[2001] UGCA 59

### THE REPUBLI OF UGANDA

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# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. LADY JUSTICE L. E. M. MT'XASA. KIKONYOGO, DCJ HON. MR. JUSTICE S. G. ENGWAU, JA. HON, LADY JUSTICE C. N. B. KITUMBA, JA,

#### CIVTL APPEAL NO. 19 OF 2OOO

## VALLABHUDAS VTTHALDAS AND SONS LTD. I MAWANGALA ESTATE APPELLANT

#### VERSUS

FRANCIS MATEEKA ::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

[Appeal trom the declslon of the Htgh Court of Uganda at &nJa (bg Onega J.) dated 23-3-2OOO tn Ctutl Sult .hlo. 16 oJ 19981

# JUDGMENT OF KITUMBA. JA

This is an appeal against the judgment and orders of the High Court. The respondent sued the appellant for special and general damages arising from injuries which the respondent sustained when he was working for the appellant. The learned trial judge awarded the respondent special damages Ug. Shs, 47O,OOO/=, general damages Ug. Shs. 15,000,000/= and interest at 6oh per annum from the date of judgment until payment in full and costs of the suit.

The respondent's case was that he was employed by the appellant from 1994 until 1996. During his employment with the appellant, the respondent was assigned different jobs on the appellant's farm, for example, slashing the compound, loading sugar cane on the lorry and working on the jaggery machine. On the 16th August 1997, while the

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respondent was greasing the jaggery machine, one Okware, a fellow worker, switched on the machine. The respondent's fingers on the right hand were crushed and he became unconscious. He was hospitalised at Jinja hospital for one and a half months. Three fingers on his right hand were amputated. As a result of the accident the respondent was permanently disabled. The disability was assessed by Dr. Joseph Katende, PW2, to be 80%. In his plaint the respondent averred that there was breach of contract by the r0 appellant because he failed to provide safe conditions of work. He further averred that the appellant was vicariously liable for the negligence of Okware who switched on the jaggery machine while the respondent was cleaning it.

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In its written statement of defence the appellant denied liability. It was averred that the respondent was not in its employment. That the respondent was employed by one Alozio Mzee who was an independent contractor. The appellant further averred that the respondent was guilty of contributory negligence because he greased the machine with his bare hands when it was in motion.

At the trial the following issues were framed.

- 1. Whether there was breach of contract. - 2. Whether the defendant was negligent - 3. Whether the plaintiff suffered damages as a result of the defendant's negligence and

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Whether the plaintiff was entitled to the remedies sought for. 4

The learned trial judge on his own motion framed a fifth issue which was whether the plaintiff was employed by the defendant. In my view, that was improper because ordinarily the judge should have a-llowed parties to address court on it. However, I observe that this issue was the subject of the first ground of appeal which gave counsel for both sides to address this court on it. I am inclined to believe that no miscarriage of justice has been occasioned by that irregularity.

In his judgment the learned trial judge answered all the five issues in the affirmative. The appellant being dissatisfied with the finding of the learned trial judge has filed an appeal to this court on live grounds, namely:

"1. That the trial Judge erred ln law and la fact when he held that the Respondent was employed by the Appellant and yet the Respondent falled to prove there waa a contract of employment between the Respondent and the Appellant.

2. Thc trial Judge was wrong to hold that ALOZIO ![. ZDE was an agent or supenrisor overseelng the other employees on behalf of the Appellant when the evidence on record showed that the said Nozlo was

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only using the equlpment in which the Appellant had an interest or concern and the operation of the jaggery and payment of casual workers was Nozio's responsibillty as an independent contractor.

- 3. The trlal Judge wrongly evaluated the evidence and thereby arrived at the wrong conclusion that: - af there were no suflicient safeguards at the time ofthe accldent. - b) The machlnes were in different rooms whlle the switches were also in dlfferent rooms and yet the evidence on record showed that the automatic switch, the reverse switch, the emergency stop came with the machlnes and that they were in sight for alry one worklng on the machine. - As a result the trial Judge reached the wrong conclusion that the appellant was negligent and that the Respondent was not coutributorlly negligent. (sicf 20 - 4. The learned trial Judge erred in law when he awarded special damages that were not strictly proved. - 5. The trlal Judge's approach in awarding general damages waa wrong, the award was exorbitant and

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was also an erroneous estinate of the damages to which the Respondeat would be entitled if he had proved his case."

Ms Rose Mildred Nassiwa, learned counsel for the respondent, argued grounds 1 and 2 together, grounds 3 and 4 also jointly and ground 5 separately. I shall deal with grounds 1 and 2 together and consider the rest of the grounds separately.

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On grounds I and 2, counsel's complaint is that the learned trial judge erred in law and fact when he held that the respondent was an employee of the appellant and Alozio Mzee was an agent of the appellant. Counsel contended that the holding was not supported by evidence. The respondent claimed that he was the appellant's employee but produced no contract of employment between him and the appellant.

Counsel argued that a-11 defence witnesses testified that the respondent was not employed by the appellant. Mawanda Godfey, DW2, testified that greasing the machines was not the respondent's duty. This, in counsel's view, corroborated the evidence of the managing director of the appellant Rajnikent Madhvani, DWl. Counsel submitted that the appellant had contracted Alozio Mzee, who was an independent contractor to be responsible for jaggery production. The appellant had an interest in the machinery 20

but it was the independent contractor who employed the o respondent. She relied on Morgans V Laugh-Boy and others 1L9721 2 All ER.6O6. J. Barusahare V Attornev General. Supreme Court Civil Appeal No. 28 of 1993.

> In his written submissions Mr. Munulo, learned counsel for the respondent, adopted his submissions in the High Court ald made a few additional remarks. The gist of his arguments on grounds 1 and 2was in support of the learned trial judge's findings.

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In his judgment the learned trial judge believed the evidence of the respondent which was to the effect that he was an employee of the appellant. He found that the respondent started working on the appellant's farm in 1994. Madhvani, DWl, too, admitted in evidence that he used to see the respondent at the farm before Alozio was engaged as an independent contractor. The judge found that the evidence of Masaba Jackson, DW3, that the respondent was engaged at the estate alter Alozio had installed the machine in 1997 seriously contradicted Madhvani's evidence. However, Mawanda Godfrey, DW2, testified that the respondent together with others were employed at the factory. He and the respondent were engaged to work at the machines and that he did not know that the respondent was Alozio's employee. After reviewing that evidence the tria-l judge found that there was nothing to show that when Alozio came to the factory the respondent left the employment of

the appellant and that nobody knew the terms of employment, if any, on which the respondent was employed by Alozio. The learned trial judge concluded that it was certain that when Alozio came to the farm the respondent was already in employment of the appellant and there is no evidence that he had left his job. For the foregoing reasons he concluded that the respondent was employed by the appellant. I agree with this finding.

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The learned trial judge also found that Alozio was not an independent contractor because of the reasons stated below. Firstly, that there was no evidence of a written contractor between Alozio and the appellant and none of the w"itnesses knew the terms on which the alleged contractor was engaged. Secondly, that Alozio like the other workers, used to get paid weekly. Madhvani and his wife used to assist their manager, Ashok, in the management of the factory. The learned trial judge concluded that the appellant retained overall control and supervision of the machinery and production. Alozio was therefore not an independent contractor. t0 20

Masaba Godfrey, PW5, said in cross-examination "At the time of the accident the Madhvanis and Mr. Ashok were fully managing the estate and the machinery." This was evidence from the defence, which in my view, gave ample support to the respondent's testimony. I therefore agree with

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the finding of the trial judge that Alozio was not an independent contractor.

I now consider ground 3 in which the gist of the complaint is that the learned trial judge wrongly evaluated evidence and reached an erroneous conclusion that there were no sufficient safeguards at the factory.

As a first appellate court, we have the duty to re-evaluate the evidence that was before the trial court so as to determine whether its decision can be supported by the evidence on record. See Peters V Sunday Post [19561 EA 424. T}:e evidence regarding the safeguards at the factory is contained in the testimonies of the respondent, PWl, Madhvani, DWl, Masaba Jackson, DW3, and Mawanda Godfrey, DW2.

The respondent testified as follows:

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"The switch for the machlne is outslde the room where the machine ls. We are 8 people who work on the machines. There was nor particular person respousible for swltching on. Anybody could swltch on. There was no provision for locking the machine when one was greaslng there was no alarm system to warn some one lubricating the machiue that the machine was swltched on. The teeth of

) ## the machiues did not have protective guards. They have just been recently put ou"

In his evidence Madhvani, DWl, stated in examination in chief as follows:

#### "There were ample safeguards"

In his cross-examination he stated that:

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"Among the safeguards there was a stop switch for emergency and the reverse switch which can reverse the motiou. These come wlth the machines. After the accident the contractor requested for additional safeguards and I allowed them to be installed."

The testimony of Masaba Jackson, DW3, is:

20 "Madhvanl had safeguards e.g there were warnlng charts written in English, Swahill and Luganda"

On the other hand Mawanda Godfrey stated:

"For safety the machines had wire mesh placed around the crushers to prevent accident."

The evidence outlined above indicates that the switches were not in the sarne room as the machines so that any worker would be able to see whenever they were switched on. This was the evidence of the respondent which was not controverted by the appellant. The teeth of the machines were not guarded at the time of the accident. According to the evidence of the respondent the protective guards were put recently. Even Madhvani, DW2, said that the additional safeguards were added after the accident and at the request of the contractor. I agree with the learned trial judge's evaluation of evidence that there were no adequate safeguards at the time of the accident. It was the appellant's breach of the duty of care towards his employee by failing to provide sa-fe conditions at work that caused the accident to the respondent. As there was no witness who saw how the accident happened, the trial judge was right to find that the respondent was not guilty of contributory negligence. Ground 3 must, therefore, fail.

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On ground 4, the complaint was about the award of special damages. Counsel for the appellant submitted that the learned trial judge was wrong to award to the respondent special damages which were not specifically proved. She reasoned that the respondent who used to earn only three thousand shillings (3OO0/=) per week could not afford to eat meals costing a total of Shs. 47O,OOO|= when he was hospitalized. 20

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The evidence outlined above indicates that the switches were not in the sarne room as the machines so that any worker would be able to see whenever they were switched on. This was the evidence of the respondent which was not controverted by the appellant. The teeth of the machines were not guarded at the time of the accident. According to the evidence of the respondent the protective guards were put recently. Even Madhvani, DW2, said that the additional safeguards were added after the accident and at the request of the contractor. I agree with the learned trial judge's evaluation of evidence that there were no adequate safeguards at the time of the accident. It was the appellant's breach of the duty of care towards his employee by failing to provide safe conditions at work that caused the accident to the respondent. As there was no witness who saw how the accident happened, the trial judge was right to find that the respondent was not guilty of contributory negligence. Ground 3 must, therefore, fail.

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On ground 4, the complaint was about the award of special damages. Counsel for the appellant submitted that the learned trial judge was wrong to award to the respondent special damages which were not specihcally proved. She reasoned that the respondent who used to earn only three thousand shillings (3000/=) per week could not afford to eat mea,ls costing a total of Shs. 47O,OOO|= when he was hospitalized. 20

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The learned trial judge found that while the respondent and his attendant were in hospital they spent some money on food. Though no receipts were produced he found the figures of 10OO/= for each breakfast 1,500/= each for lunch and 1,500 each for supper as reasonable. He awarded a sum of 47O,OOO|-- for the 47 days the respondent and his attendant spent in hospital.

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In my view, the learned trial judge was right on this point. The law is that special damages must be specifically pleaded and strictly proved. However, this does not mean that they must be proved by documentary evidence in all cases. See Kvambadde Vs Mpigi District Administration t19831 IilCB.44. Ground 4 , too, must fail.

We now turn to ground 5 in which the complaint is about the award of general damages of Shs. 15,000,000/=. Counsel for the appellant criticised the trial judge for awarding the respondent the sum of Shs. 15,000,OOO/=. She complained that the judge acted on wrong principles because he did not take into account the status of the respondent. She contended that the judge was wrong to accept the medical evidence of Dr. Joseph Kakande, PW2, that the medical disability of the respondent was 80%o. She suggested a sum of Shs. 620,000|= general damages as adequate. She relied on Burno Kikambi V Masaka Municipal Council, Court of Appe al Civil Appeal No. 62

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## of L992 (unreported) Davies V Powell Duffrv Associated o Colliers Ltd. IL9421A. C.601.

Supporting the learned trial judge's award, counsel for the respondent, submitted that it was based on the injuries which the appellant received as a result of the accident. Total disability was assessed at 8Ooh. The respondent was a young man and his life expectancy was taken into account.

l0 It is trite law that in order to justify reversing the trial court's decision on the award of amount of damages, the appellate court must be convinced that the trial court acted on some wrong principle of law or the amount awarded was extremely high or so small as to amount to an error in law. see Ecta rul Ltd. V Geraldine Namublru Supreme Court Civil Appeal No. 29 of 1994 lunreportedl. The Courts in assessing the amount of damages must take into account the current value of money in terms of food and services that can be purchased at the time. See Mativa Bvabalema 20 and others V UEAnda Vs. UEanda Transoort Coml, anv.

# Supreme Court Civil Appeal No. 1O of t993 lunreportedl

Before awarding the respondent the sum of Shs. 15,000,000/: the learned trial judge took into account his disability which had been assessed at 8Oo/o. Dr. Kakande, PW2, actually examined the respondent before making the assessment. This was unlike in the case of Bruno Kikambi V Masaka Municipal Council (supral

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which counsel for the appellant quoted. The judge took into consideration the respondent's working life which could have been 50-60 years but cautioned himself about the many intervening factors which shorten people's lives these days. He also considered the fact that the respondent was a casual labourer with no security of tenure. He relied on the cases of Christopher Henry Kawuma V Coffee Marketing Board [1978] HCB 43.in which the appellant's right finger was amputated and compound dislocation of the right finger with permanent disability of lSo/o-2Ooh, and was awarded general damages of Shs.20,OOOl=. He noted a-lso Kiggundu V Uganda Transport Companv [1993] where the disability was assessed at 600/o. In that case the High Court had awarded general damages of Shs. 5,500,000/= but the Supreme Court increased it to 10,000,000/=.

In the circumstances I agree with the learned trial judge ^s award to the respondent of Shs. 15,000,000/= general damages. Ground 5 should also fail.

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In the result, I would dismiss the appeal with costs to the respondent here and in the Court below.

if, Dated at Kampala thrs t2 day of . r.2001.

## c.f.b. KITUMBA, JUSTICE OF APPEAL

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#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **HOLDEN AT KAMPALA**

#### CORAM: HON. JUSTICE L. E. M MUKASA-KIKONYOGO,DCJ. HON. JUSTICE S. G. ENGWAU,JA. HON JUSTICE C. N. B. KITUMBA, JA.

#### CIVIL APPEAL No. 19 OF 2000

#### **BETWEEN**

### VALLABHUDAS VITHALDAS & SONS LTD/ MAWANGALA ESTATE:::::::::::::::::::::::::::::::::: versus FRANCIS MATEEKA::::::::::::::::::::::::::::::::::

$20$

(Appeal from the decision and order of the High Court at Jinja (Onega J.) dated 23.3.2000 in H. C. C. S. No. 16 of 1998).

## **JUDGMENT OF S. G. ENGWAU, J. A.**

I have read a draft judgment of Kitumba, J. A. I agree with her that this appeal should be dismissed with costs to the respondent here and in the court below.

Dated at Kampala this 13^IK day of September 2001.

Barrell S. G. ENGWAU. **JUSTICE OF APPEAL.**

#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO,DCJ. HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

#### CIVIL APPEAL NO. 19 OF 2OOO

VALLABHUDAS VITHALDAS & SONS LTD/ MAWANGALA ESTATE.. APPELLANT VERSUS RESPONDENT FRANCIS MATTEKA

> {Appeal from the decision and order oI the High Court at Jinja (Onega J.) dated 23.3.20oo in H.c. C. S. No/'16 of 1 998

#### JUDGEMENT OF L. E. M. MUKASA-KIKONYOGO, DCJ

lhave read the judgment in draft by Kitumba, J. A. ldo agree with her that this appeal should be dismissed with costs to the respondent here and in the court below. As Engwau, J. A. also agrees, it is so ordered.

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Dated at Kampala this ...|.d,... ^Jf Day of September ²⁰⁰¹

L(\*:n^ L. E. M. MUKAST{-kTKONYOGO DEPUTY CHIEF JUSTICE

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