[2012] UGHC 434

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU HCT-02-CV-CS-0069-2008**

**ORENG MARTIN PLAINTIFF**

#### **=VERSUS=**

### **UMEME LIMITED DEFENDANT**

#### **BEFORE HON. JUSTICE WILSON MASALU MUSENE**

#### **JUDGMENT**

*It* The Plaintiff, Martin Oreng filed this suit against the Defendant, (UMEME LIMITED), a limited liability company for recovery of special and general damages arising in negligence.

The brief facts were that on or about the 24th day of November, 2007 at about 3:00pm, while Martin Oreng was going about his duties at his home in Kasubi Goan Quarters in Bardege Division, Gulu Municipality, he got electrocuted by an electric wire hanging loosely behind one of the huts and which caused a spark that eventually caused a fire. (Photographs of the scene were attached as annexture "A").

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And that as a result of the electrocution, the Plaintiff suffered extensive bodily burns and injuries which included sexual dysfunction.

The Plaintiff case was that the accident was caused by the negligence of the Defendant, UMEME LIMITED, who at the material time was fully aware of the hanging wire and its attendant dangers.

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The Plaintiff also set out particulars of special damages as , household property and personal effects worth Shs. 4,873,400/- (particulars in annexture "B"), Hospital and medical bills totaling to Shs. 500,000/= and transport to and from Hospital for check up by special hire at Shs. 450,000/=.

Finally, the contention of the Plaintiff was that as a result of the injuries suffered he can not adequately provide for his family as a bread winner, and that he has been deserted by his wife because he could not satisfy her sexually, which has caused him psychological injuries.

In their written statement of Defence, the Defendant, UMEME LIMITED, denied all the above allegations, and in the alternative put up a defence that the alleged accident was caused by or contributed to by the negligence of the Plaintiff.

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I Certify- that this **ia a true** Cop?' P^AsJ^rifinal *I* **D. £«gi\*tr«r**

At the scheduling conference, the following memorandum was recorded to assist the Court in expeditious disposal of the case namely:-

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It was agreed that the Plaintiff's house caught fire.

There were no agreed upon documents.

- (a) It was agreed that the plaintiff's house caught fire. - (b)There were no agreed upon documents.

#### The following issues were agreed upon:-

- 1. Whether the cause of the fire was Defendant's loose/live electric wire. - 2. If, so whether the fire was due to the Defendant's negligence. - 3. Whether the Plaintiff was contributorily negligence for the fire. - 4. Whether the Plaintiff suffered as a result of the alleged fire. - 5. What are the remedies available to the parties?

The Plaintiff, Oreng Martin was represented by Mr. Oloya of M/S Oloya & Co. Advocates, Gulu, while the Defendant, UMEME LIMITED, was represented by Mr. Ssebuliba of M/S Shonibi, Musoke & Co. Advocates & Solicitors, Kampala.

The burden of proof in civil case likes the present one lies on the $\rightarrow 0$ Plaintiff and the standard of proof is on the balance of probabilities.

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In a bid to prove his case, the Plaintiff testified as PW1, and called witnesses, PW2, Aliwegi Janaro, PW3, Obol Michael, LC I Secretary for information of the area where the Plaintiff lived and where the catastrophy took place, and PW4, Dr. Olwedo Onen Julious of Anaka Hospital.

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The Defendant, on the other hand, adduced evidence of Mr. Alex Mackot Atoo, who testified as DW1, and who is the operations Manger of UMEME LIMITED.

*The first issue was whether the cause of the fire was the Defendants loose electric wire.*

PW1, Oreng Martin, aged 35 years and a driver, and a resident of Water Sub Ward, Kasubi Parish, Bardege Division, Gulu Municipality testified that on 24.11.2007, he was in his house when an electric wire broke and he heard his neighbor crying.

He added that when he went to rescue his neighbor, on his way, that another neighbour also came and stepped on a live electric wire and fell down, while rushing to catch him. PW ¹ added that as the neighbour caught him, he PW1 was also electrocuted. **^I S'**

PW1 further added that the person who was crying had been stranded in a building which was on fire, and that on the previous

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Cin *I (.* this **a true** Mariitra\* / D. Reffiatrar

days, he would see the electric wire spark light when the wind blows.

PW1 further testified that he realized that he was down and lost consciousness. And that he regained consciousness when he was in Gulu Referral Hospital, having a lot of headache, he could not walk and was bedridden. He added that he was hospitalized for one week and the medical forms were exhibited as P1.

So as far as the first issue was concerned, PW1's evidence was ably corroborated by PW2, Aliwegi Jenaro, who testified that on the date in question, he was coming to town of Gulu when he saw an electric wire sparking light. PW2 added that the officials of UMEME were in the next corner upon electric poles, while some were cutting trees where the line was passing.

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And that the following day at about 2:00pm - 3:00pm; he saw 15 buildings on fire. That they were below the line the electric wire was passing and when he ran home; he found the electric wire had broken up and hit a Policeman dead. PW2 added that he found the Plaintiff lying on the ground as if he was dead. That PW2 rang the army captain Ojok who informed the army Commander, who came to the scene with the fire brigade from the Airport. And that thereafter, an official from UMEME came and took the dead Policeman on a pick up to the hospital.

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PW2 concluded that on the scene of incident, he saw a broken electric wire lying on the ground and a number of buildings were burnt including that of the Plaintiff (PW1) with a burnt motorcycle in the same house.

PW3 was Obol Michael, the Secretary for information who testified that he personally reported about the sparkling wire to UMEME office, that the sparkling wire could injure people. He added that he returned home and waited for UMEME in vain and that the sparkling wire was passing near his home. PW3 added that the following day, he heard people making noise as the wire had caused - ^t o fire and houses were burning. And PW'3 further testimony was that' when he went to the scene, he found the Plaintiff and another person pulled to the wall so as to be protected from further danger and that the Plaintiff was rushed to Hospital.

^I C The above pieces of evidence, notably of PW1, PW2 and PW3 all confirm that on the dates in question, the electric wire belonging to the Defendant broke and subsequently caused fire which burnt houses including that of the Plaintiff. And the above testimonies on the Plaintiffs side were not denied by the Defendant.

DW1, Alex Makot Atoo, the operations Manager testified that he recalls in November, 2007, a wire broke and fell on some grass thatched houses in Goan Quarters.

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DW1, added - *"It burnt some houses. I don't know whether the Plaintiffs house was affected".*

PW3. The most important piece of evidence from DWl's testimony was that the broken electric wire fell on grass thatched houses in Goan Quarters and burnt some houses. And those houses included that of the Plaintiff as born out from the testimonies of PW1, PW2 and

In the circumstances, and in view of the clear and consistent testimonies of PW1, PW2 and PW3, which was corroborated by DW1, ^I find and hold that the cause of the fire was the Defendant's loose/live electric wire.

The first issue is answered in the positive.

# *The second issue is whether thatfire and consequent burning of houses was due to Defendant's negligence.*

**-1 r** Mr. Ssebuliba for the Defendant submitted that the report made bylocal authorities about the sparkling wires was not received by the area Manager, DW1. And that the report received was in respect of another area in the neighbourhood.

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**10** He also added that the snapping of the electric wire could have been caused by a number of factors including weakening by the heavy storm which had taken place the previous evening.

negligence of the Defendant. Mr. Ssebuliba concluded on that issue that whereas the fire which gutted the huts including the Plaintiff's might have started by the broken wire that the cause of it's breaking was not due to the

. With great respect, ^I am unable to agree with Mr. Ssebuliba for the Defendant in his submissions. This is because, as correctly submitted by Mr. Oloya for the Plaintiff, the evidence of Dwl, Alex Makmot Atoo, was to the effect that in November, 2007, a wire, broke and fell on some grass thatched houses in Goan Quarters and that it burnt houses.

**^I 0**

Since Dwl was the operations Manager and/or Engineer of the Defendant Company, then his testimony was for all purposes and intends a clear admission on their part. DW1 did not tell Court what remedial action he took as an Operations Manager about he broken electric wire. In fact in his further testimony on record, he stated:-

*"The breaking of the electricity wire could have been caused* \_ ^&gt; 5 *by age or some weak point at that particular place".* The question that arises at this juncture is whether it was not the responsibility of DW1 as an area Operations Manager to do

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Cops **Magistrate / D. Hagiatrar tii»** *—* I Certif\*" i« a true Original

something about old age of the electric wires and weak points. Whose responsibility was it if not DW1 and the Defendant?

The finding of this Court is that the Defendant owed a duty to the public, including the unsuspecting Plaintiff, to replace old age wires and rectify weak points as and when identified in their routine check up and maintenance. That was their prime duty and responsibility which they can not run away from.

DWT, in ms hiffh^t^mn-ny-^-t-ated^—

*"UMEME carried out its duties of maintaining that line deli gently. But it was the storm of the previous dag that brought* \_ *havoc. We normally advise people who have built in the power corridor to leave".*

This Court finds and holds that the above lamentations on the part of the Defendant are unacceptable. And in any case, DW1 did not tell this Court whether they told the people in the area to leave, apart from the lamentations that they normally tell them to leave.

Further more, this Court holds that the lamentations and explanations of DW1 are not tenable in view of the clear testimony of PW3, Obol Michael, the LC I Secretary for information.

PW3 clearly told Court that on the previous day before the fateful day, he personally reported to the offices of the Defendant the

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danger posed by the sparking wire and that he (PW3) waited at home the whole day and no official from the Defendant came to correct the problem.

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^I further agree with Mr. Oloya for the Plaintiff's submissions that the evidence of PW3 is corroborated by that of PW2 who also — <3 reported about the danger of sparking wire to the employees of the Defendant who were working nearby in the vicinity of the accident. Nevertheless, and despite that report, they never responded \* proiripflyleading^LUthe'unfortunateuneident-and.-catastrophy..

**io** In the premises, I find the submissions of Mr. Ssebuliba for the Defendant that the Defendant was vigilant and responsive to whatever faults that were reported to it very misleading and. intended to divert the course ofjustice.

**^&gt; J** This Court will not allow and the submissions of Mr. Ssebuliba in that regard are hereby rejected. 'This is because if at all the Defendants workers were vigilant, why did they not respond to the information by PW2 and PW3 promptly by switching off power in the bad area, whereby the sparking of the wires that eventually broke and caused the fire would have been avoided.

Mr. Ssebuliba further cited the case of *Minister of Safety and Security Vs. Van Duiven-boden (2002) 3 All S. A 741,* in that case, it was held that where the law recognizes the existence of a

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**I Ccriif'' this i« a trua Co>y<a^tka Original**

legal duty, it does not follow that an omission will necessarily attract liability, unless a reasonable person in the position of the Defendant would not only have foreseen the harm, but would also have acted to avert it.

He therefore urged that in the present case, the Defendant foresaw the possibility of wires snapping or breaking one time and causing injury to the people and property directly below them. And that in its wisdom, it enacted a law, the Electricity Act, 1999, to prevent " ~~]^dpTemkeH3Te^Plain#ffHrom--ear-^ such installations. And that the Plaintiff and others disregarded . and constructed houses in the prohibited corridor. Mr. Ssebuliba concluded that the Defendant foresaw the harm and acted to avert it by prohibiting people to carry out activities in the corridor, and was therefore not negligent.

^I find that above submissions and the case quoted not applicable to the circumstances of this case. The relevant provisions of the Electricity Act, 1999, relieved on by Mr. Ssebuliba is Section 87. It provides:-

*"Section 87(1) No person shall, without the lawful permission ^ofthe authority or the licensee, as the case may be, undertake any work or engage in any activity in the vicinity of any electrical installation or part of the installation in a manner likely to interfere with any electrical installation or cause danger to any person or property".*

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## *"Section 87(2) Any person who contravenes this Section commits an offence and is liable on conviction to a .fine not exceeding twenty currency points or to imprisonment for a term not exceeding two years or both".*

The Electricity Act therefore deals with undertakes any work or activity in the vicinity of any electrical installation. a situation where one

*f* c\* In the first place, it does not talk of any construction of houses. But even if we were to assume that construction of grass thatched houses like that of the Plaintiff would be likely to cause a danger, the question is what did the Defendant do when such houses were constructed allegedly under the electrical lines.

Why didn't the Defendant seek a Court Order to have such houses demolished?

) *C* Why did they look on as people were living in the area? Section 87(2) of the Electricity Act provides that it is a criminal offence to do so. The question is, why didn't the Defendant prosecute the Plaintiff and others with houses below the said lines under Section 87(2). There is no evidence in this Court to that effect. It is therefore not a question of pleading that the Plaintiffs or others would have known the consequences of Section 87 of the Electricity Act when they were never informed and when they were never prosecuted.

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In any case, the present case is about broken electricity wires which had been sparking light since the previous day to the incident, they were reported by both PW2 and PW3, and no action was taken by Defendant.

This Court therefore finds and holds that the South African case quoted by learned Counsel for the Defendant is quoted out of context and inapplicable in the present case. And since the D^hdant^'T^rauoirKiahag^DWT'admittedhm-his-evidence that their wire broke and fell on some grass thatched houses, which houses got burnt, (and Plaintiff's house was among those as borne \_ out in evidence on record by PW1, PW2 and PW3), the Doctrine of *"Res Ipsa Loguitur"* applies and makes Defendant liable.

**! 3**

1 .1 In the case of *Christopher Mpanga and 2 Others* Vs. *John Kawesa (1980) HCB 131,* the Honoruable the former Principal Judge, Ntabgoba held that the doctrine of res ipsa loguitur is a rule of evidence by which the Plaintiff, by proving that the accident occurred in circumstances in which it should not have occurred, thereby discharged the burden of showing negligence on the person who caused the accident. *All that the party pleading the doctrine of Res Ipsa Loguitur had to do was to show that an accident of that nature happened which should not have happened in those similar circumstances, thus given rise to inference ^ofnegligence.*

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**Chia^kMajistrate / D. Rajiatrar Dated** tfrig *I* **( jti'\*** thia **it a true Caji •** ^hJjth^Orifiaal

In the present case, sparking wires were reported to the Defendant, which later broke and fell on huts causing fire as already found.

*This Court emphasizes the fact that if the Defendant's workers had responded promptly by switching offpower in the area where sparking was reported, or taken any other step to stop the sparking, then the conseguent breaking of the sparking live wire causing the burning ^ofthe houses including that of the Plaintiff would not have happened.* The doctrine of Res Ipsa Loguitur is m^~ei7)re\_appiicabTe\_To~the;'mircumstanees'-of this case making the Defendant liable in negligence.

The second issue is therefore hereby answered in the affirmative.

^I now turn to the third issue as to *whether the Plaintiff was contributorily negligentfor the fire.*

Contributory negligence is provided for under Section 13 of the law Reform, (Miscellaneous Provisions) Act, Cap.79, laws of Uganda. It states:-

*"Section 13(1) where any person suffers damage as a result partly of his/her own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of the claim shall be reduced to such extent as the Court thinksjust and*

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| ^I ( . i-\*:!' thia ia ^a trua I Cop" **^I/ D. Ragiatrar** I D«>W thia —.. ## equitable having regard to the claimant's share in the responsibility of the damage......".

So whereas contributory negligence offers some form of Defence to a claim of negligence, it is only a mitigating factor. In the present case, Mr. Oloya for the Plaintiff submitted that there was no -5 evidence of contributory negligence. That the Plaintiff was electrocuted when he attempted to rescue another person crying in the burning house. And on his way, someone who had been electrocuted grabbed him and he was also electrocuted.

So I am inclined to agree with the submissions of Mr. Oloya that in $\Box$ , $\mathfrak{d}$ view of the testimonies of PW1 and PW2, the Defendant was wholly and entirely responsible for the accident. This is because as already stated herein above, the problem of the electric wire fault was reported to the Defendant, and some of his workers by PW2 $1S$ and PW3 the day before it eventually broke and electrocuted the Plaintiff. The other victim died.

I therefore find and hold that there was no contributory negligence on the part of the Plaintiff. Issue No. 3 is answered in the negative.

The fourth issue is whether the Plaintiff suffered $anu$ loss/damage/injuries as a result. $20$

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I Certif- that this is a true Copy of the Original

The Plaintiff's injuries and loss as a result of the fire are borne out from the evidence of the Plaintiff, PW1, PW2, PW3 and PW4, Dr. Olwedo Onen Julius.

PW4 testified that on examination of the Plaintiff, he found that the nature of injury was electric shock complication, which blurred his vision and made him weak in the limbs.

PW4 also testified that the Plaintiff suffered loss of sexual function. ^y-7r^'He"classified the injury-a.s-main-and-medical-repoFhwas-te-ndere.d-iiiCTjraas P3.

**I** During cross examination by Counsel for the Defendant, PW4 testified that main is a permanent injury to the organs, and that the Plaintiff could not sustain an erection as far as the sex organ was concerned.

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PW4 concluded the cross examination that electrification affects, the organs which have excitable and non-excitable tissues.

The Plaintiff further told Court that properties he lost as a result of the fire and they were all spelt out in exhibit P2. The list included furniture, cooking utensils, clothes and beddings.

The list, annexture ""BB"" to the Plaint was admitted in Court as exhibit P2 with no objection from Defence Counsel.

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During cross examination by Counsel for the Defendant, the Plaintiff confirmed that his house was 10 feet wide and was holding all the properties listed and mentioned.

Mr. Ssebuliba for the Defendant submitted that whereas the report of Dr. Olwedo concluded that the Plaintiff had suffered bodily . *'* injuries consistent with electrocution, that the Defendant should not be held liable for omissions of the Plaintiff who flouted the law ■^^^egarding^activitiesjnjfoe-yfc ................

This Court has already dismissed that above arguments while discussing 2nd issue, and for emphasis, the Plaintiff was never prosecuted for alleged flouting of the electricity law.

I accordingly find and hold that the Plaintiff suffered loss/damage and injuries and so the fourth issue is answered in the affirmative.

## *The fifth and last issue is the remedies available.*

As already discussed and found here in above, the Plaintiff suffered due to the negligence of the Defendant.

*-*

**T3**

So he is entitled to an award of general damages for negligence. Mr. Oloya submitted that considering the spiraling inflation rate in Uganda today, general damages of Shs. 20,000,000/= be awarded.

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**Magistrate / D. . Registrar D\*»U thi. ^2.^ I C; riif" the t this is a inw th> Orifiaal**

He quoted the case of *Matiya Byabalema & 2 Others Vs. Uganda Transport Company (1975) Ltd. (1994-1995) HCB 64,* where the Supreme Court held that Courts ought to assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present. I entirely agree with the reasoning of the Supreme Court.

In the case of *Patrick Luyima Vs. Alimed Brik, High Court Civil Suit No. 103 of 1978 (1980) HCB 162,* Allen J. as he then was awarded general damages.\_of.\_Shs—35;00Q-/-=—by—then^when—the-^ permanent physical incapacity was assessed at 15%. The Plaintiff in that case sustained a head injury resulting into occasional headaches and dizziness.

In Christopher Kato Vs. Fort portal Municipal Council, (1980) HCB 160, Manyindo J. as he then was, awarded general damages of Shs. 100,000/= at the time.

In that case, the Plaintiff had been brutally assaulted by the agents of the Defendant Council and he sustained serious injuries which affected his reproductive organs, resulting into impotence. He could be able to sustain an erection for two minutes thereby being rendered of not much help to the women in this Country.

So going by the awards in those days, when the incapacity in those two cases was assessed at 15%, and the inflation, the Plaintiff in

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this case deserves more. PW4, Dr. Olwedo assessed the magnitude of disability at about 70%.

The Plaintiff was said to have a retina in the eye with a blur in both eyes which would require a retina transplant but which is not there in Uganda. PW4 further testified that reading glasses can not be of any help.

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And finally, PW4's testimony was that the Plaintiff sexual organ is permanently injured;md.hemquldq20tprect,^^

I ' In fact PW4 concluded that whereas he expected some improvement in the eyes and limbs, he did not expect improvement of the sexual organ. These are very grave and serious injuries which include loss of sexual powers at the age of only 35 years, when he is supposed to be at the epitome of things, and attract the most beautiful young ladies in Gulu and beyond. Due to the negligence of Defendant, the Plaintiff has been denied the best God given right of sexual gratification and procreation.

In the premises, and particularly in view of the inflation prevailing and the nature of injuries sustained, I am not able to disturb the figure of Shs. 20,000,000/= proposed by Counsel for the Plaintiff. ^I find the same humble and reasonable.

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**Migiatrat\* / D. H.gUtr.r thi,** *I* I ^C .< nif - th.t ihi. i« ^a I™.

I accordingly award a sum of Shs. $20,000,000/$ = as general damages to be paid by the Defendant to the Plaintiff.

The special damages of Shs. $5,823,400/$ = were pleaded and proved. In. the W. M Kyambadde Vs. Mpigi District case $\overline{of}$ Administration, (1983) HCB 44, Masika C. J (as he then was), held that special damages must be strictly proved but they don't need to be supported by documentary evidence in all cases. Items like furniture, beddings, cutlery and house hold utensils are necessary in the day to day life of all people and can not be $10$ disputed. In this particular case, Mr. Ssebuliba for the Defendant. did not oppose the list of articles lost in annexture "B" to the Plaint and exhibited as P2 in Court.

I accordingly uphold the list and do hereby order the Defendant to pay to the Plaintiff special damages of Shs. $5,823,400/$ =.

I also award the Plaintiff costs of the suit.

## In conclusion therefore, I do hereby enter judgment against the Defendant and in favour of the Plaintiff for:-

- 1. General damages' of Shs. $20,000,000/=$ - 2. Special damages of Shs. $5,823,400/$ = - 3. Costs of the suit - 4. Interest at Court rate from the date of Judgment till payment in full.

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wif- that this is a true

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**I** *r* i

**^V ilson Masalu Musene**

**Judge**

## **1.6.2012**

Mr. Oloya Martin for the Plaintiff present, **r \*** Plaintiff in Court.

**——**

Mr. Ssebuliba for Defendant absent.

Ochan - Court present

**W. M. Musene Judge**

**Court:** Judgment read out in open Court.

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**M. Musene Judge / J**

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