“A prudent man will guard against the possible negligence
of others when experience shows such negligence to be
As these principles apply to the instant case, it is averred by the plaintiff that defendant placed concrete blocks/barriers in middle of a busy road along Yusuf Lule Road towards Garden City. This particular fact was not controverted in the defence filed by the defendant. The plaintiff further led evidence to prove that the barriers were indeed left in the middle of the road without any notice or warning as to their existence. Therefore, any reasonable person acting in the place of the defendant ought to have reasonably foreseen that any road user in the plaintiff’s stead might be injured by the presence of the road barriers the defendant had abandoned in the middle of such a very busy road in the manner the defendant did. Issue No.1 is, accordingly, answered in the affirmative.
Issue No.2: Whether there was a breach of duty of care by the defendant.
As already noted above, the defendant did not appear at the hearing of the case either by itself or by its lawyers. It follows that the evidence adduced by the plaintiff is unchallenged. The established position under such circumstances was restated in Uganda Revenue Authority vs. Stephen Mabosi S.C.C.A No. 29 of 1995, which cited with approval the case of Mate Bilhwangero Enos vs. Muhindo Oniz H.C.C.A No. 49 of 2016, and held that unchallenged evidence should be taken to be the truth. That is indeed the position which binds this court. It can only be added that such unchallenged evidence is accepted as the truth subject to it not being inherently incredible or not cogent.
In the instant case, the plaintiff adduced evidence of sketch maps of the area where the accident occurred, which were admitted as Exhibit P1. It shows the position of the accident and the road barrier abandoned by the defendant in the middle of the road. The plaintiff also led evidence of the motor vehicle inspection report which shows that the motor vehicle was under good mechanic condition prior to the accident. The evidence on record further shows that the defendant, a construction company, abandoned road barriers in the middle of the busy road and even then, failed to place any warning signs or reflectors to warn other road users, as the defendant undertook the construction works on the Yusuf Lule road. Such conduct of the defendant was, no doubt, negligent. The standard of care in this particular case, required the defendant construction company to place warning signs or reflectors so as to alert road users of the presence of the road barriers during day light and at night; which the defendant failed and/ or neglected to do.
The standard principle in cases of negligence, is that a reasonable person is expected and ought to take precaution against foreseeable risk although not every conceivable danger. The defendant is expected to take reasonable precaution in guarding against harm to others. In this case, the evidence adduced shows that the defendant fell below the standard of care appropriate to that particular duty, by failing to perform its duty towards the plaintiff as reasonably required in the circumstances. As a result of the defendant’s negligent conduct, the plaintiff rammed into the concrete barriers which extensively damaged his motor vehicle beyond repair. Evidence shows that the motor vehicle was so badly damaged and written off that its number plates had to be surrendered to URA, yet prior to the accident the vehicle was in a good shape. This is clear from the statement of particulars of the accident on court record.
It is also noted from its pleadings that the defendant attached some photographs which appear to show some warning signs on the road. However, on closer scrutiny, it is noted that they cannot be relied upon for a number of reasons. Firstly, whereas the date on which the accident occurred was 01/07/2016, the photographs bear the dates of 11/07/2016 and 20/07/2016, respectively, which were subsequent to the accident. Evidently, the warning signs could have been placed on the road after the accident occurred. It leaves doubt that the warning signs could have been put up as an afterthought in order to defeat any claim that would ensue against them as a result of the damage that occurred due to the accident.
Secondly, from their appearance in the photographs, the warning signs appear to be so light without any reflective material in them and are of paper thin content; which could easily be blown away thus totally not helpful, especially in the dark conditions. All that the defendant was reasonably required to do in the circumstances, was to remove the road barriers from the middle of the road to the side, but it neglected to do so. The alternative was for the defendant to put up clearly visible warning signs of the barriers or reflectors to warn road users of the danger, or cordon off the road. Even then, the defendant failed to do that yet knew or ought to have reasonably known that the area was dark without security lights. The defendant thus breached of its duty of care to the plaintiff as a road user in the circumstances.
Owing to the negligent conduct of the defendant, the plaintiff’s motor vehicle was damaged. It had to be towed away at a cost and expense to the plaintiff, to and from the different places. The plaintiff has shown by his evidence, that he is business man whose movements have been greatly hampered as a result of, and since the accident. As was observed in Uganda Revenue Authority vs. Stephen Mabosi case (supra) the unchallenged evidence of the plaintiff as PW1, is taken to be the truth and therefore, believed as such. Issue No.2 is answered in the affirmative.
Issue No.3: Whether the plaintiff is entitled to the remedies prayed for.
As previously noted, the above is undisputed evidence that the defendant exhibited negligent conduct when it failed to take reasonable precaution while undertraining a road construction on Yusuf Lule road, which caused the plaintiff loss and inconvenience. The plaintiff has adduced cogent and credible evidence to prove the same. In particular, the plaintiff prayed for special damages. In Hajji Asuman Mutekanga vs. Equator Growers (U) Ltd S.C.C.A No. 07 of 1992, the court held that special damages must be specifically pleaded and strictly proved.
In the instant case, under paragraph 5 of the plaint, the plaintiff specifically pleaded, and strictly proved the special damages by adducing in evidence copies of hire agreement and towage receipts. These were admitted in as evidence showing that the sums spent both in hiring alternative means of transport from 02/07/2016 amounting to UGX.40,200,000/= and towing charges of UGX.400,000/=. Accordingly, the plaintiff has met the criteria for the award of special damages, which is awarded to him in the sums of UGX.40,200,000/= and UGX.400,000/= respectively, all totaling to UGX.40,600,000/=.
The plaintiff also prayed for compensation for the loss of his motor vehicle which got damaged beyond repair and was written off and its number plates surrendered to the URA. The value, according to the plaintiff’s uncontroverted evidence, was UGX.70,000,000/= which is awarded to the plaintiff .
The plaintiff also prayed for aggravated and general damages. In the case of Superior Construction Engineering Ltd vs. Notay Engineering Ltd H.C.C.S No. 24 of 1994, it was held that the award of general damages is in the discretion of court which should be exercised judicially taking into account the circumstances of the case, and that general damages are compulsory in nature and they should offer some satisfaction to the infringed plaintiff. It is also noted that general damages are direct probable consequences of the act complained of. Such consequence may be loss of use, loss of profit, or physical inconvenience.
In the instant case, the plaintiff testified as how, as a business man, he has been greatly inconvenience and his businesses greatly hampered and suffered due to the negligent conduct of the defendant of breach of its duty of care. Whereas in this case court is reluctant to award aggravated damages, however, court is inclined to award general damages to atone for the injury the plaintiff suffered at the instance of the defendant’s conduct. Given the particular circumstances of the case, UGX 15 Million is appropriate and fair and awarded as general damages to the plaintiff.
The plaintiff also prayed for interest. Section 26 (2) of the Civil Procedure Act, provides to the effect that interest shall be in the discretion of court. This provision is fortified in the case of Crescent Transportation Co. Ltd vs. B.M. Technical Services Ltd C.A.C.A No.25 of 2000, where it was held that where no interest rate is provided, the rate is fixed at the discretion of the trial judge.
The plaintiff, we prayed for 25% interest per annum on general damages. However, court considers this rate inapplicable to the instant case given that no commercial transaction was involved to attract such a rate. It was an accident as a result of breach of the duty of care owed by the defendant to the plaintiff. Therefore, the amount of general damages and special damages shall attract interest at a rate of 8% per annum from the date of this judgment till payment in full.
Regarding the issue of costs, Section 27 (2) of the Civil Procedure Act, provides to the effect that costs shall follow the event unless for good reasons court directs otherwise. See also: Oketha Dafala Valentine vs. The Attorney General of Uganda H.C.C.S No. 0069 of 2004.
In the instant case, the plaintiff has succeeded in his claim and is, therefore, awarded costs of the suit.
BASHAIJA K. ANDREW