Evidence Act,** which provides that;

*“(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.*

**Section 102of the Evidence Act** provides that;

*“The burden of proof in a suit or proceeding lies on that person who would fail if at all were given on either side.”*

**Section 103** **of the Evidence Act** further provides that;

*“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*

The above was solidly reinforced in the case of ***Dr. Vincent Karuhanga t/a Friends Polyclinic vs. National Insurance Corporation & Uganda Revenue Authority, HCCS No.617 0f 2002 (2008) ULR 660 at 665,*** cited with approval by the Court of Appeal in ***Takiya Kaswahili & A’nor vs. Kajungu Denis, CACA No.85 of 2011,*** it was held, inter alia, that;-

*“…The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof that is, his allegation is presumed to be true unless his opponent adduces evidence to rebut the presumption.”*

On the other hand, the balance of probabilities is discharged/satisfied if there is greater than 50 per cent that the proposition is true and not 100 percent. Lord Denning, in ***Miller vs Minister of Pension [1947] All E R 373*** described it simply as *“more probable than not”.* For the above reason, errors omissions and irregularities that are too minor and do not go to the root of the matter and occasion a miscarriage of justice may be disregarded. See ***Dr. Vincent Karuhanga vs National Insurance Corporation & Anor H. C. C. S No. 617/2002 and Sebuliba vs Co-Operative bank (1982) HCB 129****.*

Further, in the proof of cases, unless it is required by law, no particular form of evidence (documentary or oral) is required and no particular number of witnesses is required to prove a fact or evidence as per **Section 58 Evidence Act** and **Section 133 Evidence Act**.

The **Evidence Act** defines a fact to mean and include:-

*(1) Anything, state of thing, or relation of thing capable of being perceived by senses as per Section 2 1 (e) (i) Evidence Act.*

Having stated the position of the law and rules of evidence, I will now turn to the substantive issues raised in this case as captured above and proceed to evaluate against the evidence on record.

**RESOLUTION OF THE ISSUES**

The following are the issues that were agreed upon during the Scheduling of this case:-

1. Whether the plaintiff fueled his truck Mercedes Benz Truck UAM 6291 from the defendant's Fuel Station? 2. Whether the defendant's employees were negligent when they fueled the plaintiff’s truck with petrol instead of diesel? 3. Remedies available to the parties?

**ISSUE NO. 1: Whether the Plaintiff fueled his truck Mercedes Benz Truck UAM 629T from the Defendant's Fuel Station?**

It was submitted by counsel for the Plaintiff that at the trial, the Plaintiff presented three (3) witnesses including himself, Nsamba Majid and Kamba Rogers. That it was **PW2**'s (Nsubuga Barnet/the Plaintiff) sworn evidence that he is the owner of MV Registration No. UAM 629T Mercedes Benz. That on the night of the 4th of April 2018 at around 11:50 pm, while on his way from Bugiri to Butambala in the Mpigi District to transport coffee seedlings, they stopped at the Defendant’s Petrol Station (East Zone Service Station) to fuel his truck. He was in the company of a one Kamba Rogers (his turn man) and another man provided by the owner of the seedlings to accompany them on her behalf.

That while he was at the petrol station, he instructed the pump attendant to fuel his motor vehicle with diesel worth UGX. 100, 000/= (Uganda Shillings One Hundred Thousand). After his motor vehicle was fueled, he left the station and drove for about 600 (Six Hundred) meters before his motor vehicle suddenly lost power and stopped immediately. That upon coming out to examine his motor vehicle, they (the Plaintiff and his turn man) realized that his motor vehicle had been fueled with petrol instead of diesel.

It was **PW1**'s further testimony that they immediately went back to the said East Zone Services Station and found the Defendant's employees having a conversation about how one of them had fueled a client's motor vehicle with petrol instead of diesel; and they told them it was the same issue that had brought them back. That the pump attendant who they later on came to learn was called actually acknowledged his mistake; and told them that the only person who could assist them was Mr. Namadowa Moses, the managing director. That his boss was not available by then and he gave them his boss's telephone number 0782-368972 to contact him for a possible solution.

That the Plaintiff then briefed the client (Ruth Kyesige) who had contracted him to deliver the seedlings to Butamabala about what had happened to his motor vehicle; and also shared the telephone number of the said Namadowa Moses with her. That upon her calling it, Mr. Namadowa Moses informed her that since it was too late, the Plaintiff had to wait till the next morning to help him get a solution to his vehicle.

It was also **PW1**'s further testimony that, he then tried to report the matter to the nearby Police, but he was advised to try and settle the matter amicably, which advise he heeded to. In the morning of the 5th day of April 2018 when the said Mr. Namadowa Moses arrived and they explained to him what exactly had happened, he gave them his mechanic to drain out the petrol and refill the truck with diesel. That even after this was done, the Plaintiff's motor vehicle still refused to become mechanically sound. The mechanic asked them to take back the motor vehicle to East Zone petrol station to change the fuel pump as per the instructions of Mr. Namadowa Moses. That even after the fuel pump had been changed, the motor vehicle only moved for about 650 (Six Hundred Fifty) meters and again stopped.

That when the Plaintiff went back to inform Mr. Namadowa of what had happened, they found when he and the mechanic had already left; and upon calling him Mr. Namadowa informed the Plaintiff that he could not help him anymore beyond what they had already done for him.

Even in cross examination, it was his unshaken evidence that, it was him who ordered for the fueling of the motor vehicle as he was the one seated at the driver's seat. It was after the motor vehicle had moved for about 600 (Six Hundred) meters that he realized that he had been given petrol instead of diesel at the Defendant's Petrol Station. That he went and reported the matter to the Police in Iganga on the same night that the incident happened and he was advised to go and look for the boy who fueled his motor vehicle with diesel instead of petrol and that it was more of a civil matter as opposed to being criminal in nature. Last but not least, that it was Mr. Namadowa Moses that instructed his mechanic Isma) to remove the petrol from the Plaintiffs motor vehicle and replace it with diesel, which he did and still did not work.

Furthermore, in cross-examination that, that he received mobile money to a tune of UGX. 500,000/= (Uganda Shillings Five Hundred Thousand Shillings) from a Mobile Money Agent at Musita, on the instructions of the Defendant Company to try and quell him down from filing a civil suit against it.

That all the above evidence was corroborated by **PW1** (Kamba Rogers), who in his sworn evidence in chief reiterated whatever evidence **PW2**/the Plaintiff had said in his testimony; and even in his cross examination he was unshaken and stuck to his word. For example, he maintained that, the motor vehicle that was fueled with petrol instead of diesel on the 4th day April 2018. It was UAM 629T and no other motor vehicle at around 11:30 pm when the Plaintiff ordered for his motor vehicle to be filled with diesel worth UGX. 100,000/= (Uganda Shillings One Hundred Thousand) at the Defendant Company's fueling station. That the said motor vehicle stopped after driving from the Defendant's fueling station for about 600 (Six Hundred) meters; and on checking, is when they realized that the said motor vehicle had been fueled with petrol instead of diesel.

**PW3** (Nsamba Majidu) also gave sworn evidence to the effect that, on the 4th day of April 2018, he contacted the Plaintiff to transport seedlings from Bugiri to Butambala as his own motor vehicle had already been hired for the day and was not readily available. That however on the 5th day of April 2018, the client (Madam Ruth Kyesige) called **PW3** to go and transport the said seedlings from Iganga to Butambala as **PWl's**/the Plaintiff's truck Registration Number UAM had broken down in lganga. That he used his truck Registration Number UAK 812T FUSO to transport the said seedlings to Butambala.

That the Plaintiff and **PW2** had on the 5th day of April 2024 narrated to him how they had asked for diesel worth UGX. 100,000/= from the Defendant's fueling station, only to be given petrol which led to the Plaintiff’s motor vehicle experiencing an engine knock.

**The** **Audio CD/ (PEX4):** At the end of the Plaintiff’s case, an audio CD containing recordings of Conversations between the Plaintiff and **DWI** (Mr. Namadowa Moses), in which the Plaintiff was telling the Managing Director/MD of the Defendant company/**DWI** about what exactly had happened to his motor vehicle when they came to refuel it from the Defendant's Petrol Station. The said MD assuring him that the Company was going to fix the problem; a conversation between the Plaintiff and the mechanic that was sent by **DWI** to fix the Plaintiff's car engine by removing the petrol and replacing it with diesel.

In the said conversation, the Plaintiff was telling the said mechanic how the entire fuel system was now spoilt and needed to be replaced; the mechanic was telling him/the Plaintiff to come back and pick his motor vehicle in two (2) weeks' time. The Plaintiff was telling him how that period of time was too long for him to stay without working and when they even tried starting the engine after the mechanic had fixed it, it refused to start.

The last conversation was between the Plaintiff and a one Tonny Mulesa (the manager of the fueling station in Bugiri) who had been sent by **DWI** (Namadowa Moses) to try and convince the Plaintiff not to go to civil court against the Defendant Company. That it must be stressed how Counsel for the Defendant Company put up a strong fight to try and see to it that the audio CD was not played; and listened to in court until this Honorable Court ruled that it was pertinent for the CD to be listened to.

In an attempt to rebut the Plaintiff's evidence, the Defendant filed two (2) witness statements of Namadowa Moses **(DW1);** and Mulesa Anthony before Namulesa's Witness Statement was expunged from the court record for deliberately violating a Court Order for him to move out while **DW1** was being cross-examined.

It was **DWI**'s evidence in chief that, the Plaintiff's motor vehicle Registration Number UAM 629T has never fueled from their petrol station on the said day. That all the pump attendants who worked on the said day said they had not seen the Plaintiff’s motor vehicle on that particular day. That the Police invited the Defendant's Company officials and all the pump attendants who worked on the night of 4" April 2018 **(refer to PEX3);** and reviewed the CCTV footage and concluded that there was no offence against the Petrol Station. That they were in shock that the chosen to file a case against them as they thought the matter had been resolved and settled.

However, in cross examination, **DWI** (Namadowa Moses) failed to produce any evidence that the Plaintiff did not indeed fuel from the Defendant's fueling station in Iganga on the 4th day of April 2018. Despite claiming to having had CCIV footage to that effect and also failed to satisfactorily answer as to how he came to know that the Plaintiff's motor vehicle Registration Number UAM 629T was not in a good mechanical condition before the 4th day of April 2018; and yet he claims to have never seen it, and this we find to amount to a gross inconsistency that is incurable.

That all this was in spite of him admitting at the beginning of his cross examination that it was indeed one of his voices talking to the Plaintiff in the audio CD that was played in court.

Furthermore, in being cross examined by court **DWI** admitted that one of the voices on the audio CD was actually his; and that he was actually directing the mechanic on some things. He also admitted that what he was telling court at the time totally contradicted what he had said in his witness statement. Last but not least, he also admitted that in the third audio, the parties therein were talking about the civil case.

Learned Counsel for the Plaintiff relied on the case of ***Total Uganda Limited vs Opio Charles, Civil Appeal No. 99 of 2018***, wherein Hon. Lady Justice Florence Nakachwa held thus;-

“*The Respondent who testified as* ***PW1*** *clearly stated in his testimony that upon being told by two mechanics that the engine of his vehicle got a knock and that he was given wrong fuel, he went back to the petrol station and met the station manager who gave their mechanic called Babu who went and drained petrol out of the tank and replaced it with diesel.... The above evidence cannot institute a concoction where the mobile telephone number of the Appellant's mechanic was even stated by* ***PW1*** *in his testimony to wit 0752-116439. According to the Respondent's undisputed evidence, the following day, together with his mechanic, they passed by the Appellant's fuel station in order to go along with them to assess damages together. "*

They verily believed that the above case is on all fours with the instant case and this Honorable Court should therefore so. The Plaintiffs argued that all this evidence goes to prove that the Plaintiff’s motor vehicle Registration Number UAM 629T actually did fuel from the Defendant Company's station on the 4th day of April 2018. They prayed that this Honorable Court resolves this issue in favor of the Plaintiff and he indeed has a cause of action as against the Defendant Company.

**In resolving the issues in this case,** I have carefully examined the Plaint and WSD and all the evidence led by witnesses presented by both sides together with the written submissions of learned counsel for the Plaintiff as captured above.

The first Plaintiff witness in this case was **Kamba Rogers, a male adult aged 25 years, a turn man, resident of Bugembe Budhumbuli Zone, Jinja District (*hereinafter referred to as PW1)*.** He testified that he is a turn man to the motor vehicle UAM 629T Mercedes Benz truck 6 wheels. That on the 4th day of April 2018, at around 11:50 pm, while they were on the way from Bugiri to Butambala to deliver coffee seedlings, they stopped at East Zone Service Station to fuel their truck.

That while at the Petrol Station Mr. Nsubuga Barnet, asked the pump attendant to fuel our truck with diesel worth UGX, 100,000/=. That after fueling their truck, they drove away the Petrol Station, but after about 600 meters, the truck lost power and stopped immediately. They came out to find out what was the problem but after examining it, they realized the truck had been fueled with petrol instead of diesel.

That they immediately went back to the East zone service station and found the employees having a conversation about one of them having put petrol instead of diesel in the truck. We told them that is the same issue which had brought us back, the pump attendant who had served them, they came to know him as Dennis accepted his mistake of putting petrol instead of diesel.

**PW1** continued that Dennis (a pump attendant) told them the only person who could assist them was Mr. Namadhoa Moses the managing director and his boss who was not available by then, therefore they gave them his phone number 0782368972 to contact him for a possible solution. In the meantime, they briefed their client of what had happened and she contacted Mr. Namadhoa Moses using her phone; and he told her that since it was late they wait until early morning when he shall be available to get for them a solution.

That they also reported the matter to the nearby Police Station, but they were told to try to solve the matter amicably. That in the morning at around 8:30am when Mr. Namadhoa came, they briefed him on everything that had happened and he gave them his mechanic to drain out the petrol fuel and refill the truck with diesel.

That after the mechanic changing the fuel, the truck still failed to become mechanically sound, he then asked us to take back the motor vehicle to East Zone Petrol Station to change fuel pump per the instruction of Mr. Namadhoa. After the changing of the fuel pump, the motor vehicle truck, only moved for around 650, meters from the petrol station and it stopped. When the truck stopped, they went back to Mr. Namadhoa to inform him but he told them that is the assistance he could offer and therefore he could not go further than that.

**PW1** added that by this time the client (Madam Ruth) had become impatient; Mr. Nsubuga Barnet decided to hire an alternative truck to transport the seedlings. After offloading the coffee seedlings, they had to push the motor vehicle truck to Musta KK Petrol Station for safe parking.

**During cross-examination, PW1** answered that he was in court to give evidence on behalf of Mr. Barnett. That he began working as a turn man in 2016 and the vehicle in question registration number UAM 629T. The vehicle in question arrived at Defendant's Company at around 11:50p.m., Nsubuga Barnet is the one who ordered for fueling of this motor vehicle whilst **PW1** was seated in the cabin. That he realized that the motor vehicle had petrol instead of diesel after they had moved a distance of 6 meters then vehicle stopped. That he did not see with his naked eye the pump attendant putting petrol instead of diesel, but knew that he had given them fuel but they did not know which type of fuel. They realized later that they had been given petrol after the vehicle stopped.

**PW1** then changed and stated that he saw when the pump attendant gave them the wrong fuel when he saw as he was refueling the vehicle; and confirmed that yes, he saw him putting petrol instead of diesel, but did nothing but they just set off and later just saw the vehicle stopping. That at that particular moment he did not ask the pump attendant why he was putting petrol instead of diesel because when they had reached, they had asked for fuel and this man fueled the vehicle. That after moving like 600 meters, it is then that they discovered that this man had given them petrol instead of diesel when the vehicle had stopped.

That when the motor vehicle stopped it is when he realized that it was petrol and not diesel that had been fueled in their motor vehicle; and that was the truth. That he wanted court to take and that at the material time of refueling he did not know which type of fuel was being put in the motor vehicle and only discovered when it was stalled and when they checked, they discovered that it was petrol when they checked

That at the time of refueling, Mr. Barnet and himself were seated in front in the cabin. That **PW1** had personally never talked to Mr. Namadhoa and that when the motor vehicle stopped, they returned to the Petrol Station and left it where it had stopped. That even him as a turn man, he escorted his boss.

**In Re-examination**, **PW1** confirmed that at the time of fueling the vehicle, he was seated in front in the cabin and it was Mr. Nsubuga Barnet who ordered for the refueling of the vehicle. That by the time they left the Fuel Station, he did not know the type of fuel the pump attendant had given them and only realized after the vehicle stopping.

The second Plaintiff witness in this case was **Nsubuga Barnet, a male adult aged 49 years, a businessman (*hereinafter referred to as PW2)*.** He presentedthe following documents, which were admitted as Exhibits:-

1. A parts estimate invoice from Spear Motors for six-nozzle holder and injection pump exhibited as **PEX1**. 2. Receipt for breakdown services exhibited as **PEX 2.** 3. Letter dated 9th April, 2018 from Iganga Police Station addressed to the manager of the Defendant’s Company exhibited as **PEX .3** 4. Audio recording conversation between the Manager of the Defendants Company and **PW2** exhibited as **PEX 4.**

In his evidence in chief captured in his Witness Statement, **PW2** testified that he is the owner of the motor vehicle UAM 629T Mercedes Benz truck 6 wheels. That on the 4th day of April 2018, at around 11:50 pm while they were on the way from Bugiri to Butambala to deliver coffee seedlings, they stopped at East Zone Service Station to fuel our truck. He was in company of his turn man Kamba Rogers and another gentleman whose name he could not remember whom the client had instructed to accompany them on her behalf.

That at the Petrol Station, **PW2** asked the pump attendant to fuel his truck with diesel worth UGX, 100,000/=. After fueling the truck, he drove away from the Petrol Station, but after about 600 meters the truck lost power and stopped immediately; and when they came out to find out what was the problem and after examining it, they realized the truck had been fueled with petrol instead of diesel. Immediately, they went back to the East Zone Service Station and found the employees having a conversation about one of them having put petrol instead of diesel in the truck; and they told them that is the same issue that had brought them back.

That the pump attendant who had served them, whom they came to know as Dennis accepted his mistake. Dennis (pump attendant) told them that the only person who could assist them was Mr. Namadhoa Moses the managing director/his boss who was not available by then, and he gave **PW2** his phone number 0782368972 to contact him for a possible solution.

**PW2** briefed their client one Ruth Kyesige who had given them the work of transporting coffee seedlings of what had happened and she contacted Mr. Namadhoa Moses using her phone and he told her that since it was late, they should wait until early morning when he would be available to get for them a solution. That he also hired a total number of 10(ten) people to load and offload the coffee seedlings from his truck into another vehicle he hired to transport the seedlings to Butambala.

That after offloading the coffee seedlings, they had to push the motor vehicle truck to MUSTA KK Petrol Station for safe parking where it stayed until he removed it on the 1st day of January 2019. After **PW2** had got an alternative means of transport for his client and they had left, he tried to have this matter solved amicably, by reaching the mechanic Mr. Namadhoa Moses had given them on 0701266214 and he himself on 0392964837 and 0782368972 in vain.

That on 8/4/18 **PW2** reported the matter to Iganga Central Police vide **SD 08/04/04/2018** and the Police summoned the manager of the Petrol Station; and the pump attendants who worked on the day of 4/4/18 to the Police Station, but it was only the manager who showed up and refused to make a statement. **PW2** was later called by a person who identified himself as the manager of the Defendant that he had been sent Shs. 500,000 to work on the truck in order to solve the issue of the truck amicably.

That on 7/5/ 18 the Police Inspector of motor vehicles released the Inspection Report of the motor vehicle UAM 629T Mercedes Benz Truck, which revealed that it was not in a dangerous mechanical condition before the incident. That on 17/5/ 18, **PW2** approached Spear Motors Ltd. to establish the would be parts estimate cost and labour to rectify the mechanical problem of his motor vehicle UAM 629T Mercedes Benz Truck, something they did for him.

On 1st January 2019, **PW2** decided to transport the motor vehicle motor vehicle UAM 629T Mercedes Benz Truck using a break down to Kampala where he has his fixed place of abode to cut on the parking costs. That it was due to the negligence of the defendant that he has had to incur costs in order to repair, transport and pay parking costs for the truck.

**PARTICULARS OF SPECIAL DAMAGES**

1. Parts estimate from spear motors…………………………74,971,965 2. Transport for hiring another car to transport Coffee seedlings

from Iganga to Butambala …………………………………..800,000

1. Labour costs for loading and off-loading seedlings on alternative truck…………………...200,000 2. Police Vehicle Inspection Report……………………………103,000 3. Breakdown services to move truck from Iganga to Kampala ……………………………………...1,825,000 4. Parking fees from 5th April,2018……………………………. 600,000

**Total** 78,499965

**PW2** asserted that he has lost business because the said truck is not working; and prayed for general damages for the acts of the defendant in fueling his car with petrol instead of diesel.

The third Plaintiff witness was **Nsamba Majidu, a male adult aged 42 years, a driver, resident of Buyala in Budondo in Jinja District (*hereinafter referred to as PW3)*.** In his evidence in chief, he testified on 4th day of April 2018 that he contacted Mr. Nsubuga Barnet totransport for Madam Ruth Kyesige coffee seedlings, using hismotor vehicle UAM 629T Mercedes Benz truck from Bugiri toButambala, since he had already hired his vehicle to another customer. On the 5th day of April 2018, **PW3** was contacted with Madam RuthKyesige to deliver the same coffee seedlings instead, due to amechanical problem which had happened to Mr. Nsubuga Barnet's truck.

**PW3** drove the truck he was driving at the moment, Reg. No. UAK 812TFUSO to the site to load the seedlings and on reaching the petrolstation called East Zone Service Station and about 600 meters from it, he found the truck motor vehicle registration No. UAM 629T MercedesBenz broken down. That when asked **PW2** and **PW1** what hadhappened, they told him that while they were on their way from Bugirito Butambala, they stopped at East Zone Service Station to fuel thetruck. Mr. Nsubuga Barnet had asked the pump attendant to fuelthe truck with diesel worth 100,000 shillings, but as they drove away at about 600 meters from the Petrol Station the truck lost power and stopped immediately. When they came out to find out what was the problem, they realized the truck had been fueled with petrol instead of diesel.

That **PW2** narrated to **PW3** that he hired a total number of 10 (ten) people to load and offload the coffee seedlings from his truck to the FUSO he was driving. After they had finished off loading and loading the coffee seedlings, **PW3** drove away to Butambala to deliver them and left **PW2** trying to reach the owner of the petrol station again in order to help him to work on his truck.

**The Plaintiff closed his case.**

The Defence case opened with **Namadowa Moses** **a male adult aged 47 years, a catholic, resident of Butambala Zone, Iganga Municipality, Northern Division, Iganga District** ***(herein after referred to as DW1).*** His evidence in chief captured in his Witness Statement and he confirmed that managing director of the Defendant Company. He testified that on the 9th day of April 2018, **DW1** received Summons from Police inviting the manager at Iganga Police Station as a result of the Plaintiff complaining that his motor vehicle was refueled with petrol instead of diesel the night of 4th April 2018.

He summoned the pump attendants and the manager who worked during the night of 4th day of April 2018, who worked included Siliman, Wasswa Ronald and Mulesa Anthony and inquired from them what had happened. That **DW1** honored the invitation and a Police Officer called Mr. Ivan Musasizi was the Investigation Officer who interviewed the Manager and pump attendants who worked on the night of 4th April 2018, viewed sales reconciliation book for 4th April 2018; and also the CCTV footage which did not indicate that the Plaintiff's said motor vehicle refueled from the Defendant's Petrol station.

That after sometime, they were informed that the Police File was closed due to

lack of evidence. That they knew that this had settled the Plaintiffs complaints against the Defendant Company. **DW1** was surprised to find out that on the 8th day of May 2019, **PW2** filed a case against the Company and yet they had told him that the saidDennis was not an employee and has never worked at the petrol station as apump attendant. That **PW2’s** motor vehicle, Mercedes Benz truck registration numberUAM 629T was never refueled from the Defendant's service station on the 4th day of April 2018.

**DW1** maintained that refueling a petrol engine with diesel cannot happen at the Defendant'sService Station because prior to fueling, motorists are asked to cross checkwith the pump and confirm the right fuel and amount of money paid before

refueling is done. That **PW2's** assertion and claim is false because, at the Defendant's Service Station with the stated procedure in Paragraph 11 above, the anomaly would have been foreseen early enough to avoid the alleged mishap.

Further, the said Dennis is not known to East Zone Service Station Limited, and is not its employee and the Defendant Company employs very able pump attendants who cannot be negligent as alleged by the Plaintiff. He has never instructed the Defendant's mechanic to work on the Plaintiff's motor vehicle as alleged and doubted the Plaintiff's motor vehicle being in a good mechanical condition as the damage requiring repairs of Ugx. 74,000,000/= (Uganda shillings Seventy-Four million) could not be caused by what is alleged by the Plaintiff. That he has never received any communication of intention to sue and more-so the Defendant denies the Plaintiff has any cause of action against it for which it prays for the suit to be dismissed with costs.

**During cross-examination**, **DW1** confirmed on the audio CD that was played in court on the 7th December 2023, the voice therein was for his voice; and Ben was the one who called him and therefore had nothing to change, but the audio had falsehood in it. **DW1** confirmed that indeed he summoned pump attendants and the manager who worked during the night of 4th April 2018 who included Siliman, Waiswa Ronald, Mulesa Anthony.

That also the Police Officer who viewed the CCTV cameras did not indicate the Plaintiffs said motor vehicle fuel from their Petrol Station; and therefore, he did not make a report to that effect. That they were also no longer in possession of CCTV camera (footage) because the camera has a limit which it can contain others it deletes which is automatic for the camera keeps records for 10 days after which it deletes the information.

That the Police Officer came to view CCTV footage following day after the allegations of **PW2** and after 5 days it returned to the Defendants Station; and the camera deletes footage after 10, Police came the first time and second time. That there is was no evidence so there was no case because the Police did not see the motor vehicle and that **DW1** did not see it important to save that footage anywhere for future purposes because the Police made him to lose interest that is how they did not save anywhere.

**DW1** acknowledged that anyone can make mistakes, but that he couldn’t vouch for others to the same. That he had heard of such an incident as the one, which had brought them to court, but that it had never happened at his Petrol Station, but affirmed that the CCTV did no see **PW2**’s motor vehicle on the 4th April 2018. He was not at the Station on that day and he got to know of the **PW2’**s motor vehicle number plate when Police came to him with that number plate.

**DW1** confirmed that it is the duty of the pump attendant to know the fuel to put in the cars, but on direction of the vehicle owner. That he had never instructed any mechanic to fix the **PW2**’s car and the conversation on the audios was between a mechanic and the Plaintiff Nsubuga Barnet; and he wasn’t that person in the audio recording.

He also confirmed that the voice was for Nsubuga Barnet, but the other one **DW1** did not know to whom it belonged. That he has never tried to settle the matter in court nor had he ever instructed his manager Mr. Mulesa Anthony to try; and settle the matter with Barnet. **DW1** affirmed that he had never seen **PW2**’s car but that he knew the said alleged damages could not cost such an amount because he buys vehicles and a transporter as well.

**In Re Examination, DW1** responded that he got to know about the amount of costs in repairs of 74 million from the Plaintiff’s pleadings. The suit was filed against the Defendant in 2019 and that the alleged dispute occurred on 4th April 2018 and he made his Witness Statement in 2019; but he had forgotten the month. On looking at a copy of the Witness Statement, **DW1** stated that he had made it on 24th January 2020.

**DW1** admitted that he did not include CCTV evidence because when the Police came twice checking the camera and told them there is no case here, they did not bother to save the footage or record it because Police came in 2018 and told them there is nothing. That they did not take an initiative to record and sued and the Plaintiff sued them in 2019 when the footage was deleted. There are books which we used to record and balance from. That the Police took the file to State who looked into the file and said there wasn’t enough evidence. That he had a conversation with **PW2** and one of the voices was his and there was some of the things which **PW2** was asking **DW1** and that he was directing him.

**In Questions by court, DW1** confirmed that he was part of that conversation of the audio played in court. That he did not know the different between civil and criminal matter. That he also didn’t know that the Plaintiff had no constraint to file a civil matter where the criminal matter may not be proved and a civil matter may be preferred on the facts. **DW1** maintained that hehad never taken any steps to resolve the matter in court and that the discussion with his lawyer was about the suit which **PW2** had brought. He did not know the rational of why they were discussing it and that they were discussing the suit of **PW2**, which he had instituted in court for compensation of 74 million.

**The Defence closed its case after expunging the Witness Statement of his Witness who refused to move out of Court when directed by Court.**

**In order to resolve the first issue,** I have carefully analyzed all the evidence as captured above. Learned counsel for the Plaintiff in their submissions argued that the fact that **DW1** admitted that one of the voices on the audio CD was his, wherein he was directing a mechanic on some things, all the evidence goes to prove that the Plaintiff’s motor vehicle Registration Number UAM 629T actually did fuel from the Defendant Company’s Station on the 4th day of April, 2018. They prayed that the issue be resolved in the affirmative. That **PW1** while testifying in his evidence in chief that on the 4th day of April 2018 at around 11:50 pm on their way from Bugiri to Butambala stopped by the Defendants Petrol Station to fuel the truck; and after fueling and moving a distance of 600 meters, the truck suddenly stopped and the realized it was fueled with petrol instead of diesel.

Further, **PW1** in his testimony **during cross-examination**, testified on page 9- 10 in lines 20-22, that he saw the fuel attendant fueling their vehicle with petrol instead of diesel and decided to do nothing and they set off only later for the vehicle to stop.

Further, in the testimony of **PW2** testified that on the night of 4th April, 2018, he stopped at the Defendants petrol station and his motor vehicle fueled with petrol instead of Diesel. Again in the testimony of **DW1**, the Managing Director of the defendant under paragraph 6 of his witness statement expressly denies that the Plaintiff motor vehicle refueled from their Petrol Station as per the interview the police man of Iganga had with the employees who worked on the fateful night and also the CCTV footage, which never showed the Plaintiffs motor vehicle UAM 629T fueling at the Defendants station.

I have critically analyzed the facts leading to the Plaintiff’s motor vehicle breaking down. The evidence of **PW2,** the registered owner of motor vehicle Reg. No. UAM 629T is corroborated by **PW1** and **PW3** all of whom saw what took place on that fateful day. It was the testimony of **PW1** during cross-examination that he witnessed the pump attendant fueling the car with the wrong fuel but still the truck broke down a short distance from the said Petro Station.

I have also examined the case law relied upon by learned counsel for the Plaintiff on Negligence; and I agree that it is relevant to the facts of this particular case. I have also analyzed the Plaintiff’s evidence *vis a vis* the defence of **DW1** the Managing Director of the Defendant Company and I have found that he was not present at the scene when the Plaintiff’s motor vehicle Reg. No. UAM 629T stopped to fuel at his Petrol Station. His evidence is full of generalized denials. He alleged that there were CCTV cameras footage, but he never produced in his defence; instead, he claimed that it had been deleted after 10 days.

Further, although **DW1** claimed that Police Officers from Bugiri examined the CCTV footage and found that the said motor vehicle Reg. No. UAM 629T was never at his Petrol Station, he never called any of the alleged Police Officers to prove his assertions that the said motor vehicle was not ta his Petrol Station. The position of the law is that he who alleges must prove, in this case, it was incumbent upon the Defendant to lead convincing evidence of the existence of the said CCTV footage and or findings by the Police Officers, but he miserably failed to do so. This left the Plaintiff’s evidence as corroborated by his witnesses **PW1** and **PW3** unshaken.

It is not denied that this is indeed a Civil Matter and not a Criminal Case as **PW2** was advised at Police; and following up on that, the Police had no further business with this matter, but this in itself did not remove civil liability from the Defendant in this case. The evidence reveals that the Plaintiff **(PW2)** was not known to **DW1** the managing director of (East Zone Service Station). He only got to talk with him after his names and identity were revealed to him by his employers. I therefore find that he had no reason to bring an action against him other than in the course of the business translation that took place at his Petrol Station.

In addition, **PW2** testified that **DW1** got him a mechanic to fix the problem. **PW2** in paragraph 11 stated that the mechanic drained out the fuel; and refilled the truck with diesel, but still vehicle failed to become mechanically sound. This means that all the interventions made by the Defendant staff, which he now denies in Court never resolved the damage that caused to the Plaintiff’s motor vehicle.

A critical analysis of all the evidence in this case leads me to conclude that there was a clear relationship of a service provider and customer between the Plaintiff and Defendant in this case. The case of ***Total Uganda Limited vs Opio Charles, Civil Appeal No. 99 of 2018***, relied upon by learned counsel for the Plaintiff is indeed on all fours with the instant case. The clear connection between fueling the Plaintiff’s motor vehicle with the wrong fuel i.e. petrol instead of diesel and its eventual breakdown was very clear from the Plaintiff’s evidence.

I have also found convincing evidence to show that the engine of the Plaintiff’s motor vehicle was badly affected to the extent that it got completely knocked down as a result. See **PEX1**, a parts estimate invoice from Spear Motors for six-nozzle holder and injection pump. **PW2** testified that he had toacquire new parts from Spear Motors after the Defendant failed to correct the damage caused to his motor vehicle.

The motor vehicle truck failed to become mechanically sound even after draining the fuel as is the normal standard procedure in such incidences for the correction of the mishap to be blamed on the Defendants. This Honourable Court also took time to listen to and analyze the **Audio CD/(PEX4)** which was played loudly and clearly in court, thanks to modern equipment installed in Court. The audio CD containing recordings of conversations between the Plaintiff and **DWI** (Mr. Namadowa Moses), in which the Plaintiff was telling the Managing Director/MD of the Defendant company/**DWI** about what exactly had happened to his motor vehicle when they came to refuel it from the Defendant's Petrol Station was not denied by **DW1**. **DW1** confirmed that it was indeed his voice and that he was speaking to **PW2**, although he later in cross examination attempted to deny this.

The assurances he made to the Plaintiff that to the effect that the Company was going to fix the problem were also clearly recorded. **See Audio CD/(PEX4)**. It corroborates a conversation between the Plaintiff and the mechanic that was sent by **DWI** to fix the Plaintiff's car engine by removing the petrol and replacing it with diesel. As rightly submitted by learned counsel for the Plaintiff, in the said conversation, the Plaintiff was telling the said mechanic how the entire fuel system was now spoilt and needed to be replaced; the mechanic was telling him/the Plaintiff to come back and pick his motor vehicle in two (2) weeks' time. The Plaintiff was telling him how that period of time was too long for him to stay without working and when they even tried starting the engine after the mechanic had fixed it, it refused to start.

The last conversation was between the Plaintiff and a one Tonny Mulesa (the manager of the Fueling Station in Bugiri) who had been sent by **DWI** (Namadowa Moses) to try and convince the Plaintiff not to go to civil court against the Defendant Company.

Although **DW1** in his evidence in chief denied that the Plaintiff's motor vehicle Registration Number UAM 629T has ever fueled from their Petrol Station on the said day; and that all the pump attendants who worked on the said day said they had not seen the Plaintiff’s motor vehicle on that particular day, **DWI** (Namadowa Moses) failed to produce any evidence to rebut that of the Plaintiff and his witnesses who all corroborated each other that they fueled at the Defendant's Fueling Station in Iganga on the 4th day of April 2018.

The position of the law is that he who alleges must prove. In this case, **DW1** who alleged that the CCTV footage for that fateful day revealed that motor vehicle Registration Number UAM 629T never fueled from their Petrol Station, but he miserably failed to prove the existence of this CCTV footage. To make matters worse, even his alleged employees and Police Officers who allegedly viewed the said CCTV footage never appeared to testify on his behalf. The Letter dated 9th April, 2018 from Iganga Police Station addressed to the Manager of the Defendants Company exhibited as **PEX .3** confirms this fact. This left the evidence of **PW2** corroborated by **PW1** and **PW3** intact and unrebutted. More so, **DW1**’s defence was further watered down by the **Audio CD/(PEX4)** inwhich he admitted was in his voice. The contents were clear and the person he was speaking with was undeniably **PW2** and later one of his employees.

Based on the above, my findings are that there is conclusive evidence to prove that Plaintiff fueled his Truck Mercedes Benz Truck UAM 6291 from the defendant's Fuel Station on the evening of 5th April 2018. This issue is resolved in favor of the Plaintiff.

**ISSUE NO. 2: Whether the Defendant’s employees were negligent, when they fueled the Plaintiff's truck with petrol instead of diesel?)**

Learned Counsel for the Plaintiff relied on the case of ***Donoghue vs Stevenson [1932] AC 562,*** whichcreated the modern concept of negligence as decided by the House of Lords; and with it came along the need to prove that:-

1. The Defendant owed the Plaintiff a duty of care; 2. The duty of care was breached; and 3. The Defendant was responsible for the breach.

Furthermore, that according to **Winfield and Jolowicz,** "*Negligence is the breach of a legal duty to take care which results in damage, undesired by the Defendant to the Plaintiff".*

They strongly believed that having proved from the foregoing evidence and discourse that the Plaintiffs motor vehicle was indeed fueled from the Defendant's fuel station; there is a strong case that the Defendant's employees were negligent. This is so because, they owed a duty of care to the Plaintiff to put the right fuel in his motor vehicle and they breached this duty when they chose to fuel his motor vehicle with petrol instead of diesel regardless of whether it was intended or not. This then takes us to the issue of whether the Defendant Company was vicariously liable for the negligent acts of its employees.

They also relied on **Black's Law Dictionary 11th Edition (2019)** defines vicarious liability as:-

*“…liability that a supervisory party (such as employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties”.*

They submitted that Justice Ssekaana Musa in the case of ***Akech Rose vs Attorney General. Civil Suit No. 363 of 2018*** cited with approval the case of ***Okupa vs Attorney General and 13 Others MC No.14 of 2005 [2018] UGHCCD*** in which Batema N. D. A defined vicarious liability to mean *"a legal doctrine where a person, himself blameless, is held liable for another person's conduct ".* Court further went on to State that ‘*the rule is often justifed by reference to the latin maxim qui facit per se" meaning that he who acts through another acts himself'.*

That Court in **Okupa's case (supra)**, further stated that under the doctrine of vicarious liability, an employer is liable for the acts of his/her employees done in the scope or that employee's duty.

Further that, for the doctrine of vicarious liability to apply, there must be three essential ingredients;

1. There must be a relationship of employer and employee; 2. The tort must be committed by the employee; 3. In the course of business.

That, *‘an act nay be done in the course of a servant 's employment so as to make his master liable even though it is done contrary to the orders of the master and even if the servant is acting deliberately, wantonly. Negligently or criminally for his benefit nevertheless if what he did is merely a manner to carrying out what he has been employed to carry out, then his master is liable"*

They relied on the case of ***Total Uganda Limited vs Opio Charles (supra),*** where it was held that:-

*"The pleading clearly brought out the tort of negligence on the part of the fuel attendant for which the employer is vicariously liable. Furthermore, the fact that the Appellant had offered to compensate the Respondent with UGX. 2,000,000 during their attempt to amicably settle the matter is an indication that it had admitted liability had the Respondent not declined to take the said offer. The Appellant is therefore estopped from denying liability to the Respondent since the negligent action of its pump attendant led to the damage of the Respondent's vehicle. "*

They therefore submitted that this Honorable Court not only finds that the Defendant's employees were negligent when they fueled the Plaintiff's motor vehicle with petrol instead of diesel, but that the Defendant Company is vicariously liable for this gross negligence.

**In resolving this issue,** it is noted that Negligence is proved by satisfying a three-part test:-

1. The existence of a duty of care owed to the plaintiff by the defendant; 2. A breach of that duty by falling below the appropriate standard of care; and 3. Damage caused by the defendant’s breach of duty that is not too remote a consequence of the breach.

For an action in negligence, the defendant must owe a duty of care to the Plaintiff in the given circumstances. In ***Donoghue v Stevenson [1932] AC 562*** (relied upon by learned counsel for the Plaintiff), Lord Atkin stated that:-

*“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”*

……………….

*“The method of determining the existence of a duty of care is the so-called "neighbor principle." "Who then in law is my neighbor?... persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected so when I am directing my mind to the acts or omissions in question"* ***(see Donoghue v. Stevenson [1932] AC 562)****.*

The defendant should contemplate that his or her actions may have an effect on potential plaintiffs. Therefore, where possible harm is foreseeable, a duty of care then exists. When determining where from the facts of a case there existed a duty of care, first it should be established that there is sufficient proximity between the defendant and the plaintiff for damage to be a foreseeable possibility of any careless act or omission (such that, in the reasonable contemplation of the former, carelessness on his or her part may be likely to cause damage to the later.

If this is established then it is only for the court to decide whether or not there are any policy considerations that might either limit the scope of the duty or remove it altogether. ***(*See *Anns v. Merton London Borough Council [1978] AC 728)***; or the class of person to whom it is owed or the damages to which a breach of it may give rise. Alternatively, whether or not it is fair, just and reasonable in all the circumstances to impose a duty of care ***(see Caparo v. Dickman [1990] 1 All ER 568)***.

Relating the above to the instant case, it was a question of mixed fact and law whether the Defendant’s pump attendant knew or should have known of the danger of refueling a diesel engine powered vehicle with petrol. This court has to approach this question having regard to the duties of the ordinary, reasonable and prudent pump attendant.

As regards the duty of care, it is only reasonable to expect an ordinary, reasonable and prudent pump attendant to foresee mix-ups, which occur because of distraction as claimed in this case; and failure to adhere to the Plaintiff’s demand as to which fuel was required.

What is required in ***Donogue vs Stevenson’s case (supra)*** is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of “proximity" or "neighborhood". The situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.

The basic requirement of foresight is simply that the defendant must have foreseen the risk of harm to the plaintiff at the time he or she is alleged to have been negligent.

In this particular case, the pump attendant's primary duty is to dispense motor fuels, motor oils and services normally related to the dispensing as requested for by the client. The pump attendant must not only be proficient in the operation of dispensing equipment, but also should be capable of discerning the correct motor fuel for all types of vehicles requiring to be refilled.

The purpose of these preventative measures places the burden of re-fueling with the correct type of fuel lies with the pump attendant and not the customer. An ordinary, reasonable and prudent pump attendant should be able to match the fuel type of the vehicle with the corresponding labels on the fuel pump. In the circumstances of this case, the Plaintiff adduced substantive evidence to prove that they refueled from the Defendants fuel station.

The **audio CD/ PEX4** in a conversation with **DW1** the Managing Director of the Defendant clearly confirms this fact. Although the Defendant in their WSD deny all the averments in the plaintiff’s Plaint. Either way **PEX 4** clearly reveals that the Defendants pump attendant fell below the standard of behavior that was required in the discharge of his duty in the circumstances considered as a whole.

The facts as presented to me reveal that there was negligence on the part of the pump attendant of the Defendant. There was sufficient proximity between the Plaintiff and the Defendant’s pump attendant for damage to be a foreseeable possibility of any careless act or omission on the part of the pump attendant.

Once the Plaintiff has shown the existence of a duty of care and proved that it was breached by falling below the appropriate standard of care, he still has to prove that the Defendant's negligent act or omission actually caused the damage.

From the available evidence, court should be able to determine, with reasonable probability, the causal relationship between the event and the condition, by adducing evidence of that act or omission that produced foreseeable consequences without intervention from anyone else. As with the other two elements of negligence, the burden is on the claimant to prove the causal link on a balance of probabilities. In other words, the plaintiff will have to show that the damage was the natural and direct consequence of the proximate cause, without which it would not have occurred. This call for nothing more than proof tending to eliminate other possible causes of the occurrence, to indicate that the negligence of which that occurrence speaks is probably that of the defendant. This may actually be quite difficult to do, particularly where the incident leading to the damage has been the result of multiple causes.

In the instant case, although the Defendant’s employee drained the fuel of the vehicle as standard operating procedure as required in such situations on directions of **DW1** its Managing Director, but the Plaintiff’s vehicle failed to get to better mechanical condition. This brings into paly the “But for” test. The Defendant will only be liable in negligence if the Plaintiff would not have suffered the damage "but for" the Defendant’s negligent act or omission.

If the harm would not have occurred "but for" the breach of duty, the breach is deemed to have caused the harm. If the harm would have occurred anyway even if the defendant had not been in breach, the breach is not a cause of the harm ***(see Cork v. Kirby MacLean Ltd [1952] 2 All ER 402).***

Where there exists more than one possible cause of damage or harm, the plaintiff does not have to show that the defendant’s actions were the sole cause of the injury suffered. Instead, it must simply be shown that the defendant’s actions materially contributed to the harm

An act contributes materially when its causative effects are in operation until the moment of damage. The term "**proximate cause"** means a cause which in a direct, natural and continuous sequence, unbroken by any superseding cause, produces the damage, injury or loss complained of and without which such damage, injury or loss would not have happened. However, where the court finds that it is impossible to determine this with accuracy, the suit will fail. In the case of ***Wilsher v. Essex Area Health Authority [1988] AC 1074***, a baby after being delivered was given excess oxygen as a result of the admitted error of the doctor and the baby then suffered blindness through *retrolental fibroplasia*.

The House of Lords identified that the excess oxygen was just one of six possible causes of the condition and therefore it could not be said to fall squarely within the risk created by the defendants. The court would not impose liability on the defendant in those circumstances.

In the current suit, fixing the error ordinarily involves; draining the car's fuel tank, **PW2** Nsubuga Barnet testified that this is exactly what was done in this case on instructions of the managing director, but still, without the motor vehicle being moved again, the engine got damaged. This means that this was done negligently and most probably without following clearly set procedures on how this should be done.

In the case of ***Oil Energy Ltd vs Komakech Robert, Civil Appeal No.011 of 2019***, Hon. Justice Steven Mubiru, while determining the question of whether the damage to the vehicle was caused by the appellant's employee's negligent act stated that it *‘necessitated a somewhat more in-depth analysis of the evidence. In my view, neither the testimony of PW2 Oryem Frank nor any other evidence on the record that the court might have considered had it asked the appropriate question, supports the conclusion on a balance of probability that the breakdown of the engine was caused by the re-fueling mishap rather than natural wear and tear.*

*Adducing evidence of negligence before the court is not enough by itself to establish liability, for it also must be proven that the negligence was a proximate, or legal, cause of the event that produced the harm or loss sustained by the plaintiff. Although there may be more than one proximate cause, where, as in this case, the facts proven show that there are several possible causes of the damage in issue, for one or more of which the appellant was not responsible, where it is pure matter of guesswork where the greater probabilities lie, and it is just as reasonable that the damage was the result of one cause as the other, any of which could be a substantial cause of the events which produced the damage, the respondent would not recover since he would have failed to prove that the negligence of the appellant caused the damage. A court will not guess between two equally probable causes. In the instant case, proof was not furnished tending to eliminate other possible causes of the damage, so as to indicate that the negligence of which that damage speaks is probably that of the appellant. Had the trial court properly directed itself, it would have found that the respondent did not adduce evidence sufficient to establish on a balance of profanities that the damage to the car was caused by the appellant's negligence’*.

The Plaintiff in this case produced a Vehicle Inspection Report for accident where the remarks were malicious damage to property. The parts estimate as per **PEX.1** clearly indicates that there was irreversible damage to the Plaintiff’s motor vehicle. This coupled with the factual evidence of the Plaintiff and his witnesses on how this state of affairs came to be, I agree with the conclusions drawn by learned counsel for the Plaintiff; and find that the Defendant’s employees were negligent, when they fueled the Plaintiff's truck with petrol instead of diesel.

This issue is resolved in favor of the Plaintiff.

**ISSUE NO.3: Remedies available to the parties.**

1. The Plaintiff sought for special damages to a tune of UGX. 78, 499. 965/= (Uganda Shillings Seventy-Eight Million Four Hundred Ninety-Nine Thousand Nine Hundred Sixty-Five) being special damages for, costs to repair his Motor Vehicle (herein after referred to as M/V), costs for storing in Iganga and towing his M/V from Iganga to Kampala.

Learned counsel for the Plaintiff relied on Justice Hon. Musa Ssekaana in ***Nasif Mujib & Anor vs Attorney General, C. S No. 160 OF 2014*** when he held that: "*special damages were defined in the case of* ***Mugabi John vs Attorney General C. S No, 133 of 2002*** *as those damages that relate to the past loss calculable at the date of trial and encompass past expenses and loss of earning which arise out of special circumstances of a particular case’.*

They further stated that the law relating to special damages was settled in ***W. M Kyambadde v Mpigi District Administration [1984/HCB*** *holding that the guiding principle is that special damages must be strictly pleaded and strictly proved.*

*That the ipse dixit (that is, evidence of plaintiff) simpliciter led in proof special damages must be comprehensive and credible: and it must incorporate all the relevant conditions required in proof of special damages. Where various items are claimed under special damages, the Plaintiff is entitled to be awarded any of the items which he could prove with sufficient evidence, even if he is not able to prove other or all the items*. **See *Lydia Mugambe v Kayita James & A’nor. HCCS No. 339 of 2020****.*

They adduced evidence to the effect that upon his motor vehicle breaking down, he had to hire motor vehicle of **PW3 Nsamba Majidu** at a cost of UGX. 800,000/= (Uganda Shillings Eight Hundred Thousand); and paid ten **(10**) people a sum of UGX. 200, 000/= (Uganda Shillings Two Hundred Thousand) to help in the transferring of the seedlings from his motor vehicle to the one of **Majidu Nsamba.** All this was contained in **PID No.** which is an agreement between the Plaintiff and Majidu Nsamba dated the 5th day of April 2018.

Furthermore, that the Plaintiff alluded to an agreement between the Plaintiff and a one Andrew Kwesiga being an acknowledgement of receipt of UGX. 600,000/= (Uganda Shillings Six Hundred Thousand) as parking fees. They also led evidence on **PEX2**, which was a receipt dated 1st of January 2019 from a breakdown service provider who towed the Plaintiff's motor vehicle from Musita in Mayuge district where the motor vehicle had been parked all the time to Kampala. And even if he was questioned as to why the receipt was indicating another Registration Number UAU 970Q, he clarified that misnomer when he clearly stated that it was an error on the part of the person that wrote the receipt who wrote the registration Number of the motor vehicle that towed his motor vehicle, instead of writing the Registration Number of his motor vehicle. This does not negate the fact that the Plaintiffs motor vehicle was actually towed from Musita to Kampala at his own cost.

The Plaintiff also had to pay for a Police Motor Vehicle Inspection Report admitted as **PEX I**, which he actually obtained at a cost of UGX. 103,000/= (Uganda Shillings One Hundred and Three Thousand); and the same was exhibited in court as **PEX5**, dated 7th May 2018.

That even if they did not produce the receipt leading up to the Motor Vehicle Inspection Report, this Honorable Court takes cognizance/judicial notice of the fact that the report cannot be issued without being paid for and in turn grant the Plaintiff special damages for this too.

Last but not least, the Plaintiff produced in evidence: a quotation for repair of his motor vehicle from Spear Motors to a tune of UGX. 74,971,965/= (Uganda Shillings Seventy-Four Million Nine Hundred Seventy-One Thousand Nine Hundred Sixty-Five). They wished to remind this Honorable Court that this was a quotation that was made over six (6) years back; and is therefore subject to inflation at the current market price and strongly believe that that price must have risen way above that price that was quoted back then.

They prayed that this Honorable court finds that the Defendant Company is liable for this aspect of the special damages as its workers were responsible for fueling the Plaintiff's motor vehicle with petrol instead of diesel, which led to his motor vehicle's engine knock.

**General Damages;** The Plaintiff also prayed for general damages for the inconvenience and suffering occasioned to him due to the actions of the Defendant's employees fueling his motor vehicle with petrol instead of diesel. These included the loss of business as a result of the engine knock which actually prompted him to secure another motor vehicle to deliver the said seedlings to their destination of Butamabala; the back and forth from the Police due to the un-cooperative behavior of the Defendant's Managing Director and employees.

Last but not least, the fact that he has been out of gainful employment since the 4th day of April 2018 as his motor vehicle was his only source of income as stated by him. They submitted that the settled position stated in ***James Fredrick Nsubuga vs Attorney General, H. C. C. S No.13 of 1993,*** is that the award of general damages is in the discretion of court and as always, the law will presume to be the natural consequence of the Defendant's acts or omission

They further cited the case of ***Charles Acire vs Myaana Engola, HCCS No 17 of 1992***; it was also held that a Plaintiff who suffers damage due to the wrongful act of the Defendant must be put in the position he or she would have been i.e. or she had not suffered the wrong.

In addition, that in***Uganda Commercial Bank vs Kigozi [2002] 1 E. A, 305***, court gave guidance on how to assess the quantum of damages. That the consideration should be the value of the subject matter. The economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered. That based on the above evidence and the conduct of the Defendant's Managing Director blatantly denying the fact that the Plaintiff ever fueled his motor vehicle from its fueling station and yet there is more than enough evidence to the contrary and the suffering he has endured for the last six (6) years while out of work.

They therefore prayed that a sum of UGX. 500,000,000/= (Uganda Shillings Five Hundred Million) be granted to the Plaintiff as being adequate general damages in the circumstances.

**(c) Exemplary damages:** That Justice Bernard Namanya in ***George William Egadu & Anor vs Registrar of Titles & 2 Others, H. C. C. S No. 3199 of 2016*** held;- *"these may be awarded in any three of the following cases:*

*i) where there has been oppressive, arbitrary or unconstitutional actions by the action of the servants of the government*

*ii) where a defendant's conduct has been calculated by him or her to make a profit which may well exceed the compensation payable to the Plaintiff; and ii) that some law for the time being in force authorizes the award of exemplary damages."*

Based on the foregoing, they submitted that, the Plaintiff is entitled to the award of exemplary damages as provided for by law; and also due to the fact that the Defendant's actions towards the Plaintiff have been oppressive arbitrary and unconstitutional as they have deprived him of his Constitutional right to use his motor vehicle. Besides, the Defendant's actions of denying the wrongdoing of their employees even after trying to settle the matter amicably.

**d)** **Costs: Section 27 of the Civil Procedure Act, Cap 71** is to the effect that costs of any action shall follow the event unless the court or judge shall for good on otherwise order. They therefore prayed that in the court finds for the Plaintiff, and also be pleased to award the Plaintiff the costs court he has expended in this case.

**e) Interest-** on the special damages at a rate of 25% per annum from the date on which the cause of action arose and; the same rate on the general and exemplary damages from the đate of Judgment till payment in full. They relied on **Section 26 (2) of the Civil Procedure Act, Cap. 71** whichgives court discretion to award interest and prayed that this Honorable Court uses its discretion to award the Plaintiff interest as prayed.

**In resolving this issue,** the particulars of Special damages as captured in paragraph 4(m) of the Plaint; and the same is reiterated in paragraph 24 of his Witness Statement admitted as his evidence in chief (supra). Both confirm that it was pleaded as is required by the law. **PW2** asserted that it was due to the negligence of the defendant that he has had to incur costs in order to repair, transport and pay parking costs for the truck. He relied on a parts estimate invoice from Spear motors for six-nozzle holder and injection pump exhibited as **PEX1** and Receipt for breakdown services exhibited as **PEX 2.**

Special damages are items of pecuniary loss which can be quantified precisely like the cost of repairs, travelling expenses and loss of earnings etc. They are incurred by the claimant between the date of the incident and the date of trial which can be specifically calculated. See **The Uganda Civil Bench book 1st Edn. January 2016 at page 205.**

The Plaintiff in this case sought Special damages of Ugx.78, 499, 965/=. I have evaluated the evidence led in this case. The receipts relied upon are genuine and were made by a trustworthy dealer in the kind of motor vehicles that fit the description of that of the Plaintiff. I am therefore convinced that the Plaintiff has Special damages have been proved to the standard required under the law. My findings are that I agree with his claims.

In respect of General Damages, they are said to be “at large” that is to say, the court, taking all relevant circumstances into account, will reach and intuitive assessment of the loss which it considers the Plaintiff has sustained. The award of general damages is a discretion of court in respect of what the law presumes to be the natural and probable consequence of the defendant’s omission. In ***Erukana Kuwe vs Isaac Patrick Matovu & Anor, HCCS No.177 of 2003***, it was held that a Plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he would have been if she had not suffered the wrong.

General damages are a direct natural or probable consequence of the wrongful act complained of and include damages for pain, suffering, inconvenience and anticipated future loss (***See Storms v Hutchinson [1905] A. C 515.*** As a general rule, a person who has suffered loss as a result of another’s breach of contract is entitled to be restored to the position that the person would have occurred had the breach not occurred. In special circumstances where the loss did not arise from the ordinary course of things, general damages are awarded only for such losses of which the defendant had actual knowledge.

The settled position is that the award of general damages is in the discretion of court, and is always as the law will presume to be the natural and probable consequence of the defendant’s act or omission. See: ***James Fredrick Nsubuga v. Attorney General, H. C. C. S No. 13 of 1993; Erukan Kuwe v. Isaac Patrick Matovu & A’nor H. C. C. S. No. 177 of 2003 per Tuhaise J***.

Also, in the assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered. See: ***Uganda Commercial Bank vs. Kigozi [2002] 1 EA. 305***. A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been if she or he had not suffered the wrong**. *See: Charles Acire vs. Myaana Engola, H. C. C. S No. 143 of 1993; Kibimba Rice Ltd. v. Umar Salim, S. C. C. A. No.17 of 1992.*** The party claiming general damages is expected to lead evidence to give an indication of what damages should be awarded on inquiry as the quantum. ***See: Robert Cuossens v. Attorney General, S. C. C. A No. 8 of 1999; Ongom v. Attorney General. [1979] HCB 267.***

In the instant case, the Plaintiff has satisfactorily demonstrated that he has suffered great inconvenience at the instance of the Defendant. I therefore agree with learned counsel for the Plaintiff that he is entitled to general damages in this case. **PW3 Nsamba Majidun** after breakdown of his vehicle in PID No. and incurring over Ugx.800, 000/= to transport the seedlings by another vehicle.

Mitigation in tort requires that a Plaintiff is not bound to spend money to minimise his damages in tort. The Plaintiff is therefore not under a duty to do anything unreasonable subsequent to the damage which might exacerbate it, and not to incur any unreasonable expense which increases the extent of his or her loss.

The Plaintiff carries a duty to act reasonably after a tort has been committed against him or her. This does not mean that he or she is required to minimize his or her loss, but must do that which is within his or her means to minimise the loss. ***In African Highland Produce Ltd vs Kisorio [2001]1 EA 1***, where a plaintiff of relatively considerable means could have retrieved his damaged motor vehicle from the garage in 21 days following the traffic accident, but rather chose to hire a luxurious land cruiser motor vehicle at an unreasonably high rate and for an unnecessarily long period, was precluded from recovering the damages he claimed because he did not act prudently.

Relating the above to the instant case, I have found that the Plaintiff acted immediately and tried to minimize any damage, but this was not successful. I have however found that the sum of UGX. 500,000,000/= (Uganda Shillings Five Hundred Million) suggested by learned counsel for the Plaintiff to be on the higher side. Instead, given the circumstances under which the damage to the Plaintiff’s motor vehicle happened, I find a sum of UGX. 50,000,000/= (Uganda Shillings Fifty Million) to be fair and just in this case.

Turning to exemplary damages, I do not see a justification for it in this case and as such, I desist from awarding it.

**Section 26 (2) of the CPA 282 amended Laws of Uganda 2024** makes provision for interest on claims for monetary payment. In the instant case, taking into account the law as cited above, I also award them interest on the special and general damages from the time of this judgment until full payment.

A just and reasonable interest rate, in my view, is one that would keep the awarded amount cushioned against the ever-rising inflation and drastic depreciation of the currency. In that regard, I would consider a commercial rate of interest of 23% per annum to be just and fair. It shall be applicable to the general damages.

Further, it is now well established law that costs generally follow the event. See***Francis Butagira vs. Deborah Mukasa Civil Appeal No. 6 of 1989*****(SC)** and ***Uganda Development Bank vs. Muganga Construction Company (1981) HCB 35****.*

Indeed, in the case of ***Sutherland vs. Canada (Attorney General) 2008 BCCA 27*** it was held that courts should not depart from this rule except in special circumstances, as a successful litigant has a ‘reasonable expectation’ of obtaining an order for costs.

I find no find any compelling and or justifiable reason to deny the Plaintiff costs of the suit. Accordingly, it hereby ordered as follows.

1. The Plaintiff has succeeded in his claim against the Defendant. 2. It is declared that the Defendant’s employees acting in the course of their normal duties negligently caused damage to the Plaintiff’s motor vehicle UAM 629T Mercedes Benz Truck, 6 wheel when his pump attendant to fueled his truck with petrol instead of diesel as he had requested. 3. The Defendant is vicariously liable for the actions of his employees. 4. The Plaintiff has proved that he is entitled to Special Damages as pleaded and is awarded the same to the tune of Ugx.78, 499, 965/=. 5. The Plaintiff has has satisfactorily demonstrated that he has suffered great inconvenience at the instance of the Defendant’s employees for which the Defendant is vicariously liable and is awarded 50,000,000/= (Uganda Shillings Fifty Million) as General Damages. 6. A commercial rate of interest of 23% per annum shall apply to both the Special and General Damages above. 7. The Plaintiff is also awarded costs of the suit from the time of filing till Judgment.

I SO ORDER.

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ JUSTICE DR. WINIFRED N NABISINDE JUDGE 19/07/2024**

This Judgment shall be delivered by the Honorable Magistrate Grade 1 attached to the Chambers of the Senior Resident Judge Jinja who shall also explain the right to seek appeal against this Judgement to the Court of Appeal of Uganda.

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**JUSTICE DR. WINIFRED N NABISINDE JUDGE 19/07/2024**