JUDGMENT THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO
HCT 102-2018
FORMERLY HCT 03-CV-0147-2013
ASIMWE ALEX::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
VERSUS
1. MARACHA SAMA
2. SCOUL CORPORATION (U) LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JUDGE HIGH COURT
JUDGMENT
INTRODUCTION
Asimwe Alex hereinafter referred to as the plaintiff, sued Maracha Sama herein after referred to as the first defendant and Sugar Corporation of Uganda Limited (SCOUL) herein after referred to as second defendant, jointly and severally for special and general damages arising out of a motor accident which was alleged to have been caused solely by the negligence of the 1st Defendant, an employee of the 2nd Defendant, interest on both special damages and decretal amount till payment in full.
PLAINTIFF’S PLEADING
The special damages pleaded as per paragraph 4 of the Plaint were Ug. Shs. 12,477,000/= [Uganda Shillings Twelve Million, Four Hundred Seventy Seven Thousand] only.
The facts constituting the cause of action which arose on 25th October 2013 were stated as follows in brief:
Those at all material times, the 1st Defendant was the Employee of the 2nd Defendant based at Lugazi as a driver of motor vehicle registration number UAH 205D, which was a tractor, here in after referred to as the tractor.
That on the fateful day, around 9:30 a.m., along Bamungaya–Buikwe road, the 1st Defendant while in the course of his employment with the 2nd Defendant, negligently and recklessly drove the tractor belonging to the 2nd Defendant thereby knocking the Plaintiff, causing him grievous bodily injury as described on the Police Form that was annexed as A.
That as a result of the accident, the Plaintiff has suffered a permanent incapacity, under gone several operations and is still undergoing treatment which is costly and suffered mental anguish. The Defendants have not assisted him at all.
The Plaintiff contends that the accident was caused solely by the negligence of the 1st Defendant. Consequently he is holding the 2nd Defendant vicariously liable for the negligence of its employee.
The particulars of negligence as contained in paragraph 7 of the Plaint are as follows:
(a) Driving too fast, recklessly negligently without keeping proper look out in the circumstances.
(b) Driving in such a manner that did not give due regard to and disrespecting other road users.
(c) Failing to break, stop, swerve, or in any way avoid knocking the Plaintiff.
(d) Failing to keep to his lawful side of the road.
(e) Failing to obey or observe road traffic regulations.
(f) Failing to mitigate the injury by stopping motor vehicle to avail aid to the Plaintiff even after by passers signaled to 1st Defendant that he had killed a person.
The Plaintiff further pleaded special damages under paragraph 8 that totaled to Ug. Shs.12, 477,000/= [Uganda Shillings Twelve Million Four Hundred Seventy Seven Thousand] the details of which will be reverted to later in the Judgment.
The Plaintiff further stated the particulars of injuries as follows: Damaged Urethral structure, Loss of erection, broken pelvis, loss of consciousness for a month from 25th October to 17th November 2012, Deformity in both legs, concussion, strain in the neck, muscles and scalp tenderness in neck muscles, Resident tenderness in the neck muscles.
He further pleaded that he will rely on the principle of Res Ipso Loquitor and averments in paragraphs 7 and 8.
DEFENDANT’S CASE
The Defendants on the other hand in their joint written statement of defence 7th November 2013 admitted the employment relationship but denied the other allegations alleging that the Plaintiff filed the suit in bad faith as the Plaint contains deliberate falsehoods to create a cause of action that does not exist.
The Defence alleged that the Plaintiff was injured as a result of his own negligence after which he tried to defraud the 2nd Defendant.
They further pleaded the Plaintiff is not entitled to the claims and other reliefs sought in paragraphs 4 of the Plaint or any part thereof.
The Defendants further pleaded under paragraph 8 of the Written Submissions of Defence that the accident was caused solely by the Plaintiff and or alternatively was contributed to by the Plaintiff’s own negligence.
The Particulars of contributory negligence were stated as follows;
Riding his motor cycle at a high speed, recklessly without keeping a proper look out in the circumstances.
Failing to break in total disregard of his life and other road users.
Jumping off the motor cycle thus not giving due regard for his life.
The particulars of intention to defraud were that he forged the amount of Ug. Shs. 750,000/= [Uganda Shillings Seven Hundred Fifty Thousand] on the Medical Form of the outpatient department of Mulago hospital, forging the amount of Ug. Shs. 70,000/= [Uganda Shillings Seventy Thousand] on Mulago Hospital Medical Form serial number 1389698 and inflating the figure for medical services at Kasubi General Clinic by Ug. Shs.150,000/= [Uganda Shillings One Hundred Fifty Thousand] and inflating food expenses while at Mulago Hospital.
They prayed that the suit be dismissed.
LEGAL REPRESENTATION
The Plaintiff was represented by Mr. Joseph Lubega from Byamugisha, Lubega, Ochieng and Company Advocates, while the Defendants were represented by Mr. Sekonde Eddie from the Legal Department of the Respondent.
WRITTEN SUBMISSIONS
Both learned Counsel filed written submission which I have put into consideration while writing this Judgment. They are on record and I will refer to them as and when necessary.
ISSUES FOR COURT’S CONSIDERATION
Whether or not the Defendants were solely responsible for the accident.
What remedies are available to the parties?
LEGAL PRINCIPLES AND THE LAW APPLICABLE
It is trite law that in civil matters, the burden of proof rests on that person who desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he or she asserts exist and would fail if no evidence is given on either side unless it is provided by any law that the proof of any particular fact shall lie on any particular person. Sections 101 -103 of the Evidence Act chapter 6 Laws of Uganda refers.
The standard of proof unlike in criminal matters is on the balance of probabilities.
It is also trite that under the Common Law Doctrine of vicarious liability sometimes referred to as imputed liability, liability of another person is assigned to an individual or legal entity that did not actually cause the harm or injury complained of. In a work place context like in the instant case, an employer can be held liable for the acts or omissions of its employees, provided it can be shown that the injury or harm complained of occurred in the course of employee’s employment.
In other words vicarious liability is founded in the tort of another even though the person being held responsible may have not done anything wrong.
To hold an Employer liable three pre requisites must be satisfied:
There must be an employment relationship.
There must be a wrong doing committed by the Employer
The act must have been committed during the course of employment.
The Plaintiff’s Counsel relied on the doctrine of Res Ipsa Loquitur which in the Common Law of Torts, infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any Defendant behaved.
It is a Latin phrase meaning “the thing speaks for itself.”
The Defence on the other hand pleaded contributory negligence which is a common law defence available to a claim in tort based on negligence. If it is proved and available to the Defendant, it bars the Plaintiff from any recovery if they contributed to their own injury through their own negligence.
Court will be guided by the above legal principles and the law in resolving the dispute at hand.
8. RESOLUTION OF ISSUES.
I will resolve the issues in their chronological order.
Whether or not the Defendants were solely responsible for the accident.
It was agreed during the scheduling conference that the accident occurred that caused severe injuries to the Plaintiff, and consequently he underwent treatment and continues to go for treatment.
What was not agreed upon was the liability of the Defendant for the accident and the consequences thereof.
To support his case the Plaintiff called three other witnesses to wit PW2 KIGHOMA PHILEX, PW3 OKILLU PETER AND PW4 SGT APOO CATHERINE NO. 18556.
PW1 Asimwe Alex in his written witness statement dated 2/11/2016 from paragraphs 4 to 8 narrates how the accident happened at Bumuganya in the sugar cane plantation.
His evidence was to the effect that on the fateful day as he was riding his motor cycle registration number UDU 205D, he met with PW2 around the same place, stopped to pass over a message to him and they chatted for a while from the left side of the road. This was in the morning between 9:00 a.m. and 10:00 a.m. That in the middle of the discussion, he saw the tractor registration number UAH 205 D belonging to the 2nd Defendant driven by the 1st Defendant on a straight clear terrain. (Court observed that he made a mistake in the registration number of his motor cycle which was UDU 348X NOT 205D) and I have treated it as a typing error).
The 1st Defendant was driving on the right side of the road and the witness had parked off the left side off the road.
That as the tractor drew closer, they noticed it was moving very fast in a zigzag motion and whereas he attempted to scamper for safety, it had already lost control, crossed over to where he had parked, followed him into the sugar cane and ran over him at about 2 meters off the road into the sugar cane.
This part of evidence was not discredited during cross examination.
PW2 OKILLU PETER was with the Plaintiff at the time of the accident. His testimony according to his written witness statement dated 2nd November 2016 paragraphs 5 to 7 is to the effect that as they were exchanging pleasantries with the Plaintiff, he saw the tractor approaching them. They were standing on the left side off the road and the tractor was on the right side.
That as the tractor drew closer he noticed that it was being driven recklessly without due regard to other road users. He further noticed it was moving in a zig zag manner which prompted him to jump on the right side of the road. That it was apparent it had lost control. It followed the Plaintiff into the sugarcanes where he had scampered for safety, ran over him causing serious harm to him. His evidence was not discredited in cross examination.
PW3 No 18556 SGT APOO CATHERINE a Police Officer attached to Lugazi Police Station then, visited the scene of the crime. She found when the tractor and victim had been removed from the scene of the accident. She however used tyre marks since they were still fresh. According to her the tyre marks indicated that the tractor crossed from the opposite side for a distance of about one and a half meters. According to the sketch plan and abstract of the traffic report dated 21st November 2012, the suspected point of impact was 1 and half meters from the road in the sugarcane plantation. The tractor MOVED FROM THE ROAD AND ENTERED THE SUGAR CANE PLANTATION according to the re constructed sketch plan.
While under cross examination, the officer maintained the scene was very fresh and she could see the tyre marks of the tractor very clearly.
The 1st Defendant in his oral testimony informed court that he was a driver working for the 2nd Defendant. That on 25th October 2012 he was sent to get sugarcanes from Buwundo in tractor Registration number UAH 205 D. As he approached Rwankima, there was a tractor whose registration number he did not recall, coming from the opposite side as he was driving down wards.
Each side of the road had sugar canes plantation. That he thought the driver of the tractor was going to bypass him but he immediately swerved off towards a place where they had cut sugarcanes which was about four meters away.
That he did not see any motor cycle or any pedestrian apart from the sugar cane cutters.
That he immediately knocked the pavement and branched off to the sugarcane plantation and negotiated back to the main road.
That there was an Indian who saw him, screamed at him asking him what he had done.
That he realized he had made a mistake, continued to the sugar cane plantation and reported to security.
That he did not know at that moment that he had knocked some body. He went on to inform court that the sugar cane he entered into were not young but tall, so he could not see clearly.
(When he looked at the sketch map , court observed that he agreed with it save for the existence of the motor cycle which was true because at the time he drove towards the scene of the accident ,the motor cycle was not on the road as indicated on the re constructed sketch map)
In cross examination he said he learnt that he had knocked some body when he reported at security and that he was not reckless. That it was just an accident.
Careful evaluation of evidence from both sides reveals that the 1st Defendant was driving a tractor owned by the 2nd Defendant at the time of the accident. The Plaintiff had stopped by the road side having a conversation with his friend PW2. Indeed the 2nd Defendant admits that he swerved from the main road entered into the sugarcane plantation. According to him he was avoiding another tractor whose registration number he does not recall.
Since this was a sugar plantation belonging to the 2nd Defendant and the 1st Defendant being a driver in the Company, he ought to have known or at least later on the other tractor. Court is taking that statement as a lie to avoid liability.
The second Defendant clearly informed court how he swerved and went off the road to the sugar cane plantation. He told court how one of the Indians around screamed at him asking him what he had done.
The Plaintiff and his eye witness PW2 tried to run away from the tractor that had lost control. Unfortunately for the Plaintiff, he took the direction the tractor followed while his friend took the opposite direction and survived.
It is apparent that the Plaintiff was not riding the motor cycle and did not jump off from it injuring himself as alleged by the 1st Defendant. It is also not possible that he contributed to the accident by standing by the road side and chatting with a friend in a busy sugarcane plantation as submitted by Counsel for the defendant.
Roads in sugarcane plantations are not closed to the Public.
In any case the Plaintiff was not reckless in any way.
Contributory negligence is a defence available to the Defendant and as such must be proved. It is not enough to merely plead it. The Defendants did not adduce any evidence to prove that the Plaintiff was negligent and his negligent acts contributed to the accident.
To the contrary, the Plaintiff proved that he was lawfully standing off the road, chatting with his friend when the 1st Respondent recklessly rammed into them forcing them to scamper for life.
As regards the Application of Doctrine of Res Ipsa Loquitur, I do agree with the submission of Counsel for the Plaintiff on this doctrine.
It is obvious that the tractor was being driven at a high speed that made it difficult for the 1st Defendant to control it on the main road. Even if his story of an oncoming tractor was to be believed, which I have not, had he been at a reasonable speed, he would have avoided it without causing damage to anyone or anything.
In view of the above, I find that the 1st Defendant drove the tractor recklessly without due regard to other road users thereby causing injury to the Plaintiff.
And since the accident happened in the course of his employment with the 2nd Defendant, I hold the second Defendant vicariously liable for the mischief of his employee the 1st Defendant.
The first issue is resolved in favour of the Plaintiff.
WHAT REMEDIES ARE AVAILABLE TO THE PARTIES?
Having resolved the first issue in favor of the Plaintiff, it follows that he is entitled to the prayers made upon proof and satisfaction of court.
The Plaintiff prayed for special damages of Ug. Shs.12,477,000/= [Uganda Shillings Twelve Million, Four Hundred Seventy Seven Thousand]. His Counsel submitted that he has continued to have treatment and undergoes treatment and therefore prayed for special damages of Ug. Shs.50,000,000/= [Uganda Shillings Fifty Million], Loss of income of Ug. Shs.34,700,000/= [Thirty Four Million, Seven Hundred Thousand] and general damages of Ug.Shs.200,000,000/= [Uganda Shillings Two Hundred Million].
In cases of this nature, the party entitled to any remedy in terms of damages usually gets two types of damages: Special damages that are compensatory in nature which refers to economic losses such as loss of earnings, damage to property, medical expenses, and general damages for pain, suffering, and emotional stress. Special damages being compensatory in nature have to be specifically pleaded and proved. They must cover tangible harm that can easily be translated into monetary terms.
The burden of proof as mentioned earlier rests on that person who would fail if no evidence is adduced to prove an alleged fact.
Special damages being compensatory, the Plaintiff has the burden to adduce evidence proving them. In a case where medical expenses are incurred, the plaintiff has the duty to produce receipts of payment for the medical services if they were not free. And if there is loss of earnings, the Plaintiff must adduce evidence of the lost earnings.
On the other hand, general damages are non-monetary although awarded in monetary form for injuries suffered such as pain, suffering, and inability to perform certain functions or for breach of contract. They don’t have to be specifically pleaded and proved. They are awarded at the discretion of the Judge who is guided by the extent of the injury or damage done which assessment is based on the facts of the case.
In the instant case, the Plaintiff did not call any other witness to prove his special damages.
In his written statement dated 2nd November 2016 from paragraphs 16 to 32, he narrates his ordeal, how he was injured, how he has undergone several operations and how he continues to undergo treatment. He testified that his life has been shuttered by the accident which has left him impotent.
He tendered in court some medical documents that show the surgical operations that were done on him, the tests, and medication he received.
He tendered in court PF 3A where he was examined on 11th June 2013. It was marked as PE1. His injuries were described as dangerous harm. Exhibits PE2, PE3, were clinical notes. PE4 was a referral note for him to Mulago hospital, PE5 was his drug administration record, PE6 was a note for him as outpatient of Mulago and he was to go back on 25th July 2013. PE7 was his treatment sheet at Mulago hospital from 25th October 2012 to 4th December 2012. PE8 was the accident report general receipt of Ug. Shs.78,000/= [Uganda Shillings Seventy Eight Thousand], PE9 was the consultation fees from Forensic Consultation Clinic for Ug. Shs.25,000/= [Uganda Shillings Twenty Five Thousand], PE10 was an operation report, PE11 a medical note on review visit at Mulago Hospital dated 12th June 2013, PE12 a request form from La Sante Clinic, PE13 a receipt of Ug. Shs. 25,000/= [Uganda Shillings Twenty Five Thousand] from Forensic Consultation Clinic dated 11th June 2013, PE14 is a receipt from X-ray Care and Ultra Sound Center Ltd of Ug. Shs.100,000/= [Uganda Shillings One Hundred Thousand], PE16 a receipt of Ug. Shs.1,000,000/= [Uganda Shillings One Million] dated 16th April 2013, from a Medical Center on Plot No.8 Old Kiira road Ntinda, and PE17 a receipt of Ug. Shs.120,000/= [Uganda Shillings One Hundred Twenty Thousand] from Kampala Imaging Center.
In his Plaint paragraph 8, he pleaded that he will produce all the relevant receipts at the trial.
I am afraid that apart from the PE8, PE9, PE13, PE14, and PE16 AND PE17 which total to Ug.Shs.1.348,000/= (Uganda Shillings One Million Three Hundred Fourty Eight Thousand only), no other receipts were tendered and admitted. Other receipts that did not bear his name were rejected.
In his plaint he stated he was getting monthly wages and allowances in three schools namely as Head teacher at Alliance Secondary School, Buikwe, where he was earning Ug. Shs. 480,000/= [Uganda Shillings Four Hundred and Eighty Thousand], as a Teacher at St. Ceasars Academy Malongwe, Buikwe where he earned Ug. Shs.240,000/= [Uganda Shillings Two Hundred and Fourty Thousand], and as a DOS at Queens Way College, Bulyanteete, Lugazi where he earned Ug. Shs. 325,000 /= [Uganda Shillings Three Hundred Twenty Five Thousand]. Which he totaled at Ug. Shs.9,405,000/= [Uganda Shillings Nine Million Four Hundred and Five Thousand] as at the time of filing the suit.
He did not adduce any evidence about this earnings in form of appointment letters OR any payment vouchers. There was no evidence showing that the schools if at all he was employed, stopped paying him after the accident in his witness statement.
He failed to prove it completely.
Counsel attempted to give evidence from the bar by claiming it was an oversight in his submission.
I found the submission redundant because written submission are intended to support the evidence on record and the law applicable, and not to fill the gaps that were left out by the parties during the hearing of their testimony.
As regards general damages, the Plaintiff narrated to court his ordeal and the several surgeries he went through.
The medical notes admitted in court proved that indeed he was in hospital for more than a month as per exhibit PE7, the treatment sheet and that he had several tests.
He informed court that on reaching Mulago, he was immediately rushed to Intensive Care Unit as his abdomen was almost busting. That his abdomen was perforated by Doctor Isma, inserted the Foley catheter, and drained the bloody clots from the bladder.
He informed court blood oozed out of the bladder for three days, as several scans were being made. That he sustained a fractured pelvis, dislocated spine, and a raptured bladder.
In paragraph 23 and 24, he stated that:
“Various other operations were made on me including inserting liquids into my bladder until it was full and as for the pelvis a small metal was inserted to join my fractured pelvis girdle.
That because of I sustained a raptured urethral structure, a supra public catheter was inserted in the lower lobe of the abdomen to the bladder to drain out urine which I carry up to date and I am due for a fourth surgical operation……the previous three having not yielded the desired results.”
He went on to say he is on routine medical assessment and he has suffered both psychological and financial injury due to the reckless act of the defendants and that he lost his jobs at the schools he was working.
Counsel for the Plaintiff relied on the case of Kabunga Grace versus Kisambira Sentamu Ismail HCT-00-CV-0112 OF 2009, where relying on the case of Dr. Dennis Lwamafa VS Attorney General HCCS NO. 79/1983, [1992] 1 KALR Lady Justice Elizabeth Musoke held that in grant of general damages, the Plaintiff must be put in the position he would have been had he not suffered the wrong and the valuation would be as at the time of Judgment.
I agree with the principle in the above case and add that general damages are the direct probable consequence of the wrongful act of the Defendant complained of and include damages for pain, suffering and inconvenience and anticipated future loss.
When assessing general damages, the court should be guided by the value of the subject matter or in the instant case the health condition of the Plaintiff and the economic inconvenience the Plaintiff may have been put through as a result and the extent of the injury suffered. This was the holding in the case of Uganda Commercial Bank versus Kigozi [2002] 1 EA 305.
In cases that need interpretation of the medical conditions and assessment of the extent of the injury or percentage of deformity and disability, it is only fair and ideal that the party pleading the medical condition or disability relies on the evidence of a Medical Practitioner who examined him or if he cannot be found, one who is conversant in that medical field.
The reasons given by Counsel that the attendance of Medical Personnel could not be procured because of the costs involved is not tenable. In fact Counsel for the Plaintiff did a dis service to his client by not asking court for witness summons for the Medical Personnel.
The Plaintiff alleged he has become impotent as a result of the accident. Much as there is no evidence in rebuttal, in the absence of medical evidence to that effect, court has nothing to base on to draw a conclusion on that.
Sections 101 to 103 of the Evidence Act are not in vein. The party alleging certain facts has the duty to prove that those facts exist or existed. Being impotent is a fact that must be proved by medical evidence as court has no other means of confirming the allegation.
The primary duty of court is to hear evidence from the parties and apply the law to those facts to make a decision. Pleadings merely introduce the party’s case to the court.
Unless the facts pleaded in a Plaint are admitted or are of such a nature that they don’t need proof the party pleading those facts has the burden and duty to prove the facts before court.
He or she must convince court with evidence to believe his or her side of the story with a very light standard of proof which is on the balance of probabilities.
The Plaintiff alleged he continues to go for treatment and this being a court of justice would have not rejected medical expenses incurred after filing of the suit because it was clearly pleaded that he was still undergoing treatment. Nothing was adduced in court of his later medical bills or surgeries.
The same applies to his allegation of sexual impotency.
Sexual life to any human being more so to a young man like the Plaintiff is very important. Impotency is a medical condition that must be diagnosed by a Medical Practitioner. Even if Judges are experts to some extent, they can only exercise their expertise with what can be seen physically like a maimed limb that can no longer hold anything or walk, or blind eyes that cannot allow one to be gainfully employed or engage in any economic activities, ugly scars on the face that can make it hard for one to attract a potential spouse. The court can assess things that are obvious to the naked eye like different handwriting etc.
The Plaintiff ought to have adduced evidence to the effect that his sexual life was completely shuttered with no chances of ever fathering children or having sexual pleasure.
He did not. Court could not discern impotency by merely looking at him or looking at the medical documents that were not interpreted. Had he corroborated his evidence with an expert from the medical field, court would have awarded reasonable general damages because loss of man hood is akin to physical death to a man.
However, the above notwithstanding, it was an agreed fact that the Plaintiff suffered injuries as a result of the accident that led him to be hospitalized in Mulago for some time and had some surgeries done. The Defence did not dispute the accident but claimed he contributed to it without any evidence of contributory negligence. They disputed the money spent on medication and during hospitalization. However the witness that was brought challenging the expenses, DW2 was not found credible. His evidence was hearsay that is not admissible in law.
This court being an expert of experts, I will limit my expertise to the fact that being hospitalized for more than a month implies that the injuries were grave and the condition of the Plaintiff was life threatening. It implies that he suffered pain and anguish, was traumatized and had psychological stress which entitles him to general damages. In the absence of medical assessment of the extent of the injuries and percentage of disability, court is awarding Ug. Shs. 40,000,000/= [Uganda Shillings Forty Million] as general damages.
As regards costs, it is trite law that they follow the event. I don’t have any reason to deny the Plaintiff costs of the suit.
In conclusion and for reasons advanced above, Judgment is entered for the Plaintiff as against the 2nd Defendant who is vicariously liable for the reckless conduct of the first Defendant with the following awards made.
Special damages of Ug. Shs.1, 348, 000/= [Uganda Shillings One Million Three Hundred Forty Eight Thousand] as proved.
General damages for pain, suffering, trauma and psychological stress of Ug. Shs. 40,000,000/= [Uganda Shillings Forty Million].
Interest on (1) at the court rate from the time of filing the suit till payment in full and on (2) above at court rate from the date of Judgment till payment in full.
Costs of the suit.
Dated this 17th day of April 2019.
______________________________
Hon. Lady Justice Margaret Mutonyi
RESIDENT JUDGE
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