[2024] UGHCCD 180

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **[CIVIL DIVISION]**

#### **CIVIL SUIT NO. 70 OF 2019**

### **ODETTA DENNIS::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF**

### **VERSUS**

#### **ST. PETERS SEN. SECONDARY SCHOOL, NAALYA LTD::::::::DEFENDANT**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### **JUDGMENT**

The plaintiff filed a suit against the defendant for breach of contract, seeking specific performance or, alternatively, compensation at market value for a motor vehicle (M/V Reg. No. UAZ 207C) that was given as a wedding gift to the plaintiff and his wife. The plaintiff also sought compensation for personal injuries sustained in an accident that occurred in the course of his employment with the defendant, as well as general and punitive damages, interest, and costs of the suit.

The plaintiff alleged that in 2017, while working as an employee at St. Peters Naalya Senior Secondary School, he discovered a student hiding in the dormitories during class hours. When the student attempted to flee, the plaintiff chased after and unknowingly fell into a poorly fitted septic tank, resulting in bodily injuries. The plaintiff claimed that he aspirated faecal matter through his mouth, nose, ears, and eyes due to the accident. He contended that the defendant owed him a duty of care to provide a safe working environment, which was breached, leading to his injuries and the incurrence of medical costs.

Additionally, the plaintiff alleged that after his resignation, the defendant demanded the return of the motor vehicle, which had been gifted to him on his wedding.

The defendant, in response, denied the plaintiff's allegations, stating that the septic tank was not poorly fitted and that the plaintiff only sustained minor bruises, for which he was treated at the defendant's expense. The defendant also claimed that after the plaintiff's resignation, they provided him with an additional UGX 10,000,000 for any future medical expenses related to the accident.

The defendant argued that the plaintiff was one of the school managers responsible for inspecting the school premises and that his failure to report any issues with the septic tank constituted negligence on his part. They further contended that the vehicle in question was provided to the plaintiff in his official capacity and should have been returned upon his resignation. The defendant described the plaintiff's claims as baseless and a waste of the court's time and resources, requesting that the suit be dismissed with costs.

The parties filed a joint scheduling memorandum on 29th May 2023 where the following facts and issues were agreed upon.

# *Agreed Facts.*

- 1. On 17th October 2017, the date of the accident in issue, the plaintiff was an employee of the defendant. - 2. The defendant paid for the first aid to the plaintiff on 17th October 2017 - 3. The plaintiff resigned from the employment of the defendant on 25th November 2017. - 4. The defendant deposited into the plaintiffs Bank Account No. 3200268889 held with Centenary Rural Development Bank, a sum of UGX 10,000,000/=

# *Agreed Issues*

- *1. Whether the plaintiff was injured during and in the course of his employment?* - *2. Whether the alleged injuries sustained by the plaintiff were as a result of his negligence?* - *3. Whether the defendant is liable in negligence to the plaintiff?* - *4. Whether the plaintiff is entitled to a return of the Motor vehicle (gift) or compensation for its value?* - *5. Whether the plaintiff is entitled to the remedies sought?*

The parties led evidence in support of their respective cases and thereafter filed final written submissions that were considered by this court

# *Whether the plaintiff was injured during and in the course of and out of his employment***?**

The plaintiff claimed that he was serving as Deputy Head Teacher at the defendant school at the time of the accident, as evidenced by PEX1 and PEX2, which are copies of his appointment letter dated 3rd February 2011 and his resignation letter dated 25th November 2017. He argued that PEX4, the police form for examining an injured person, showed that he suffered harm and presented with traumatic chest pain as a result of falling into a septic tank at the school.

Counsel for the defendant submitted that for an employee to receive compensation for an injury allegedly sustained at work, the employee must demonstrate that the injury (1) occurred by accident, and (2) arose out of and in the course of the employee's employment. The defendant only disputed whether the plaintiff's injury arose out of his employment.

Counsel for the defendant argued that the plaintiff failed to prove that he was performing duties within his core responsibilities as Deputy Head Teacher at the time of the injury, and thus was not injured in the course of his employment. This argument was supported by the legal position under Section 102 of the Evidence Act and the case of *Miller v. Minister of Pensions* **[1947] 2 ALL ER 372 at page 373.**

The plaintiff, however, relied on the case of *Paul Byekwaso v. Attorney General***, Civil Appeal No.10 of 2002,** where it was held that a master remains liable for acts which the employee is employed to do, or those incidental to the employee's duties, even if the employee adopts the wrong methods of doing them.

Counsel for the defendant contended that this principle applies under vicarious liability, not under the Workers' Compensation Act, as vicarious liability compensates third parties, not employees.

## *Analysis*

The plaintiff was employed as Deputy Headmaster at the defendant's school and the incident happened in the school and while the school was open to the purpose of teaching the students. An act is deemed to be done in the course of employment, if it is either; (1) a wrongful act authorized by the master, or (2) a wrongful and unauthorized mode of doing some act authorized by the master. So, a master can be made liable as much for unauthorized acts as for the acts he has authorized. However, for an unauthorized act, the liability arises if that is within the course of employment, i.e, it is a wrongful mode of doing that what has been authorized.

In *Bagenda v Pioneer Easy Bus Limited (Civil Suit No. 036 of 2016)*, the court emphasized the principle that an employee is considered to be acting **in the course of their employment** when they are performing duties they are employed to do, even if the employee adopts a wrong method or performs the act in a wrong manner.

For the plaintiff to succeed, he must present compelling evidence that connects his injury to duties related to his role as Deputy Head Teacher or an activity incidental to his employment. The defendant's focus on the

distinction between workers' compensation and vicarious liability is strong, but the court may look closely at whether the plaintiff's duties could reasonably extend to activities that might have led to the accident, such as inspecting or overseeing areas of the school where the septic tank was located. The court will likely hinge its decision on whether the plaintiff can prove that the injury occurred in the course of employment.

There is no liability for an act which is neither authorized nor wrongful mode of doing what has been authorized because the same is not considered to be within the course of employment. When the servant like the plaintiff does any act which is not in the course of master's business, the same is deemed to be outside the course of employment. An act may be in the course of employment even though that is not strictly in the performance of the duties of the servant.

# **Whether the alleged injuries sustained by the plaintiff were as a result of his negligence?**

# **Whether the defendant is liable in negligence to the plaintiff?**

# *Both issues 2 and 3 are resolved together since they are related***.**

The plaintiff, under paragraphs 4, 5, and 6 of his claim, alleged that the defendant was negligent in failing to provide a safe working environment, leading to the plaintiff's fall into the septic tank while chasing a student.

The defendant submitted that chasing the student posed an unreasonable risk, which could have resulted in an accident for both the plaintiff and the student.

The defendant's counsel submitted that in Uganda, employees who sustain injuries in the course of their employment are entitled to workers' compensation benefits. He argued that under Section 13(1) (a) of the Occupational Safety and Health Act, 2006, an employer has a general duty to take all reasonably practicable measures to protect workers and the general public at the employer's cost. Furthermore, Section 13(2)(e) of the same Act clearly states that an employer must ensure the provision and maintenance of a working environment that is, as far as reasonably practicable, safe, without risks to health, and adequate in terms of facilities and arrangements for the welfare of workers at work.

The defendant's counsel also cited Section 3(2) of the Workers' Compensation Act, which states that an employer is not liable for an injury unless it results in (a) permanent incapacity or (b) incapacitates the worker for at least three consecutive days from earning full wages at the work in which they were employed. He argued that there was no medical report on record showing that the plaintiff sustained any temporary or permanent disability arising from the injury, **which would qualify him for compensation under the Workers' Compensation Act.**

The defendant's counsel submitted that according to paragraph 10 of the written statement of Defence and the evidence of DW1, the Defendant school raised the defence of contributory negligence by asserting that, the plaintiff contributed to the injury he suffered when he run after students which action put his life and that of the student's in danger.

# *Analysis.*

The plaintiff relies on the principle of vicarious liability, suggesting that the employer is liable for actions taken by the employee within the scope of employment.

The defendant contends that vicarious liability applies to third parties, not to employees seeking compensation, and that the plaintiff should be pursuing compensation under the Workers' Compensation Act, not under vicarious liability. This court agrees with counsel's submission and that the plaintiff should argue a case for vicarious liability for his injuries.

In *Paul Byekwaso v. Attorney General, Civil Appeal No. 10 of 2002*, it was held that "A master is liable for tortious acts committed by his servant in the course of his employment." This principle is rooted in the doctrine of **vicarious liability**, which is also illustrated in *Muwonge v. Attorney General [1967] 1 EA 17*. In both cases, the courts held that an employer can be held liable for the wrongful acts of an employee, provided those acts were committed in the course of employment, even if the employee was performing the task improperly or using an incorrect method.

However, the plaintiff's reliance on vicarious liability in this case may be misplaced. **Vicarious liability** is primarily applicable to third-party claims, where the employer is held responsible for harm caused to others by the employee's actions. In contrast, the plaintiff is an employee claiming compensation for an injury sustained during the course of employment. Such claims are better pursued under **workers' compensation laws**, which directly address employee injuries and provide specific remedies for workplace accidents.

When the act of the servant is altogether of a different kind than what was authorized by the master, the act is considered to be outside the course of employment and the master cannot be liable for the same. The plaintiff as the Deputy Head Teacher is enjoined to ensure that student comply with the code of conduct of the students in the school including attendance of classes. However, the Deputy Head Teacher should not in course of his employment devise means of ensuring compliance with the school rules and code of conduct which are risky to both the student and himself.

The employer has a general duty owed towards the employees to take reasonable care for the latter's safety at work. This employment relationship gives rise to circumstantial proximity under the first stage for establishing a duty of care. A 'system' of work as the practice and method of carrying out the employer's business should be distinguished from "isolated" or "day to day "activities of the employee. The system of work should reduce as far as possible the effects of an employee's own carelessness. See *General Cleaning Contractors v Christmas [1953] AC 557 at 562*

The plaintiff contends that the defendant was negligent for not providing safe work environment while the defendant equally contends that plaintiff was negligent in his actions which resulted in him falling in a septic tank as he was chasing the student who had stayed in the dormitory.

The court is duty bound to assess the likelihood of harm at the time of occurrence of the event. Where the likelihood of injury to the plaintiff is extremely low or remote, a high standard of care is not required to prevent the injury. The standard of care expected of an employer is not to anticipate and guard against every conceivable eventuality but only to take reasonable precautions to ensure workers safety. See *China Construction (South Pacific) Development Co Pte [2004] 2 SLR (R) 479*

The defendant should not be held to an overly stringent standard of care to prevent every conceivable risk like in the present case where the plaintiff at his own volition decided to chase a student and stepped on septic tank cover and fell inside. This would not be an ordinary risk which would be anticipated since it was a chase with some force in an unusual area of operation. The plaintiff's overzealousness led him into the septic tank and his conduct was uncalled for in the circumstances simply because he was trying to apprehend the student who has not attended classes.

The costs of avoiding harm generally serves as a factor to counterbalance the risks and extent of harm to the plaintiff subject to the presence of other factors and the overall standard of reasonableness. The plaintiff would have avoided any such harm of falling into the septic tank, if he had not chased the student who was hiding in the dormitory during class hours. The plaintiff was not likely to fall in a septic tank if he had avoided a dangerous approach of chasing the student. The whole object of the law imposing a duty on employers to provide a safe system of work was to protect reasonable employees from their own inadvertence and carelessness.

The plaintiff prior to being promoted to Deputy Head Teacher, the plaintiff had been Director of Studies and classroom teacher for a period of 10 years at the same school prior to the unfortunate incident. The plaintiff was quite

conversant of the school environment and the standard of care of the defendant towards the plaintiff. The court considering the experience of the plaintiff, the job scope and position of Deputy Head Teacher he was holding at the time would absolve the defendant on the allegations of negligence and breach of the standard of care.

The plaintiff's misfortune would serve as a warning to all such overzealous teachers to avoid getting in the harm's way in execution of their duties of enforcing discipline among the errant students. Septic tank covers are not usually dangerous once they are not stepped over while running or chasing students.

The plaintiff was negligent in his conduct and the defendant is not liable for his negligent acts.

## *Whether the plaintiff is entitled to a return of the Motor vehicle (gift) or compensation for its value?*

The plaintiff pleaded and adduced evidence to prove that upon his wedding on 15th September 2015 he was handed a Motor Vehicle reg no. UAT 207C Toyota Premio as a gift.

The plaintiff testified that upon his resignation, the defendant's Managing Director demanded a return of the said motor vehicle which had earlier been handed over to him as a gift with his wife.

The defence witness testified that Car Registration Number UAZ 207C Toyota Premio belonged to the school and was being used by Odetta to facilitate him perform his duties as a Deputy Headmaster of the school

## *Analysis*

A gift or a present is an item given to someone without the expectation of payment or return. A gift is now understood to mean a mere voluntary assurance or transfer of property without any consideration being given for it in money or money's worth.

The ingredients of a valid gift are of its being voluntary, without consideration and the same must be accepted by the done and the said acceptance must be in a lift time of the donor. See *Chhedi Tanti v Smt Gangati Dev, [1985] 1 Civil LJ 634 at 639 (Pat)*

Whether there is a valid gift, intention of the donor and acceptance of the gift to the donee is pivotal and shall be the guiding factor for a valid gift. A gift before delivery of possession to the done is revocable by mere declaration by the donor.

The plaintiff was handed the car keys during their wedding before the entire wedding congregation which included family members and friends as a gift and it was accepted and appreciated by the family and friends. There is no indication of the said motor vehicle being given to the applicant to facilitate his work and a Deputy Headmaster.

This court had the benefit of watching a video recording of what transpired during the reception of the plaintiff's wedding and it is without any doubt clear that the motor vehicle was given to the plaintiff as a gift. The defendant's claim or evidence is unbelievable and an afterthought to give a contrary view that it was intended to facilitate the plaintiff in his work. The plaintiff should never have been facilitated top work well with a motor vehicle at a private function-wedding.

The defendant wanted to take 'credit and praises' at the kind gesture towards the plaintiff, which indeed happened and she cannot purport to revoke the gift by denying that it was one. The conduct of the defendant is like a *'jilted lover syndrome'*, who seeks return all the gifts given during the pendency of the relationship. The plaintiff was requested to return the motor

vehicle because he had resigned from the position of Deputy Headmaster of the school. The demand for the vehicle was in retaliation for his sudden resignation upon their refusal to grant the plaintiff leave.

It may appear that the defendant giving of the gift was not necessarily just an altruistic act. May be it was given in the hope that the plaintiff reciprocates in a particular way by remaining in employment of the defendant for life. Upon the plaintiff's refusal to continue in employment resulted in the demand to repossess the gift.

This court is satisfied that Motor Vehicle Reg. No. UAZ 207C was given as a gift to the plaintiff on his wedding day.

## *Whether the plaintiff is entitled to the remedies sought?*

The plaintiff in their pleadings prayed for: specific performance and in the alternative, compensation for the motor vehicle Registration No. UAZ 207C, Toyota Premio general damages, exemplary/ punitive damages against the defendant and costs.

On costs, the plaintiff submitted that under section 27 of the Civil Procedure Act, Cap. 282 revised edition, costs follow the event. He therefore prayed that the plaintiff is granted the reliefs as sought in the plaint.

## *Analysis*

Upon determination of the preceding issue, the plaintiff is entitled to the return of his gift- Motor Vehicle Registration No. UAT 207C (*Toyota Premio*) and in the alternative, compensation for the value of the motor vehicle as at the time it was taken away from him in 2017.

The Registrar of this court shall determine value of the said motor vehicle as at time in November-2017.

The plaintiff is awarded 35% of the costs of the suit since they failed on the rest of the claim.

I so Order

*Ssekaana Musa Judge 31st October 2024*