[2024] UGHCCD 118

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) CIVIL APPEAL NO. 89 OF 2018 (ARISING FROM GENERAL APPLICATION NO. 372 OF 2017) STANBIC BANK (U) LIMITED :::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS ODORO SUSAN ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. JUSTICE BONIFACE WAMALA**

# **RULING**

## **Introduction**

[1] The Appellant being dissatisfied with the ruling and orders of **Her Worship Patience Lorna Tukundane**, Magistrate Grade One, delivered on the 16th day of August 2018 at Mengo Chief Magistrates Court, brought this appeal seeking orders that the appeal be allowed, the ruling and orders of the learned trial Magistrate be set aside and the costs of the appeal and in the lower court be provided for.

## **Brief Background to the Appeal**

[2] The Respondent filed General Application No. 372 of 2017 in the Chief Magistrates Court of Mengo for enforcement of a claim arising out of an assessment and computation made by the labour officer under the Workers Compensation Act. It was the Respondent's case that she had been an employee of the Appellant for an uninterrupted period of 31 years until 2014 when she applied for and was granted early retirement based on a medical condition she believed to have been sustained from work. The Respondent filed a complaint to a labour officer who referred her to a general medical doctor who assessed the Respondents permanent incapacity at 40%. The Appellant challenged the findings and the matter was referred to the Medical Arbitration Board which also made an assessment of permanent incapacity on the Respondent at the rate of 40%. The labour officer made a statutory calculation of the compensation at a sum of UGX 197,486,872/= (One Hundred Ninety-Seven Million Four Hundred Eighty-Six Thousand Eight Hundred Seventy-Two Shillings). The said computation and award was served upon the Appellant who did not respond within the prescribed period. The Respondent thus filed the application for enforcement of the said award before the Magistrates Court leading to the impugned ruling and orders.

## **Representation and Hearing**

[3] At the hearing, the Appellant was represented by **Ms. Josephine Muhaise** from S&L Chambers while the Respondent was represented by **Mr. Aloysius Onyait** from M/s BAOBAB Advocates. Counsel agreed to proceed by way of written submissions which were duly filed by both counsel and have been considered in the determination of the matter before the Court.

#### **The Grounds of Appeal**

[4] The Appellant raised four grounds of appeal in the memorandum of appeal, namely;

- a) The learned trial Magistrate erred in law in holding that the Chief Magistrates Court has no jurisdiction to interfere with the assessment of disability. - b) The learned trial Magistrate erred in law and fact in holding that in determining causal link, the applicant was not required to produce affirmative medical evidence establishing that the working condition caused the alleged harm. - c) The learned trial Magistrate erred in law and fact in holding that the Respondent had not produced legally sufficient evidence to support the contention that the Applicant's condition was not work related.

d) The learned trial Magistrate erred in law and fact in upholding the order of the labour officer.

## **Duty of the Court on Appeal**

[5] The duty of a first appellate court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower court. See: *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases including *Fredrick Zaabwe v Orient Bank Ltd CACA No. 4 of 2006*; *Kifamunte Henry v Uganda SC CR. Appeal No. 10 of 1997*; and *Baguma Fred v Uganda SC Crim. App. No. 7 of 2004*. In the latter case, **Oder, JSC** stated thus:

*"First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court"*.

#### **Consideration of the Grounds of Appeal**

**Ground 1: That the learned trial Magistrate erred in law in holding that the Chief Magistrates Court has no jurisdiction to interfere with the assessment of disability?**

#### **Submissions by Counsel for the Appellant**

[6] Counsel for the Appellant faulted the trial Magistrate's finding to the effect that Section 14(2) of the Workers Compensation Act does not vest the court with jurisdiction to interfere with the assessment of disability. Counsel argued that this finding is contradictory to the court's own ruling dated 1st November 2017 where the court found that it had jurisdiction. Counsel drew the attention of Court to Section 13(3) of the Workers Compensation Act which provides that a decision of the Medical Arbitration Board shall be final except if an aggrieved party goes to court; which court is defined in Section 1(1) of the Act to mean a magistrate's court established under the Magistrates Courts Act, presided over by a chief magistrate or a magistrate grade one, having jurisdiction in the area where the accident to the worker has occurred. Counsel argued that the import of the above provisions of the law is that matters of worker's compensation shall not be handled by any other court than the magistrates court within the area. Counsel further argued that the court will not only have the jurisdiction but also the mandate to hear the opposition to an assessment and to overturn the assessment upon a finding that the same was improperly reached or reached under the wrong principles.

[7] Counsel for the Appellant further submitted that the Appellant's opposition to the application challenged the assessment of the Medical Arbitration Board and the court had jurisdiction to interfere with the assessment of disability which the trial magistrate failed to correctly take advantage of even after allowing the testimony of Dr. Denis Otto Odokonyero. Counsel prayed to the Court to find that the trial Magistrate erred in holding that the Chief Magistrates Court has no jurisdiction to interfere with the assessment of disability.

#### **Submissions by Counsel for the Respondent**

[8] In response, it was submitted by Counsel for the Respondent that the learned trial Magistrate is being unfairly criticized for stating that the Chief Magistrates Court had no jurisdiction to interfere with the assessment of disability on account that the issue of jurisdiction to interfere with the assessment of the disability was not one of the issues framed for determination. Counsel cited the case of *Fang Min v Belex Tours & Travel Ltd, SCCA No. 06 of 2013* to the effect that on appeal, matters that were not raised and decided upon in the trial court cannot be brought up as fresh matters. Counsel argued that the issue of jurisdiction of the trial court was not one of the issues raised by the parties. Counsel submitted that the part of the trial Magistrate's ruling under challenge were merely comments made in interpreting the provisions of Section 14(2) of the Workers Compensation Act.

[9] Counsel also argued that Section 13(3) of the Worker's Compensation Act which was reproduced at page 3 of the trial Magistrate's ruling supports the trial Magistrate's comment that the court lacked jurisdiction to interfere with the assessment of disability. Counsel stated that the provision is to the effect that the decision of the Medical Arbitration Board is final unless a party aggrieved by the decision goes to court. Counsel submitted that there is no evidence on record to show that the Appellant was ever aggrieved by the decision of the Medical Arbitration Board. Counsel submitted that although court has jurisdiction to interfere with the decision of the Medical Arbitration Board, the same is only possible by the aggrieved party going to court which is distinguishable from the present appeal where the aggrieved party was instead dragged to court in the process of enforcing the compensation claim as computed by the labour officer. Counsel concluded that the Appellant's conduct of not challenging the decision of the Medical Arbitration Board made it final and it could not be interfered with by the trial court.

#### **Determination by the Court**

[10] It is pertinent to set out the provisions under Sections 13 and 14 of the Workers Compensation Act. The relevant provisions of Section 13 of the Workers Compensation Act are sub-sections 1, 2 and 3, provides as follows;

# *"Computed assessment of disability.*

- *(1) If the final assessment of disability made by a medical practitioner after a medical examination made in accordance with section 11, is disputed by the employer or the worker, the employer or the worker may apply to the labour officer to request that the dispute be referred to the medical arbitration board.* - *(2) The application for referral shall be made within a reasonable time from the date of receipt of the notice of final assessment.* - *(3) The decision of the medical arbitration board on the matter shall be final unless a party aggrieved by the decision goes to court." [Emphasis added]*

[11] On the other hand, Section 14(1) and (2) of the Workers Compensation Act provides as follows;

# *"Determination of claims.*

- *1) If any employer on whom notice of the accident has been served under section 9 does not, within twenty-one days after the receipt of the notice, agree in writing with the worker as to the amount of compensation to be paid, the worker may, in the prescribed form and manner, make an application for enforcing a claim to compensation to the court having jurisdiction in the district in which the accident giving rise to the claim occurred.* - *2) All claims for compensation under this Act, unless determined by agreement, and any matter, except disputes as to the assessment of disability under Section 13, arising out of proceedings under this Act shall be determined by the court, whatever may be the amount involved."* [Emphasis added]

[12] The statement in the ruling of the trial Magistrate that is subject of the first ground of appeal is found in the first paragraph of the last page of the ruling at page 280 of the record of appeal. It states thus;

*"Therefore, it cannot be concluded that the GATIOD system was used in reaching the permanent disability rate. Be as it may, this court has no jurisdiction to interfere with the assessment of disability as provided for under Section 14(2) of WCA"*.

[13] It is clear to me from a reading of the entire ruling of the learned trial Magistrate that her above finding was based on the fact that she was dealing with an application premised on Section 14 and not Section 13 of the Act. Section 13(3) is in clear terms; "the decision of the medical arbitration board on the matter shall be final unless a party aggrieved by the decision goes to court"*.* While it is correct that the "court" referred to in both Sections 13 and 14 is the same, the manner of going to the court is distinct in each. A party aggrieved with the decision of the medical arbitration board within Section 13 of the Act is directed to go to the court to contest the decision. In the present case, the Appellant upon being served with the decision of the medical arbitration board neither expressed any grievance nor went to court. Rather, as was the submission of Counsel for the Respondent, the Appellant was dragged to court; and within an arrangement different from that envisaged under Section 13(3) of the Act. It is not legally viable for the Appellant to argue that because they went to court after being taken there, they had thereby complied with the provision under Section 13(3) of the Act.

[14] I am fortified in the above view by looking at both the relevant law and the particular facts in issue. In terms of the law, if the Appellant had contemplated bringing an action within the ambit of Section 13(3) of the Act, there was no bar to them filing the application simply because the Respondent had also filed one within the ambit of Section 14 of the Act. The Appellant would have filed their application and if the court found it fitting, it would have consolidated the application. The other option available would have been for the Appellant to file a counter action. This procedure is however more common where the original action is brought by way of an ordinary suit, enabling the defendant to bring a counter claim. In the present case, bringing a distinct separate action by the Appellant was the more legally viable alternative which was well supported under the law given the clear and distinct provisions of Sections 13 and 14 of the Act.

[15] In terms of the facts of the case, the decision of the medical arbitration board was communicated to the labour office on 8th November 2016 and the labour office communicated the assessment to the Appellant on 14th November 2016. The Appellant was requested to communicate their agreement or not to the assessment by 5th December 2016; failure of which the matter would be placed before the court for determination in accordance with Section 14 of the Workers Compensation Act. The application by the present Respondent was instituted in the magistrate's court on 4th May 2017, over six months from the time the Appellant would have expressed their grievance towards the assessment by lodging action before the court. As a matter of fact, therefore, it is not correct as alleged by the Appellant's Counsel that the reason the Appellant did not file a separate action against the assessment was because they found out that the Respondent had filed one. The Appellant had more than sufficient time within which to lodge their action and they chose not to.

[16] As it stands, therefore, the Appellant neither commenced any action as envisaged under the law nor did they bring a counter action. As I have already indicated, I do not accept the argument by learned Counsel for the Appellant that by replying to the application brought by the Respondent, they thereby lodged their action in compliance with Section 13(3) of the Act. This argument is not tenable in terms of the law and on the facts of the case. As clearly appreciated by the learned trial Magistrate, Section 14(1) of the Act is for purpose of "enforcing a claim to compensation" by the injured worker. Within the strict premises of the application that was before the trial court, the trial Magistrate had no jurisdiction to interfere with the assessment of disability; her role was that of enforcing the assessment and computation. The rationale is not difficult to see. It is because if any party was aggrieved with the assessment, they were expected to have already made use of the provision under Section 13(3) to challenge the assessment. The learned trial Magistrate, therefore, rightly declined to exercise jurisdiction over a portion of the matter that had been cleverly smuggled into the proper proceeding before her. I have therefore found no merit in the first ground of appeal and it fails.

**Ground 2: The learned trial Magistrate erred in law and fact in holding that in determining causal link, the applicant was not required to produce affirmative medical evidence establishing that the working condition caused the alleged harm.**

#### **Submissions by Counsel for the Appellant**

[17] Counsel for the Appellant faulted the trial Magistrate for finding that the Respondent was not required to lead affirmative medical evidence establishing that the working condition caused the alleged harm basing on Section 3(7) of the Workers Compensation Act which is to the effect that any accident arising in the course of employment shall, unless the contrary is proved, be presumed to arise out of employment. Counsel argued that the section merely creates a rebuttable presumption in favour of the employee but does not absolve the employee of the burden to provide affirmative evidence when the presumption is challenged and neither did it repeal or limit the application of Section 101 of the Evidence Act. Counsel argued that the worker is bound to lead evidence to prove all the particulars of her claim. Counsel further argued that once the presumption was challenged by the evidence of Dr. Denis Otto Odokonyero, the Respondent was required to adduce evidence in support of the fact that the ailment complained of was occupational in nature and resulted from duties executed by her.

## **Submissions by Counsel for the Respondent**

[18] Counsel for the Respondent submitted that the application that gave rise to this appeal was filed to enforce a compensation claim pursuant to Section 14 (1) of the Workers Compensation Act and did not envisage a full trial until the Appellant sought leave of the court to produce an expert witness whose objective was to controvert the Respondent's evidence which was in form of medical reports. Counsel argued that the learned trial Magistrate correctly based on the material before her at the time to state that the Respondent was not obliged to produce affirmative evidence establishing that her medical condition was work related. Counsel submitted that what the Respondent had filed on record had raised the presumption under the law and the Appellant was then obliged to prove to the contrary; which is the reason as to why the trial Magistrate granted the Appellant leave to file the expert evidence to controvert the evidence already filed by the Respondent. Counsel concluded that the Respondent complied with Section 101 of the Evidence Act when she filed the five medical reports to prove that her condition was work related.

# **Determination by the Court**

[19] The crux of this ground of appeal is whether the Respondent had an obligation to adduce further evidence to rebut the expert evidence adduced by the Appellant at the trial. The position of the law under Section101 of the Evidence Act is that whoever desires any court to give judgement 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 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 law that the proof of the fact shall lie on any particular person. The law, therefore, classifies between a legal burden and an evidential burden. When a plaintiff has led evidence establishing his or her claim, he/she is said to have executed the legal burden. The evidential burden thus shifts to the defendant to rebut the plaintiff's claims.

[20] In the present case, the law makes a presumption in favour of the worker (applicant in the trial court). This is termed as a legal presumption. According to the Black's Law Dictionary, 5th Edition, page 1057, a legal presumption is defined as a legal assumption that a court is required to make if certain facts are established and no contradictory evidence is produced. It is also referred to as a rebuttable presumption; which according to the Black's Law Dictionary, 9th Edition, page 1306 is defined as "an inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence".

[21] In terms of Section 103 of the Evidence Act, this kind of presumption places the burden upon the respondent/ defendant as soon as certain facts are established by the applicant/plaintiff. Nevertheless, as submitted by Counsel for the Appellant, this legal position does not give a license to an applicant to just throw their case before the court and wait for the respondent to labour with proof; the applicant must present and establish certain facts that support their case for the presumption to be triggered.

[22] In the present case, the applicant (now Respondent) adduced facts showing the time she had worked with the Appellant, the history of her injury/ pain, the nature of the injury and the medical interpretation after examination. The Respondent also presented an assessment by medical experts indicating a percentage of disability suffered. In terms of the law on burden of proof, the Respondent had established the relevant facts which if not contradicted by other evidence ought to be believed by the court. As such, in terms of Section 3(7) of the Workers Compensation Act, as long as the worker established that an accident or injury occurred to them in the course of employment, and the contrary was not proved, such accident or injury was presumed to arise out of employment. It follows, therefore, that after triggering the legal presumption in motion, the worker had no more burden to lead evidence to establish as a fact that the working conditions caused the alleged harm. It remained the duty of the employer to lead evidence proving the fact that the working conditions had no causal link with the alleged injury; and thus rebutting the presumption. Where the employer successfully rebuts the presumption, in absence of any further evidence by the worker, the application by the worker would be unsuccessful. On the other hand, where the employer fails to rebut the presumption, the worker needs to do no more in that regard.

[23] The foregoing, in my considered view, is the context in which the trial Magistrate made the statement that is subject of the second ground of appeal. Before the trial court, the Appellant had not, by the expert evidence adduced, rebutted the presumption. The trial Magistrate was therefore right to conclude that in the circumstances before her, the applicant was not required to produce affirmative medical evidence establishing that the working conditions had caused the alleged harm. The trial Magistrate was right in this finding for the simple reason that the applicant (now Respondent) was covered by a legal presumption that had not been rebutted by the then respondent (now Appellant). The 2nd ground of appeal is also devoid of merit and it fails.

**Ground 3: The learned trial Magistrate erred in law and fact in holding that the respondent had not produced legally sufficient evidence to support the contention that the applicant's condition was not work related.**

#### **Submissions by Counsel for the Appellant**

[24] Counsel for the Appellant faulted the trial Magistrate for failing to give the evidence of Dr. Dennis Otto Odokonyero the correct evidential value it deserved because of the predisposition arising from the error of interpreting the import of Section 3(7) of the Workers Compensation Act. Counsel argued that the said predisposition affected her finding on grounds that the Doctor did not investigate the chores the Respondent was doing and could not accurately attribute the Respondent's condition to sitting at home and doing chores. Counsel also stated that the trial Magistrate wrongly faulted the expert's finding that the Respondent's condition could have been caused by her age ruling that the same was unsupported by empirical evidence. Counsel argued that the Appellant adduced credible evidence that exposed the various short comings in the evidence adduced by the Respondent in support of her case. Counsel prayed that the Court finds that the learned trial Magistrate erred in law and fact in holding that the Respondent had not produced legally sufficient evidence to support the contention that the applicant's condition was work related.

### **Submissions by Counsel for the Respondent**

[25] In response, Counsel for the Respondent argued that the expert witness procured by the Appellant led evidence that left the Respondent's evidence on record unchallenged and his testimony was totally destroyed in cross examination. Counsel argued that the evidence failed to dispel the five medical reports filed by the Respondent pointing to the fact that the Respondent's medical condition was work related. Counsel submitted that Dr. Odokonyero did not support his findings with any empirical epidemiological evidence to justify that the Respondent's medical condition was attributed to her age which led to the trial Magistrate finding that it was without basis and was an educated guess. Counsel stated that the five medical reports all linked the Respondent's condition to sitting for long hours at the work place and that although the Appellant's expert witness attributed the same injury to the performance of house chores, the assertion was not based on any evidence and was just a mere conjecture. Counsel also argued that ¾ of the medical reports reviewed by Dr. Odokonyero were by his senior colleagues for which he had high regard but he did not provide any valuable reasons for departing from their findings. Counsel concluded that the trial Magistrate was right to state in her ruling that the Appellant had failed to provide legally sufficient evidence to impeach and or discredit the evidence that had been filed by the Respondent.

## **Determination by the Court**

[26] This ground of appeal is an extension of the argument regarding the manner in which the trial court conceived and applied the burden of proof as opposed to the perception by Counsel for the Appellant. As I have noted above, under the second ground, the Respondent (then applicant) was covered by a legal presumption which, if not rebutted, left her case proved after she had established certain relevant facts. Once such facts were not contradicted or disproved by other evidence, they would be believed by the court. In respect to the case before the Court, once the Respondent established through medical evidence that an injury of a particular nature occurred to her in the course of her employment, and the contrary was not proved or this assertion was not disproved, the injury would be presumed to have arisen out of the said employment. It would then remain a burden of the Appellant (the respondent in the original action) to lead evidence establishing as a fact that the said injury was not occasioned by the working conditions or that there was no causal link between the working conditions and the injury. It is in that context that the trial Magistrate evaluated the evidence adduced by Dr. Dennis Otto Odokonyero, who was produced by the Appellant as an expert in the area of disability medical assessment and analysis.

[27] Let me first deal with the law regarding the manner in which the court deals with the evidence adduced by experts. Under Section 43 of the Evidence Act, when the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that subject, are relevant facts and such persons are called experts. It is a settled position of the law that opinions of experts are not binding on courts of law and are to be considered along with all the other evidence available before the court. The court may choose to reject such evidence if it is, in the view of the court, not hinged on a sound basis. See: *Kimani v Republic [2002] 2 EA 417* and *Dr. Kamanyiro Kakembo v Roko Construction Limited, CA Civil Appeal No. 05 of 2005*. In the case of *Davie v Magistrates of Edinburg (1953) CS 34*, it was held that expert witnesses cannot usurp the functions of a judge any more than a technical assessor can substitute his advice for the court's judgment. Experts must furnish the judge with the necessary scientific criteria, for testing the accuracy of their conclusions, to enable the judge to form their independent judgment by applying the criteria to the facts proved in evidence. The above constitutes a restatement of the old adage that, even in the presence of expert evidence, the court remains the expert of experts.

[28] In the instant case, it was the evidence of the Respondent that she worked for the Appellant for a period of 31 years and her work involved sitting for long hours. She adduced evidence of four medical reports, namely; one from the treating doctor – Dr. Nyati Mallon (at page 11 of the record of appeal); the second by the Case Clinic Occupation Health Team (at page 14 of the record of appeal); the third by Dr. Okullo Robert on the LD Form 31 (page 36 of the record of appeal); and lastly by the Medical Arbitration Board (at pages 33 – 35 of the record of appeal). It was the case for the Respondent that the said medical reports pointed to the fact that her medical condition was work related. On the other hand, the evidence by Dr. Odokonyero (the Appellant's expert witness) who reviewed the above cited medical reports produced by the Respondent was that the Respondent's medical condition could be attributed to other factors like sitting at home, doing house chores and her age.

[29] The learned trial Magistrate in her ruling considered the evidence of the expert witness (Dr. Odokonyero) and she did not find it as one that was hinged on a sound basis. Regarding the finding by the expert witness that the Respondent's medical condition was attributed to her age, the trial Magistrate held thus;

*"Under cross examination, Dr. Otto Denis admitted that he did not know the age of the applicant, he also stated that he had not done any epidemiological research on the subject of age as the only factor and neither did he bring any proven scientific theory. In my opinion, it would be illogical to state that once a person reaches that age bracket, she is predisposed to Labour Spondylosis and any other cause is ruled out without any scientific backing brought. I can therefore safely state that the conclusion reached by Dr. Otto Denis Odokonyero which is not supported by any empirical data is an educated guess."*

[30] I have given consideration to the contention by Counsel for the Appellant that Dr. Odokonyero arrived at his conclusion by elimination after reviewing the Respondent's medical reports and work environment; and came to a conclusion that the Respondent's condition was a function of her age because she had no history of past trauma and her work environment was not capable of making her contract the said condition. I find that the trial Magistrate correctly ignored this consideration in view of the fact that there was evidence before the court that the Respondent had earlier on in 2007 suffered from the said medical condition, which had improved after treatment. Secondly, the learned trial Magistrate was alive to the fact that although Dr. Odokonyero had introduced the hypothesis based on age, the expert had in cross examination conceded that he had not taken note of the Respondent's age and/or could not recall it.

[31] Regarding the finding by the expert witness that other factors like sitting at home and doing house chores could be responsible for the Respondent's injury, the learned trial Magistrate held thus;

*"Dr. Denis Otto Odokonyero attributes the cause of the injury of the applicant to other factors such as sitting at home, doing house chores and age, to have aggravated the applicant's medical condition. In the reports the expert witness reviewed above, there is no evidence that the previous medical reports recorded such history about the patient. It is not known how Dr. Odokonyero reached the conclusion that other chores not work related or sitting at home were the cause of the injury. In my opinion under normal circumstances a person who ordinarily works from Monday to Saturday has less time at home as compared to the work place. Therefore, a conclusion that other chores which chores he did not investigate or sitting at home as the cause of injury is not supported by any evidence at all*."

[32] The trial Magistrate then concluded by disregarding the evidence of the Appellant (then Respondent) as being of no probative value to the court and upheld the evidence in the reports adduced by the Respondent. I find that the trial Magistrate based on correct premises when rejecting the expert evidence adduced by the Appellant. I have also taken note of the fact that although Dr. Odokonyero was an expert in the area of disability medicine/assessment, he himself told the court that he had no specialty in the area of spinal surgery. He also conceded in cross examination that he neither personally carried out any examination on the Respondent nor did he establish the exact work the Respondent was doing in the Appellant bank; yet this would have been a more paramount consideration for purpose of causal link than the aspects of age and house chores that the expert delved in. It is pertinent to note that all the medical expert did was an evaluation and analysis of the reports of examination of the Respondent produced by other medical specialists.

[33] That being the case, it is not as obvious as it is being painted by Counsel for the Appellant that the conclusions reached by Dr. Odokonyero were hinged on a sound basis. The said conclusions are heavily limited by the factors pointed out in the immediately foregoing paragraph. In my view, the conclusions by the said expert witness are more of a technical evaluation of available medical reports than an exposition of substantive reality of the Respondent's condition. If the court were to choose between the expert reports produced by the Respondent on the one hand, and the one produced by the Appellant on the other hand, I am of the considered view that the former reports were more in sync with reality than the merely technical and possibly assumptive latter report. I am therefore in agreement with the learned trial Magistrate in her refusal to be persuaded by the expert report of Dr. Odokonyero and I find no reason to fault her finding in that regard.

[34] Counsel for the Appellant challenged the medical reports relied on by the Respondent on the further ground that they were written by experts who had not visited the Respondent's working environment which Dr. Odokonyero had done. In my view, upon evidence that the Respondent was examined by the said medical specialists, who took her medical history, including the nature of work she was doing and how long, I do not find that the failure to visit her work place had any substantial effect on their findings. Given the nature of the alleged injury and the nature of work, I am unable to see what the medical specialists could see on the ground that could not be established through description. No such facts were pointed out by the Appellant either. In agreement with the learned trial Magistrate, I find that the expert evidence adduced by the Appellant failed to rebut the presumption that there was a causal link between the Respondent's injury and her work place.

[35] It was further argued by Counsel for Appellant that the evidence in the reports adduced by the Respondent was riddled with inconsistencies. In my opinion, contrary to the submission by the Appellant's Counsel, it was not shown how the inconsistencies in the said reports were material to the casual link between the injury suffered by the Respondent and the work place. While I agree that such inconsistencies could have been material to the determination of the percentage of disability, it has already been established hereinbefore that the case before the trial court was not an application challenging the assessment. Rather it was an application for enforcement of the compensation claim upon failure by the employer to do what they were obliged to do under the law. The trial Magistrate, in my view, correctly ignored the alleged inconsistencies which were apparently irrelevant to the question of causal link between the injury and the work place.

[36] It follows, therefore, that the learned trial Magistrate was correct in her finding that the Appellant had not produced legally sufficient evidence to support the contention that the Respondent's condition was not work-related. This conclusion was properly premised on the law and the facts of the case that was before the trial court. This ground of appeal therefore also fails.

# **Ground 4: The learned trial Magistrate erred in law and fact in upholding the order of the labour officer.**

[37] I have considered the submissions of both counsel on this ground. It is not in dispute that the proceedings at the trial court arose out of an application to enforce an award of a labour officer made upon an assessment of permanent disability. The Appellant sought to challenge the enforcement of the said award by adducing evidence of an expert, Dr. Denis Otto Odokonyero, who had reviewed the available medical reports on record and come up with his independent findings; the gist of which was that the Respondent's injury was not work related and the rate of disability assessment had been wrongly reached. The learned trial Magistrate did not believe his evidence and upheld the decision of the labour officer. The premises upon which the learned trial Magistrate upheld the order of the labour officer have been the subject of consideration under the first three issues discussed above. In light of my findings herein above, it is clear that the learned trial Magistrate was not at fault in upholding the order of the labour officer. This ground of appeal also fails.

## **Decision by the Court**

[38] In all, therefore, all the grounds of appeal have been found to be without merit and have failed. The appeal is accordingly dismissed with costs. The ruling of the lower court is upheld and shall be enforced. The costs of the appeal both in this Court and in the lower court shall be borne by the Appellant.

It is so ordered.

*Dated, signed and delivered by email this 29th day of July, 2024.*

**Boniface Wamala JUDGE**