THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NAKAWA

CIVIL SUIT NO. 300 OF 2012

1. OCHOM O. THOMAS
2. ARAA BETTY
3. OLIVA NAMUKASA
4. OMODOI TEDDY
5. ORANIT NOAH
6. OJOOTI FAITH
7. ODEKE MARCELLA        minors suing through                        PLAINTIFFS
8. IKIRING ESTHER              a next friend Ochom
9. OMATUM MUSA                O. Thomas
10. OKWI NATHAN
11. OKWI JOEL

VERSUS

1. MUKANKUSI CHARLOTTE
2. KYEERATEX LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS

BEFORE: HON. MR. JUSTICE WILSON MASALU MUSENE

JUDGMENT

The Plaintiffs brought this action against the Defendants for recovery of special damages, general damages for negligent cause of death, general damages for loss of expectation of life and earnings, general damages for mental anguish, shock and suffering and loss of dependency, general damages for loss of parentage, general damages for mental torture, damages for pain, suffering and loss of amenities, damage for nursing and attendance, interest costs and any other remedy this Honourable Court may deem fit.

The Plaintiffs case is that:-

1. That on 14^th December 2011, the late Adeke Marcella (herein after called the deceased) was travelling together with 1^st Plaintiff Ochom O. Thomas and Araa Betty in the 1^st Plaintiff’s vehicle a Subaru Reg. No. UAN 994H along Jinja Road High way moving away from Kampala Town.

1. That at the same time Olivia Namukasa the 3^rd Plaintiff was driving Motor Vehicle No. UAM 996N on the Jinja Road high way heading towards Kampala alongside the Fuso Lorry Box Body Motor Vehicle No. UAK 080C owned by the defendant.

1. That on reaching the spear motors the deceased and the Plaintiffs were knocked by Fuso Lorry Box Body Reg. No. UAK 080C belonging to the Defendants which was heading towards Kampala Town.  Copies of accidents sketch plan and police obstruct form 37 with list of the accident victims are hereto annexed and marked “B1” & “B2” respectively.

1. That as a result of the accident the deceased aged 60 years died on the spot and the Post-mortem report indicates that the cause of death was multiple crash injuries following the road traffic accident.  A copy of the post-mortem report and death certificate are hereto annexed and marked “C1” & “C2”.

1. That still as a result of the same accident, Ochom O. Thomas, Olivia Namukasa and Araa Betty suffered multiple injuries to their bodies and incurred and continued to incur medical expenses and have suffered mental anguish and damage for which they shall claim special and general damages.  Copies of the medical examination reports are hereto attached and marked “D1-D3”

The Plaintiff filed a suit by plaint on the 15^th November 2013.  Summons were issued to the Defendants to file a defense by 7^th day of February 2013.

The Defendants did not file a defense and on the 18/02/2013, the learned Registrar of this Court entered interlocutory judgment against the Defendants under Order 9 rule 8 of the CPR as the Plaintiff had served the Defendants through substituted service on 23/01/2013 in the observer paper.

The suit was then set for formal proof.

At the hearing, the Plaintiffs were represented by Mr. Omongole Richard.  The Plaintiffs called two witnesses i.e. Mr. Ochom O. Thomas and Ms. Araa Betty.

The procedure for formal proof was laid out in the case of Hajji Asuman Mutekanga Vs Equator Farmers (U) Limited SCCA No. 7 of 1995 reported in [1996] 3 KALR 70.  The Supreme Court found that in an interlocutory Judgment, the question of liability is no longer in issue.  What is in issue is the assessment of damages.

To focus the formal proof procedure, 2 issues were framed namely;

1. Whether the Defendants are liable in negligence for causing bodily injury and death to the Plaintiff.

1. Whether the Plaintiffs are entitled to the reliefs sought in the plaint.

I will deal with the above issues in order in which they occur.

As far as the first issue is concerned, Counsel for the Plaintiff in his submissions filed relied on the evidence of two witnesses who filed witness statements that is Mr. Ochom O. Thomas and Ms. Araa Betty.  Mr. Ochom O. Thomas testified that:

1. That on 14^th December 2011, I went shopping with my wife Araa Betty and my aunt Adeke Marcella and we travelled in my vehicle a Subaru Reg. No. UAN 994H.
2. That on our way home, there were not many cars on the road and traffic was flowing smoothly.
3. That I reached the spear motors junction along Jinja – Kampala highway and we were all fine heading back home.
4. That I was surprised to wake up in a hospital bed only to be told I was involved in a Motor accident around spear motors junction along Jinja – Kampala highway about 3 days back.
5. That while in hospital I was informed that my aunt Mercella Adeke who was with me in the vehicle died on spot.
6. That while still at hospital I had to disburse money to my relatives for the burial of my aunt who was killed in the accident and incurred a lot of expenditure on burial expenses.
7. That while still in hospital, I was also informed that my wife had been injured in the accident and she was also hospitalized at Nakasero Hospital Limited though she was discharged before me.  A copy of the Discharge Summary Form is hereto attached and marked “A”.
8. That I was also informed by relatives and friends who came to see me in hospital that my wrecked car had been dragged to the Jinja Road Police Station and was parked there.
9. That after my hospitalization, the Police medical officer examined me and I was issued with a Uganda Police Medical Examination Report dated 3^rd January 2012.  A copy of the same is hereto attached marked “B”.
10. That I was hospitalized at Nakasero Hospital Limited from the 15^th day of December 2011 and discharged on the 29^th day of December 2011.  A copy of the Discharged summary Form is hereto attached and marked “C”.
11. That still as a result of the same accident I and my wife Araa Betty suffered multiple injuries to our bodies and we incurred and continued to incur medical expenses to date.
12. That after I was discharged from hospital, I went to the Jinja Road Police Station to inquire on the occurrences of the night that left me and my wife in hospital and my aunt dead.
13. That while at Police, I found out that it was a Fuso Lorry Box Body Reg. UAK 080C belonging to the Defendants which was heading towards Kampala town which came to our side of the road and knocked us.  Copies of accident sketch plan and police obstruct form 37 with a list of the accident victims are hereto annexed and marked “D1” & “D2” respectively.
14. That I also found out that as a result of the accident the deceased my aunt died on the spot and the Post-mortem report indicates that the cause of death was multiple crash injuries following the road traffic accident.  Copies of the Post-mortem report and death certificate are hereto annexed and marked “E1” & E2”.

His facts were corroborated by the evidence of Betty Araa contained in her witness statement.

From the evidence set out in annexture to the witness statement, it is not in dispute that the Defendants Motor Vehicle which was being driven by the Defendants driver in the ordinary course of his employment knocked the Plaintiffs Motor Vehicle causing death of the deceased and personal injuries to the Plaintiffs for which they incurred and continue to incur medical expenses, for which they seek compensation as well as repair of their damaged Motor Vehicle.

The Defendant never filed a defence hence never adduced any evidence to controvert the evidence of the Plaintiffs adduced before court that the driver was not their agent and that the driver was not acting within his ordinary course of duty.  It is trite law that users of the road owe duty of care to other road users, it is equally true to say that where a person negligently injures another user he is in breach of that duty.  It must however be said that not all accidents are necessarily results of negligence perse although accidents may be evidence of negligence.  The duty is upon the Plaintiff who sues in negligence to prove that his injury was occasioned as a result of the Defendant’ negligence nearly in all cases except where the doctrine of res ipsa loquitur applies (Halsbury’s Laws of England 3^rd Edition Volume 15 page 268 Paragraph 491 and volume 28 pages 73-79 Paragraphs 75-79).  In the present case the Plaintiff did not plead the doctrine of res ipsa loquitur so the burden of proof lies on him in establishing that defendant’s employee was negligent and caused the deceased’s injuries.

In deciding whether or not a party was negligent the Court is usually guided by the surrounding circumstances in each case.   The circumstances usually taken into account are such things as the volume of traffic on the road at the particular time, the conditions of the weather and degree of visibility, the condition of the road (whether there was a corner, whether the road was slippery or there were bumps).  In the instant case the evidence from both sides clearly suggests that the road was visibly good as there was no rain, the traffic on the road was not much because apart from the cyclist and the Defendant’s vehicle there seems to have been no other traffic, there is no suggestion inclined to say that this accident could have been avoided by the Defendant’s driver if he had been careful.  It is my finding that the driver of the Defendants was negligent and was responsible for the accident.

On the other hand a master is liable for the acts of his servants committed within the exercise of his duty.  The master remains so liable whether the acts of the servant are negligent, wanton or criminal.  The test is whether the acts were committed in the course of the servant’s employment even though they were contrary to the orders of the master.

In the case of Muwonge Vs Attorney General of Uganda [1967] I EA 17 Court held that, “It is not in dispute that the principles of law governing the liability of the Attorney General in respect of the acts of member of the Police force are precisely the same as those relating to the position of a master’s liability for the act of his servant.  This being so, the legal position is quite clear and has been quite clear for some considerable time.  A master is liable for the acts of his servant committed within the course of his employment or to be more precise in relation to a Policeman, within the exercise of his duty.

The master remains so liable whether the acts of the servant are negligent or deliberate or wanton or criminal.  The test is; were the acts done in the course of his employment or, in this case within the exercise of the Policeman’s duty.  The acts may be so done even though they are done contrary to the orders of the master”.

In the case of Lukungu Vs Lobia Civil Appeal No. 4 of 2001, where Chief Justice (as he then was) Benjamin Odoki stated “As I understand the authorities, the law at present makes the owner or bailee of the car vicariously responsible for the negligence of the person driving it if but only if that person is

1. His servant, and driving the car in the course of his employment or
2. His authorized agent driving the car for and on his behalf.

To establish the existence of agency relationship, it is necessary to show that the driver was using the vehicle at the owners’ request, express or implies or on his instructions or duty thereby delegated to him by the owner”

The facts relating to this issue are very clear and it has not been disputed that the driver is not the employee of the Defendants and neither did the Defendants disown him.

In this case therefore, the Defendants are vicariously reliable for the acts of their driver.

Considering all the evidence on record as adduced by Counsel for the Plaintiff, I am of the opinion that the driver of the Defendants is to blame for the accident.  This leads me to the second issue which is whether the Plaintiffs are entitled to the reliefs sought in the plaint.

Counsel for the Plaintiff prayed for recovery of;

1. Payment of special; damages of Ug. 77,017,030/= (Uganda shillings Seventy seven million seventeen thousand thirty)
2. Special damages for loss of expectations of life and earnings amounting to Ug. Shs. 129,600,000/=
3. General damages for negligent cause of death, mental anguish, shock and suffering and loss of dependency, pain, suffering and loss of amenities.
4. Costs of replacement of the Plaintiff’s Motor Vehicle estimated at Ug. Shs. 27,435,500/= (Uganda Shillings twenty seven million, four hundred thirty five thousand, five hundred shillings)
5. Interest on (a) above at 49% per annum from date of cause of action till payment in full, and on (b-f) from date of Judgment till payment in full.
6. Costs of the suit.

I have considered Counsel’s submission and claim, and considering the circumstances of this case and having found that the Defendants are vicariously liable for the acts of their driver I do hereby Order the grant of all the prayers prayed for by the Plaintiff.

………………………………

WILSON MASALU MUSENE

JUDGE

9^th July 2014