[1995] UGHC 72


SULAIMAN KABUGO . PLAINTIFF

## VERSUS

ATIONEY GENERAL. . DEFENDANT.

**BEFORE:**

## THE HON. MR. JUSPICE A. O. OUMA

## **JUDGEMENT:**

This suit was filed by Sulaiman Kabugo a minor suing by his next friend Safina Ndibamanya. It claims against the defendant special damages for personal injuries allegedly caused by the negligence of Government driver or servant on or about 23.4.1987 at Bwaise along Kampala Bombo Road.

The case for the plaintiff is that he was walking along the extreme edge of the Road when NRA driver driving motor vehicle Registration No. 14 RA 006 drove so negligently that he caused the motor vehicle to leave the Road and seriously knocked him down and sustained mevere

personal injuries.

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Framed agreed issues are:

1. Whether the accident occurred.

2. Whether the plaintiff was knocked down by the defendant's motor vehicle.

3. Whether the defendant's servant was negligent.

4. Whether the plaintiff suffered the alleged or any injuries.

5. Quantum of damages recoverable by the plaintiff.

The plaintiff called six witnesses to prove his claim. The defendant called no witness or witnesses.

Counsel for the plaintiff joined all the issues together and submitted that in the absence of any evidence to contradict the evidence of the plaintiff and that of his witnesses, he invited court to find that an accident occurred, and that the defendant is vicariously liable for the tort.

The plaintiff is a young man. He suffered severe injuries. From the evidence of the doctor (PW1) $...$ /2

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the Plaintiff was knocked down by an army lorry Registration No. 14 RA 006. I submit that no Registration No. 14 RA 006 exists. It is public knowledge that all the army vehicles in service usually begin with word "H". Counsel contended that No. 14 RA 006 pleaded in the plaint and evidence of PW4 is the plaintiff's own creation to implicate the defendant in the case and deny the defendant facility to investigate by using a non-existing registration number so that the plaintiff reaps from a non-existing motor.

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With respect, this submission is not supported by evidence since the defendant adduced no evidence at all. I would have thought that where a party asserts non-existence of a fact or any thing inclusive of army motor vehicle registration numbers, the onus is upon him to adduce evidence to establish its non- existence.

In this present case, Joshua Semuju, a motor vehicle mechanic told court that he knew what happened to the plaintiff on 23.4.1987. The plaintiff had a traffic accident. He was knocked down by an army lorry. He was present. It was about 2p.m. The accident accurred at Bwaise.

Pw4 continued to testify,

" I was on the right side of Kampala Bombo Road. The motor vehicle was coming from Bombo side. It crossed from the left side of the road to the right side where we were and it knocked him down on the right side towards Kampala City. After knocking him down, we saw him under the motor vehicle. We pulled him out with the assistance of the soldiers who were on the lorry. I waw the number of the motor vehicle. It was No. 14 RA 006. It was a recorded Benz larry.

Pw5 Charles Fredrick Seruwo, Assistant Commissioner of Police, who was at the material time the O/C Traffic Kampala Area, testified that on 23.4.1987, he received a report that an accident had occurred at Kawempe at about 2p.m, involving an army vehicle registration No. 14 RA 006 and a human being one Sulaiman Kabugo, the plaintiff. He ordered investigation into the accident. The investigation was carried out. In cross-examination PW5, told court that he detailed ASP of Police Barobonwa to investigate into the accident. B. K Birobonwa, Pw6 testfied that on 23.4.1987, he was given a file

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May be, he was concentrating on his work and did not see the accident happen.

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of Managerica

SPIR-APPLICATES

With regard to the third issue the undented evidence of PW3, the plaintiff is that the accident happened on Bombo/Kampala Road at Bwaise. He was walking on the right side of the road off the tarmac. The motor vehicle went off the road. He found himself at Mulago Hospital.

In cross-examination, he told court that the motor vehicle was travelling from Bombo side. He was also walking from Bombo side. The He did not see it turn. He motor vehicle just went towards him. was off the tarmac road.

Added to the evidence of PW3, is the evidence of PW4 who was an eye witness of the accident. He was on the right side of the Bombo/Kampala Road. The motor vehicle was travelling from Bombo side. It <u>wrossed</u> the road from the left side to the right side of the road. It knocked down the plaintiff. He saw the plaintiff under the motor vehicle. In cross-examination. PW4 told court that he was standing as his exhaust pipe was being welded. The motor vehicle swerved and knocked down the plaintiff. The driver was driving at high speed.

From this evidence in the absence of any evidence to the effect that the motor vehicle skidded off the road, as a result of sudden mechanical break down and knocked down the plaintiff, I find that the motor vehicle was being driven at a high speed. Consequently the driver lost control of the motor vehicle which shiftded off the road and knocked down the plaintiff on the right side of the road along which he was walking off the tarmac. Accordingly I find that the defendant's driver was negligent. Issue 3 is resolved in facour of the plaintiff.

The law is that there is a duty on the driver of a motor vehicle to observe ordinary care or skill towards persons using the highway whom he could reasonably foresee as likely to be affected.

The 4th issue is whether the plaintiff suffered the alleged or any injuries. In relation to this issue, Phofessor Kakande Ignatious PW1, a Medical Doctor, testified that on 28.2.1991, he examined the

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him from under the motor vehicle. PW4 observed that the plaintiff was bleeding from his left thigh and stomach.

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こことについています。そのことを見ていることが、それにも見せると思い

There is ample evidence to support a finding that the plaintiff suffered injuries. This resolves the 4th issue in favour of the plaintiff.

With regard to the 5th issue, that is, quantum of damages recoverable by the plaintiff, counsel for the defendant submitted that PW1 told court that he examined the plaintiff in March, 1991, He admitted that there could be different assessments as assessed by doctors.

Counsel cited the case of Rushapa V. Fleet Transport Company Ltd. /1960/EA. 1025 which was followed in Feibi Talituka V. Addu Nakando HCCS No. 676 of 1978. Counsel submitted that in case the court was inclined to award damages, it should be guided by Bhamushanker Metha V. C. L Patel and Co. $(1994 - 55)$ EACA 196. He also referred court to Banker V. William /1970/AC 467 at page 491 and B Kitamire V. Ado Builders and another /1972/ H C B 36. The case of Pushpa V. Fleet Transport Company (Supra) is clearly distinguishable from the present suit in that in that case, the plaintiff was not sure whether he was hit by the lorry or its trailor.

The law is a plaintiff who claims damages for personal injury in a running down case has to prove that he was injured, that his injury was due to the defendant's fault and the fact and extent of his loss, and damage (See Winipeg Electric Company V. Geel / 1932/AC 690. In this present case save the extent of his loss. I find that the plaintiff by evidence has proved the facts.

However, in order to establish the liability of the defendant, he must prove that the defendant failed to exercise due care, that the defendant owed him due care and that the defendant's failure was the cause of his injury. (See Woods V. Duncan /1946/ AC 401 In this present case the plaintiff by evidence established the liability of the defendant, since in law there is a duty on the driver of a motor vehicle to observe ordinary care or skill towards

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I accordingly award a sum of shs. $6,000,000/$ = to the plaintiff and interest at the court rate from the date of judgment till full payment plus oosts of this suit.

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In the premise, judgment is entered in favour of the plaintiff against the defendant in the sum of shs. $6.000.000/$ = (Six million) general damages and interest thereon at rate from the date of judgment until fully paid plus costs of this suit.


Court: Judgment is delivered and signed in the presence of Mr. Ndozireho Counsel for the plaintiff, and in the absence of Counsel for the defendant though served with hearing notice, $\cdot \cdot$ and in the presence of Mr. Kamyuka Court Clerk.

> A. O. OUMA JUDGE $3/3/1995.$