[1992] UGSC 30

THE REPUBLIC OF UGANDA

$\tau | \rho$

IN THE SUPREME COURT OF UGANDA

## $\mathtt{AT}$ MENGO

(CCRAM: MANYINDO, D. C. J., PLATT, J. S. C. & SEATON, JSC

## CIVIL APPEAL NO. 10/92

BETWEEN

| UGANDA AMERICAN INSURANCE | | | | | | | |---------------------------------------------------------------------------------------------------|-------|--|--|--|--|-------------------| | <table><tbody>OMPANY LIMITED::::::<math>\rightarrow</math> APPELLANT</tbody></table> | | | | | | | | | A N D | | | | | | | PHOCAS RUGANZU | | | | | | :: :: :: :: :: :: | | (Appeal from the Judgement and Decree of<br>Mr. Justice Louis Ongom dated 17th<br>February, 1992) | | | | | | |

$IN$

HIGH CCURT CIVIL CASE NO.416 OF 1989)

## JUDGEMENT OF SEATCN, J. S. C.

This is an appeal from a Judgement of the High Court at Kampala. The Appellant is a limited liability Company engaged in the insurance business. They had in 1978 employed as Marketing Manager one Lubega. His job was to solicit business from clients and to meet with brokers and agents. Because of his position he was provided with a car Nr: UXI 219.

On 4th April, 1987, this car was involved in an accident. It knocked down the respondent as he was about to step off the pavement and cross Kampala Road in Kampala town. The respondent was seriously injured. He required hospitalisation and medical treatment which continued for months after the accident. On 25th May, 1989 he sued the appellant for general and special

damages. He recovered a total of shs. $9,583,900/-$ .

This appeal is against that award. It aggrieved the appellant for two main reasons:

Firstly, because the learned trial Judge found that the accident was caused by Lubega in the course of his employment and therefore the appellant was vicariously liable. Secondly, because of the size of the damage awarded. I shall deal with these two issues, which were set out as grounds one and 2-3 respectively in the memorandum of appeal, seratim.

On the question of vicarious liability the learned Judge directed herself that the master is liable for the tortious acts of his servant committed within the scope of his employment as a servant. (p. 52 of the Judgement). The appellant had no quarrel with that as a statement of law. He queried, however, the way it was applied to the facts of the instant case.

Here it must be noted that the evidence as to the reason or purpose of Lubega's journey on the day in question left much to be desired. He was not joined as a party to the suit. Nor was he called as a witness. By the time of the trial he had left the appellant's employment. The reasons for leaving, it was said, had no relation to the accident.

The only evidence as to why he was driving the appellant's car on this particular evening at this particular spot was indirect. It came from Abel Seguya Kisuuli DWI, the appellant's General Manager. He stated that Lubega's duties required him occasionally to work

$... / 3$

on outside assignments. These were either assigned to him by his superiors or assumed voluntarily. They might involve his working beyond weekly office hours Monday to Friday. Equally they might necessitate his working on Saturdays when the office was normally not open. He would as well be expected to carry out his duty on. "normal working holidays." For these reasons, the car was assigned to Lubega full-time, for official as well as personal business.

There was a system in force whereby the appellant's Managers met on Monday mornings. They would then review the week's activities. If any of them worked on a Saturday, they would disclose this at the following Monday's meeting. On the Monday that followed Saturday, i.e. 6th April, 1987, Lubega reported the accident involving the respondent. However he did not report whether he had been cafrying out any assigned duties. Nor had he claimed any money as allowance for expenses, as he was entitled to do.

DWI therefore came to the conclusion that Lubega has not been carrying out any assigned duties at the time The learned trial Judge differed with of the accident. DWI on this point. He found on the evidence that Lubega committed the accident in the course of his employment duties.

Learned Counsel for the appellant pointed out that there was no direct evidence on this point. He submitted that once the fact of employment was admitted and the fact that Lubega was driving the appellant's car, the burden of proof lay on the latter to rebut the presumption that Lubega was acting in the course of his employment

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when he drove the car.

Learned counsel for the respondent submitted that the presumption had been rebutted and the burden of proof shifted when evidence was adduced that: the office was normally closed on a Saturday; and (2) there was no report by Lubega of any assigned duties carried out on the Saturday and no claim of allowance in respect thereof.

I am of the view, with respect, that there is no merit in the submissions of learned counsel for the respondent. There were no records kept of the Monday meetings by the appellant's managers. Lubega could have been called to testify what he was doing and where he was proceeding on the fateful evening. I would therefore uphold ground one of the appeal.

As to the second ground, the size of the award for damages, the matters may be sub-divided into two: general damages and special damages. I shall deal first with the latter.

On the question of general damages the learned Judge quoted the principle in assessing compensation for damages for personal injuries as explained by Lord Blackburn in Livingstone v. Rawyards Coal Co. (1880) 5 app. Cas. 25, 39 as follows:

> "Where any injury is to be compensated by damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can<br>do so, the loss which he has suffered as the natural result of wrong done to him."

He cited the list of items given by Micahel Wilkinson in his"Quantum of Damages for Personal Injuries" on p.2 as matters to be considered in assessing damages, as the following:

$1.$ Pain and suffering;

- 2. Disability and loss of amenities; - 3. Loss of expectation of life;

4. Loss of future earnings;

$5.$ Future expenses;

6. Loss of earning capacity;

To this was added the effect of inflation.

There can be no criticism of the Principle explained by Lord Blackburn in <u>Livingstone</u>'s case (above-cited) which the learned Judge purported to follow. The items listed for consideration by Wilkinson in his book (also above-cited) were substantially similar to those mention d by Sir Revor Gould, J. A., in his Judgement which met wit the approval of the other members of the Court of Appeal in Abid Hussein Quereshi v. Mrs. Pushpa (1961) . EA. 466 at pp. 468 as follows:-

> "I do not think that there is any dispute that the heads under which general damages properly fell to be considered in the<br>case were (a) loss of actual and prospective earnings (b) expenses related to the artificial limb (c) pain and suffering and (d) loss of amenities of life. Both actual and prospective loos of earnings were for reasons not material to the appeal included under the head of general damages. The cost of one artificial limb was included in the agreed special damages. I will say at once that, on my reading of the judgement under appeal, all of these matters were taken


"into consideration by the learned Judge in arriving at his award of £3,000. He did not specify the amount awarded under each head of damage and in that he followed normal practice. There was, then, no misdirection in any matter of principle and the only question is whether the amount awarded for general damages is so small as to make it an entirely erroneous estimate."

Abid H. Quereshi's case (above-cited) involved an employee of the Ministry of Works aged 23, who was struck while standing by the roadside by a vehicle driven by the respondent. His injuries included severe concussion and fractured limbs. His right leg was amputated after three operations, severe pain was suffered for six months and pain and suffering generally extended over a year.

In the instant case the learned Judge accepted the medical certificate from Nsambya Hospital, which was to the effect that at the time of the accident the respondent was aged 38, his injuries included cut facial wounds and fractures of the right neck humerus, right neck scapular and right femur mid-third. He was operated on and in his right tibia a Steinman's Pin was inserted while a U-slab was put in his right upper arm. He was discharged from Nsambya Hospital after 3% months. The plaintiff testified that it was found that he required further treat-He was discharged and remained at home for 3 months ment. before going back to Mulago Hospital where he remained for 3 months. Upon discharge he remained at home for 9 months. He then went to Mbuya Hospital where he underwent a third operation for removal of the nail. He was taken home thereafter but, unfortunately he did not heal.


After some weeks, the operating theatre at Mulago Hospital was then closed and there was no specialist for bonegrafting. He therefore went to Zimbabwe where on 8th January 1990 he was operated on at Bulawayo Central hospital, where he remained for one month.

After leaving the hospital in Ximbabwe the respondent still had to go twice a week for physiotherapy. He suffered great pain and could not sleep without sedatives until after the K. nails had been removed. Up to the time of the trial he could not walk for a long distance without feeling pain. As a result of the operations, his right leg is shorter by three inches. His shoes have to be raised. Since the first operation he used a pair of clutches and he now uses one crutch. Nevertheless he still limps a bit.

As a businessman, the respondent used to buy and sell produce. He had two stores at Kambuga and Kamwenge and stores at Nyansuibo in Ibanda sub-district. He used to sell the produce in Kampala and had a number of workers, who he supervised. He also had a lorry that he hired out to other business men. As a result of the accident he, stopped buying and selling produce in 1988 sold off the lorry to pay for his upkeep and medical expenses. His present ambition is to operate a textile shop.

In his judgement the learned judge explained that he had considered the cases cited to him by learned counsel: (1) George Kahinda vs. Abdul Malik Amarshi (H. C. C. S. No. 71 of 1969) where the plaintiff a self-employed building contractor suffered fractures, permanent loss

$\ldots/8$

of the use of the left arm and was unable to walk distances without pain; there were osteoarthritic changes in the knee and 10% limitation on its flexion. Permanent disability for 60% and Mead J. awarded shs.80,000/-, shs.80,000/=, which counsel for the appellant pointed out was equivalent to shs.11m/-(new currency) today; and (2) Ekubana Butagazibwa V. G. G. A. Holdings & Anor (H. C. C. S. No. 873 of 1964) where the plaintiff aged 57 years and a vegetable seller suffered injury to his leg wh which shortened it by 3". For loss of future income, loss of amenities and pain and suffering Jones J. awarded damages of shs.60,000/- which counsel for the appellant pointed out, was equivalent to today's shs.8.5m/-.

The learned Judge then observed in his Judgement (at p.59) as follows:-

> "In my view the injuries in the present case were more severe than those in any of above cases. I have taken into account the gravity of the injuries, relative youth of the victim, pain and suffering, disability and loss of amenities, loss of future income and the inflationary effects on our currency as well as the possibility of ostep-arthritis developing as a result of poor joining of the bones at the fracture site which necessitated the insertion of K-nail. In my view a sum of shs. $8m$ /- would be fair and adequate compensation for the very serious injuries systained by the plaintiff as a result of the defendant's ervant's negligence. In consdering the award of damages, I have borne in mind some imponderables such as early death and other calamities that would befall the plaintiff".

I believe, with respect, that had the considerations taken into account by the learned Judge (as mentioned in the passage above-quoted) been based upon medical evidence, there would have been no question of misdirection on any

$... / 9$ matter of principle; this court would have been constrained to consider then only whether the award for general damages was excessive as to make it an entirely erroneous estimate. But the only medical evidence produced in Court was the Nsambya Hospital Report, Exh. P.4. That detailed the extent of the injuries as diagnosed on 4th April 1987, 30 minutes after the accident and the treatment he received until discharge on 20th July 1987 "in fair condition on clutches". As for the appellant's condition after the follow-up review done by the orthopaedic surgeon in Mulago Hospital, no medical evidence was tendered.

With regard to his conditions when he entered Bulawayo General Hospital, there was tendered an admission card Ex. P2 which indicates that the appellant:

> "Slipped and fell - no pain on the right thigh"

There are also dates mentioned:

$.$ "8/1/91 $25/1/91$

$8/2/91"$

and the notation:

"...... femur.....

bone graft &.....plate done - for review in due........ $"$

$1''. . . . /91$

$.../10$

One would have expected some final medical report as to the appellant's condition at the time of the trial. Without it the task of assessing the extent of disability, if any, was extremely hazardous, if not impossible.

It is true that the learned trial Judge sew the fespondent in his court and may have observed that his shoes were raised and that he walked with a limp (as could be observed in this Court during the hearing of the appeal). But observation by the most careful and keen lay observer can be no substitute for the detailed examination and informed opinion of a medical profession expert.

Learned counsel for the respondent conceded that the learned Judge's view as to the possibility of Osteoarthritis developing could not be supported. But equally untenable, in the absence of expert evidence in my view, are the learned Judge's consideration of "some imponder-" rables such as early death and other calamities that would befall the plaintiff".

$\ensuremath{\mathrm{I}}$ would therefore hold that the learned Judge misdirected himself and took into consideration matters which he was not entitled so to do. Having said that, it must now be considered whether the award was so excessive as to make it an erroneous estimate. In addition to the two Uganda cses cited by learned counsel at the trial, there are the following other cases: In NAKALEMA V. JAMINDEE & CRS (1969) E. A. 185, the plaintiff sustained cerbal concussion, fractured pelvis and a fractured rib but her main injury was to her right femur, which was put on traction and immobilised for two months. She made a good recovery but remained with a limp owing to 1% in shortening of the right leg. She

was out of/work as a typist for 6 months. She did ≠her not have to attend hospital as an out-patient for physio-therapy. The plaintiff would have loss of amenities, including dancing, unless she wore special shoes. She was awarded shs. $35/$ =

$11 -$

In assessing general damages Sheridan J. considered J. K. Kitamirike v. E. Mutagubya (1965) E. A. 443 where Sir Udo Udoma, C. J., awarded the plaintiff, a professional man, who sustained similar injuries, including a lin, shortening of the leg shs. $50,000/-$ . In that case there was a prospect of osteo-arthritis and a further operation.

It is not possible to determine with mathematical precision what would be the equivalent today of shs50,000/in 1969. It seems however, the learned Judge in his Judgement in the instant case accepted shs. $60,000/-$ in 1964 as equivalent value today of shs. $50,000/-$ in 1965 or shs.35,000/- in 1969 as shs.8.5m/- today.an@hehsone. may ssuggest that the awards in Kitamirike's case and Nakelewa's -case were roughly equivalent to shs.10m/and shs. $5.5m/$ - respectively.

By comparison with the earlier awards to which I have referred had the possibilities of osteo-arthritis and early death been supported, confirmed by expert evidence it sould seem what the award of shs. $9.58m/-$ in the instant case was not too much on the high side. However in the absence of medical evidence, the award appears to me to be so large as to make it an entirely erroneous estimate. I would therefore uphold ground $2$ of the appeal. I would $\bullet$ reduce the sum awarded to shs.3m/- which appears to be fair

$.../12$

and adequate compensation for the plaintiff's serious injuries, pain and suffering, loss of amenities of life and some imponderables as well as the effect of inflation.

I now turn to ground 3, which was that "The learned Judge erred in law in awarding some of the special damages when damaged were not proved according to the standard of proof of those damages.

In the prayer of the amended plaint, special damages were particularised as follows:

- $(a)$ Cost of maintenance for plaintiff and attendants during 3½ months admission at Nsambya at shs.10,000/- per day =shs.1,150,000/-. - $=$ shs. 12, 200/-(b) Hospital fees (i) at Nsambya (ii) at Mulago $=$ shs. 4,800/- - Transport to Mulago daily for $(c)$ physiotherapy at shs.2,000/- per day from 21st July 1987 to 29th shs. $730,000/-$ July 1986(sic); - $(d)$ Transport to Mulago Hospital twice a week for physiotherapy at shs.4,000/- per trip from 21st July 1988 to 31st May 1989; = shs.168,000/- - (i) Air ticket to Zimbabwe $(e)$ and medical expenses there; U. S.\$7,20C ... $5$ . (ii) Purchase of crutches $Z$ \$

$... / 13$

The learned judge (at p.60 of his Judgement) referred to the factx that the plaintiff had failed to produce receipts to support his claim under sub paras. (a), (b), (c) and (d) of the prayer of the plaint. Nevertheless he decided to award him shs.100/-(new currency) per day, assuming that the appellant paid in old currency, totalling shs.11,5CO/-. As no explanation was offered in what currency the fees at Nsambya and Mulago Hospital were paid, he considered the sums claimed were "likely" to have been paid in new currency. We therefore awarded him shs.17,000/- (new currency).

The learned Judge then turned to the sums claimed (c) and (d) and found them "reasonable in the circum- $\cdot$ . stances". Therefore he awarded shs.926,500/- under subparagraphs (a) and (d). As to the claim of U. S. $$662$ under sub-para. (e) (i) for air ticket, which the defendant conceded had been proved, hex assumed the rate of exchange was then shs.960/- per U. S. dollar and this would represent a sum of shs.653,400/-. Finally, under sub-para. (e) (ii) which was also conceded, he assumed the exchange rate to be shs.800/- per Zimbabwean dollar. He did not consider the rest of the U. S.\$7,200 to have been proved and rejected them. Thus he arrived at a grand total of shs.1,583,900/- special damages.

Learned counsel for the plaintiff conceded at the hearing of this appeal that there was no documentary evidence to prove the claims listed in sub-paras. (a), (b), (c) and (d). However, with regard to the claims under (a), (c) and (d), all of which relate to maintenance and transport, he submitted it was unreasonable

to expect documentary evidence of such items and services as would have been provided.

As for the claim under (b), which related to hospital fees, the plaintiff was granted an adjournment to collect and produce the documentary proof in the nature of copies of receipts. He failed to get them because, he explained, it was Christmas vacation time and difficult to trace records at the hospitals.

In his testimony the plaintiff stated that while at Mulago Hospital he paid boarding fees and he also incurred expenses having food transported to him. The people who brought him food used to hire special vehicles or use his own car to do so. His expenses during the 31/2 months he stayed at Mulago Hospital were shs. 240/per day.

The plaintiff did not aall any of the people who brought food to him in support of his testimony. Nor did he indicate how much were the boarding fees he paid at Mulago or why, if he paid for his board, it was necessary to have (additional) food brought to him from outside.

Nowhere is it indicated in the record of proceedings or in the Judgement Whence the learned Judge derived the rates of exchange of the U. S. and Zimbabwean dollars. Were they the exchange rates at the time of the purchases or at the date of Judgement? I am of the view that the proper time should be the date of the purchase of the tickets and the crutches. However, the rate should be ascertained by oral evidence or a certificate from $11/15$

Bank officials or other recognised experts in currency exchange,

The learned Judge had directed herself in accordance with the observations of Mukasa Ag. J. (as he then was) MUDUKAYO WYUKU V. INYANSIO OKELLO H. C. C. S. NO. 29 of 1969) and Lord Goddard, C. J. in BONHAM CARTER V. HYDE FARK HOTEL LTD (1948) 64 T. L. R. Nevertheless, counsel submitted, when she came to apply the law to the circumstances of the instant case, she forgot the principles outlined in the above-cited cases.

With respect to the learned Judge I am of the view that what the plain ff did in the instant case was exactly what Goddard C. J. had decried in BONHAM'S case (above-cited). He simply wrote down particulars in sub-paras. (a) (b) (c) and (d) and "threw them at the head of the Court". He did not prove them. As he failed in this duty, I cannot see how the Court could order the plaintiff to make good the loss of damage claimed.

For these reasons, I would uphold ground 3 of the appeal and disallow all special damages except those claimed under para (e). I would allow the appeal and order that $(1)$ this case be remitted to the trial court; (2) that a Banker's certificate be obtained by counsel for the parties and produced by consent before the trial court of the equivalent at the time of purchase of U. S. \$622 and Zimbabweab \$5; and (3) such amount be eerti-

$... / 16$

$.16$

fied to the plaintiff as special damages.

I would also order that the appellant have his costs of appeal paid by the respondent. I would not however disturb the order for costs of the High Court that was made by the learned Judge because the respondenthad to bring the suit to recover damages; none having been offered or paid into court oy the defendant.

1st DAY OF DECEMBER, 1992 DATEDAAT MENGO THIS ..

## SGD: E. E. SEATCN

JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUNIRA REGISTRAR SUPREME COURT

 IN THE SUPREME COURT OF UGANDA

$\operatorname{AT}$ MÉNGO

MANYINDO, DCJ., PLATT, JSC,& SEATON, JSC) (CORAM:

## CIVIL APFEAL NO. 10 OF 1992

BETWEEN

UGANDA AMERICAN INSURANCE COMPANY LTD :::::: APPELLANT

## $A$ $N$ $D$

PHOCAS RUGANZU $...$ **RESPONDENT** (Appeal from the Jhdgement and Decree of Mr. Justice Louis Ongom dated 17th February, 1992)

$\text{IN}$

HIGH COURT CIVIL CASE NO. 416 OF 1989 JUDGEMENT OF PLATT, J. S. C.

Mr. Phocas Ruganzu brought an action against the Uganda American Insurance Company Ltd for damages arising out of an accident in which he knocked down by a vehicle $% \left\vert \mathbf{r}\right\vert$ belonging to the Insurance Company. He had many injuries and he needed treatment from the 4th April 1987 until 31st May 1989. He claimed over 2 million shillings which would appear to be special damages, and in addition he claimed general damages interest and costs. At the trial the learned Judge found for the plaintiff and awarded various sums ending up in a total of $9,583,900/-$ general and special damages. But as every one was painfully aware at the trial, the award of damages above depended on whether the vehicle was driven by a servant of the Insurance Company acting in the scope of his employment. In these cases the Court has to take care that the tragedy to the plaintiff, having been injured without fault on his part does not sway the Court into laying down an area of vicarious liability which would be unjust to the employer and unwise in the general arrangements between employer and

$...12$

$\mathcal{L}$

If for instance it became too onerous upon the employer to provide an employee with a company car that facility would have to be withdrawn causing a wide range of difficulties.

In this case, I am content to follow the findings of the learned Judge, that the vehicle involved in this accident bore registration number UXI 249, and was driven by Wilson Sebyala Lubega, who worked for the company as Marketing Manager. This vehicle had been given to Mr. Lubega to use it on official as well as personal business. The plaintiff alleged that he was standing on the edge of the pavement talking to a friend when suddenly the vehicle hit him. He was rendered unconcious and only regained consciousness in Mulago Hospital. The learned Judge found that the Plaintiff was not guilty of any contributory negligence and indeed found Mr. Lubega solely to blame.

The accident happened between 5 and 6 p.m. on a Saturday afternoon when in normal circumstances the work of an Insurance Company had ended. Nevertheless it was submitted that as Mr. Lubega was driving a car belonging to the Insurance Company and could use it either for company business or his own private business it must be presumed that Mr. Lubega was driving on Company business and thus within the scope of his employ-If that were so then of course under the general ment. doctrine of vicarous liability of the master the Insurance Company would be liable as employer of Mr. Lucega. But this presumption may be rebutted by the

$...13$

**Section**

employer so as to show that Mr. Lubega was not acting within the scope of his employment. So then what other facts in this case?

First of all Mr. Lubega was not sued together with the Company which employed him as it is usual to do. If the Insurance Company is liable for the negligence of Mr. Lubega the latter was also negligent and it is usually wise for the Plaintiff to sue both the master and servant. This usually results in the servant being before the Court so that the Court can ascertain what the position of the master was. As Mr. Lubega was not sued and he was not called by the defence the Court was unable to hear what Mr. Lubega thought he was doing. Indeed by the time of the trial Mr. Lubega had left the employment of the Insurance Company.

Mr. Kimuuli DWI) the Deputy General Manager testified that the offices of the Company were closed on Saturdays but that it was Mr. Lubega's duty to solicit business if possible out of office hours. In the first place as Mr. Lubega worked directly under Mr. Kimuuli if Mr. Lubega had been assigned special duties to carry out on that Saturday Mr. Kimuuli would have known about it. Indeed he would have been paid some money to carry out official duties if that was necessary. There were also arrangements if Mr. Lubega was expected to travel upcountry but that was not relevant in this case. He could have made an appointment with a client on the weekend would be considered another type of special duty. 5e

$\ldots$ /4

$: \div$

Hould also check on brokers and agents. While it was possible for him to act without being assigned work by the management he will always report on the following Monday to Mr. Kimuuli. On the Monday the accident Mr. Lubega reported the accident but did not report that he was doing any work at the precise Indeed Mr. Lubega and Mr. Kimuuli used to review time. the accident but Mr. Lubega never explained that he had been acting on Company business.

The situation boils down to this. Mr. Lubega drove a Company car either for the Company's business or for hiw own pleasure. It is said that the burden of proof passes from the Plaihtiff to the Defendant; because a presumption has arisen that Mr. Lubega was driving on Company business. The presumption is a weak one in this case, because it was a Saturday afternoon and as I have said the situation is equivocal. I will allow ghat some presumption may have arisen but the Insurance Company has been able to show that no report was made by Mr. Lubega, that he was carrying out Company duties. The Plaintiff has not sought to sue Mr. Lubega and his whereabouts are not known now to the defendant. In these circumstances there is nothing to show that the Plaintiff acted in any way as if he were acting in the course of his employment. If the Plaintiff can only say that Mr. Lubega might have been acting in the course of his employment and if the Company has no reason to believe or was not told by Mr. Lubega that he was

$... / 5$

carrying out Comapny work, one can only say that it is a weak case all round and that the Defendant has rebutted such presumption as the Flaintiff has raised.

$\overline{1}$

I would apply the general statement of the law in Morgans v/ Launchbury and Others 1972 2 All ER p.606 as follows in the first holding:-

> In order to fix liability on the owner $\mu(T)$ of a car for the negligence of its driver, it was necessary to show either that the driver was the owner's servant or that, at the material time, the driver was acting on the owner's behalf<br>as his agent. To establish the existence of the agency relationship it was necessary to show that the driver was using the car at the owner's request, express or implied, oron his performance of the task or duty thereby delegated to him by the owner. The fact that the driver was using the car with the owner's permission and that the purpose for which the car was being used was one in which the car was being used was one in which the owner had an interest or concern, was not sufficient to establish vicarious liability."

I would, with great respect, to the learned Judge beg to differ from him in his analysis of the fact, where he said, that,

> 'Yor all practical purposes Lubega could be said to be using this vehicle all the time on his master's business unless the master recalled it."

He said further that Lubega:-

"dealt with or used the gaid vehicle in the ordinary course of his employment at the material time. It could not be said that at the material time he deviated from his master's business and was on a frolic of his own."

$...16$

Apparently he came to this conclusion because the car was being used wholly or partially on the business of the master or for his master's purpose. It is difficult to

see upon what evidence those emphatic conclusions were reached. Mr. Lubega could as well be driving on his own affairs as on Company business and there is no evidence that he was using his spare time on behalf of the Company. As the learned Judge noted, the fact that the Company owned the car or had an interest in the car, or that the Company had given Mr. Lubega the in not opportunity to drive the car was/sufficient to fix liability on the employer. The can was given to Mr. 中国在中国中一般。中国中的中国国 Lubega expressly for his private use as well as Company use and there was no certainty for what use Mr. Lubega was using the car at the time of his accident. Consequently I am unable to agree with the conclusions of the learned Judge.

In those circumstance. I would allow the appeal, I would set aside the Judgement of the High Court, and I would dismiss the action with costs both in this Court and in the Court below.

DATED at Mengo this ...... day of .. December 1992.

$SGD$

S. T. MANYINDO DEPUTY CHIEF JUSTICE SGD: H. G. PLATT

JUSTICE OF SUPREME COURT

Note: Hon. Nustice Seaton is deceased.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT