[1999] UGCA 74

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

## **HOLDEN AT KAMPALA**

### **CORAM:** HON. MR. JUSTICE G. M. OKELLO, J. A.; HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A.; HON. MR. JUSTICE J. P. BERKO, J. A. $\cup$

### CIVIL APPEAL NO. 19 OF 1999

#### **BETWEEN**

#### ROBERT COUSSENS::::::::::::::::::::::::::::::::::

#### AND

#### THE ATTORNEY GENERAL::::::::::::::::::::::::::::RESPONDENT

(Appeal from part of the Judgment and Decree of the High Court (P. K. K Onega, J.) Dated $27^th$ March 1990).

#### JUDGMENT OF G. M. OKELLO, J. A.

This is an appeal against the award of General Damages made by the High Court (P. K. K. Onega, J.) to the appellant on 27/3/98 in Civil Suit No.462 of 1996.

The appellant, an American national, and a professional deep sea diver, was in Uganda for a visit when he was negligently shot by members of the Uganda Police Force that mistook him for a car thief. The appellant sustained severe injuries as a result of the gunshots. Medical evidence established that he could no longer do deep sea diving. He instituted the suit

in the High Court against the Attorney General of Uganda claiming Special and General Damages for personal injuries. He claimed that as ^a professional deep sea diver, he was earning in the United States of America US\$72,000 per year. He expected to pursue that career for the next twenty years. He was 25 years old at the time of the incident. According to him, because of the injuries he could not now earn that amount. He could only earn US\$22,000 per year. ln paragraph 12 (a) of his Amended Plaint, the appellant claimed as general damages US\$1,025,000 being loss of the earning he would have made in the next twenty years at the rate of (US\$72,000 - 22,000) 50,000 United States Dollar per year.

rl

The trial Judge heard the case and gave judgment for the appellant but declined to award general damages in the amount claimed as loss of earning. His reason was that the appellant did not prove that he was earning any money at the time of the injury. After considering a number of comparable local cases, the trial Judge thought that this case was uniqr-re and awarded a general damages of Uganda Shilling 50,000,000/:.

The appellant was not satisfied with that award and appealed too this court on the following grounds:-

> tl] The learned trial Judge erred in law when he wrongly held the appellant was not entitled to an award of loss of income because he was not working at the time he was shot by the Police.

- 121 Alternatively, but without prejudice to ground l, the learned trial Judge erred in law when he found that the appellant eamed an average of US\$29,740.52 annually in 1994 and then proceeded to award general darnages without taking it into account. - t3] Further in the alternative but withor-rt prejudice to the foregoing grounds, the learned trial Judge erred in law when he arrived at the award of general damages using the wrong principles and hence made a low award in the circumstances of the case

At the commencement of the hearing of this appeal, Mr. John Matow, learned Counsel for the appellant, told us that the grounds were not meant to be in the alternative. He argued grounds I and 3 together, then ground ² separately.

The thrust of the appellant's attack upon the Judgment of the trial Judge in this appeal is directed to the principle that the trial judge adopted to assess the appellant's loss of earning. It was that the trial judge was wrong in not taking into account the rate of the appellant's last earning several years before the incident as the basis for calculating his loss of eaming. In Counsel's view, there was evidence which the trial judge ignored showing that in 1994 before his injury, the appellant was earning fiom Maryland Diving Services in the Untied States of America dollars 72,000 per year and that because of the injury the appellant could now earn only United States dollars 22,000 per year. Counsel's argument, which he had also presented before the trial court, was that the amount which the appellant could now earn after his injury should be deducted frorn the rate ofhis earning before the injury and the difference should be the multiplicand to be rnultiplied by a rnultiplier of 20 which is the remaining working life of the appellant to determine his total loss of earning. He submitted that because he adopted a wrong principle, the trial ludge awarded a low amount for general damages. He invited us to enhance the amount.

The trial judge rejected counsel's proposal on the ground that the appellant was not earning any money at the tirne of the incident.

The underlying principle governing award of damages whether arising from breach of contract or in tort is "restitutio in intergrum". That is, as far as money can compensate, to put the injured party as nearly as reasonably possible to the position he was in before the injury complained of. If there is any special damage which is attributable to the wrongful act, that special darnage must be averred and proved, and, if proved, will be awarded. If the darnage be general, then it must be averred that such damage has been suffered but the quantification ofsuch darnage is at large. Its assessment is a matter for the discretion of the trial judge.

ln the Comntissioners For Executins Oflice of Lortl Hish Admiral of Unilerl Kinsdottt Vs Owners of Sletntsh w Sttsque - Honna 11926l AC 655

at 661, the question at hand was the principle of assessment of damages. The case arose from a collision between an Oil Tanker belonging to the Admiralty and a Steamship of the respondent. The appellant claimed specific amount as general darnages for the period when his vessel remained darnaged. For calculating the amount, he used the rate which had been paid in the past for another vessel which had been hired.

The registrar refused to accept that method. He dealt with the case as a jury would have done. He reduced the rate per day. In doing so he made his own calculations taking into account the value of the vessel after the accident, establishment of charges, owners profit and general damages. His award and the principle he adopted were upheld, by the Court of Appeal of England and the House of Lords. In this regard Viscount Dunedin said:-

- "(l). There is no difference in this matter between the position in admiralty law and that of the common law and the common---law says that damages due either for breach of contract or for tort are damages wlrich, so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act. - (2) If there be any special damages which is attributable to the wrongful act that

special damage must be averred and proved, and, ifproved, will be awarded

- (3) If the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a lury question. - (4) For ajury question, no rigid rule or rules that apply to all cases, can be laid down but in each set of circumstances certain relevant considerations will arise which, were the matter before the ajudge in the case to bring before the jury."

In another case of ll/est & Sons Lttl. ond Another Vs SHEPHARD Il964l ,4C Mrs. Shepherd was knocked down by the negligent driving of the second defendant, a servant ofthe first defendant. She sustained severe head injuries which resulted into the paralysis of all her four limbs. She was unable to speak though she was conscious. She could not feed herself and required full time Hospital and nursing attention; any relaxation of medical and nursing care would result in her death. She knew the condition she was in. There was no prospect of her improving and her expectation of life was reduced to about five years.

After the trial, the trial judge awarded her general damage of f,17,500. In arriving at that figure, the learned judge considered the condition of the respondent after the accident, her loss of all amenities of life, pain and suffering, then he considered a comparable case of Wise Vs Koyrs ll962l OB 638 and came to the figure he awarded

On appeal, by majority, the Court of Appeal of England approved the approach adopted by the trial judge. That approval was upheld by the House of Lords. It is true that I arn not bound by these decisions but I must say that these are very persuasive authorities and I respectfully agree with them.

Office of Lord Hish Adnirul (supro). The learned trial judge in the case befble us stated in his judgrnent that:- In the instant case, the appellant's clairn for loss of earning was claimed in the Amended Plaint as general damage. That being so, the assessment is a matter for the discretion of the trial judge. That is the principle stated in the above cases and that is exactly what the trial judge did. He considered the appellant's condition after the injuries, his inability to apply fully his professional skills and cornparable local cases, and awarded him general damage of 50,000,000/:. The appellant cannot fix a figure for the trial judge to swallow. That is wlrat was rejected in Commisstoner for Executins

> "ln rny view, considering his position as a professional and considering that he can no longer apply his skills to the maximum due to the disability, I feel general damages of 50,000,000/: would suffice."

I cannot fault the learned trial judge in the principle he adopted. If the appellant had claimed his loss of earning as a special damage, as he had done in his original Plaint, and had proved it, lre would have been awarded that.

Mr. Matovu called upon us to enhance the general damages assessed by the trial judge. His reason is that the amount awarded is manifestly low, To this plea my answer is this: it is trite law that an appellate court can interfere with the exercise of discretion of the trial judge only where he has acted on ^a wrong principle or where the award rnade is rranifestly low or high as to occasion a miscarriage ofj trstice. See Mboso Vs Shah 11968I EA 93 ot 96. Quantification of general damage is one such exercise ofdiscretion by a trial judge. In the instant case, the trial judge acted on a correct principle as shown above. He also considered cornparable local cases to maintain uniformity of award of damages and in each of those cases the award did not exceed 10,000,000/:. He thought that this case was unique and he awarded what he did. By that standard therefore the award he made in this case is not at all manifestly low as Mr. Matovu clairned. On the contrary, it is on the higher side. I find no merit in the complaints.

In the result, I would dismiss the appeal with costs in favour of the respondent. As Mpagi-Bahigeine, J. A and Berko, J. A both agree, the appeal is dismissed on that term.

Dated at Karnpala this ^ "1" )J" day of ,: ^I u,tt-Q- ¹⁹⁹⁹

/\ll (--==.,-,2 \ r-^^-r^-rO G. M. OKELLO JI]STICE OF APPEAL.