Court name
High Court of Uganda
Judgment date
20 September 2006

Dr Charles Mugenyi Kizza v Action Aid (Civil Suit-1997/1312) [2006] UGHC 65 (20 September 2006);

Cite this case
[2006] UGHC 65

THE REPUBLIC OF UGANDA



IN THE HIGH COURT OF UGANDA AT KAMPALA



CIVIL SUIT NO. 1312 OF 1997




DR. CHARLES MUGENYI KIZZA ::::::::::::::::::::: PLAINTIFF



VERSUS




ACTION AID :::::::::::::::::::::::::::::::::::::::::: DEFENDANT





BEFORE: JUSTICE J.P.M. TABARO





JUDGEMENT







The claim for general damages was filed after an accident that occurred on 7-3-1997 at Namukozi near Mityana in what was then known
as Mubende District. Since then Mityana has acquired a district status but this is not an issue in the case. The incident involved
a motor vehicle belonging to Action Aid Uganda, a registered non-governmental organisation and a motor cycle owned by the

Plaintiff, Dr. Charles Mugenyi Kizza. At the material time, around 10.00a.m., the defendant’s vehicle was being driven by one
Rose Namuyomba DW1 when it collided with the Plaintiff’s motorcycle as he (plaintiff) rode the motorcycle. Both motorists sustained
injuries. Rose Namuyomba complained of pain in the neck. Defendant’s vehicle, double cabin pick-up is registered as No.UPZ.327
while the motorcycle is described in the plaint as No. UV 1469. The police officer who visited the scene of the accident and drew
its sketch plan recorded the registration number of the motor vehicle as No. UV 1460. This discrepancy will be evaluated in this
judgment so as to determine whether or not it affects the merits of the case.







The plaintiff, alleges negligence as the basis of his claim. In the plaint it is averred that the defendant’s driver, Rose
Namuyomba, negligently drove the vehicle in question by pulling from the left hand side of Nambale - Mityana Road, and attempting
to turn to the defendant’s offices where it was not safe to do so. It is asserted, in the pleadings that she did not pay due
regard to the users of the road, especially the Plaintiff who was approaching from the opposite direction on the motorcycle in question.
Other particulars of alleged negligence are stated to be:-

(a)     
failing to brake, swerve or in any other way try to avoid the accident,

(b)     
failing to continue driving to the defendant’s premises after realising that she turned towards the premises in the wrong manner
and at the wrong moment.


The defendant denies liability and instead filed a counter-claim in the proceedings and attributes the accident to alleged negligence
on the part of the Plaintiff. It is alleged in the statement of defence/counter-claim that the defendant rode the motorcycle at the
time in issue at excessively high speed. It is alleged by defendant that:-



(a)     
Plaintiff diverted from the straight course and crossed to confront the defendant’s vehicle which had slowed down in preparation
for making a turn to traverse the road after the expected passage of the motorcycle.


(b)     
At the time the event took place the defendant’s vehicle was being driven at a very slow speed.


There is no report on the damage occasioned to the defendant’s vehicle but from the photographs of the vehicle it is clear
that it was damaged. According to the pleadings:-

(a)     
the headlamp needs replacement together with the corner lamp with one sealed beam 12 V, and front lamp,

(b)     
cost of panel beating and spraying assessed at 180,000/=

(c)     
replacing of the main lamp requires shs.117,000/=

(d)     
the total cost is stated to be shs.382,000/= including the cost for replacement of the headlamp, corner lamp, the sealed beam 12V
and front lamp.


In the counter-claim, in addition to the claim for the above special damages, there is a prayer for general damages.



From the plaintiff’s gait or manner of walking with a limp, it is fairly clear that he sustained injuries as a result of the
accident. They were testified to by Dr. E. Naddumba (PW1). According to the doctor’s testimony and the report complied by the
doctor after, assessing the plaintiff, the sustained injuries appear to be;

(1)     
a head fracture of the left side and ulna bones

(2)     
a closed fracture of the right femur

(3)     
a fracture of the right tibia

(4)     
abrasions of the right knee

(5)     
a closed head injury


After the plaintiff received first aid treatment in Mityana hospital, he was referred to Mulago Hospital, for further management,
where Dr. Naddumba performed the examination. The disability suffered by the plaintiff consequent upon the accident was assessed
at 60%. Dr. Nadumba (PW1) is a trained orthopaedic surgeon, holding a masters degree in medicine awarded by Makerere University in
1984. Initial treatment by operative method was unsuccessful, resulting in broken implants and failure of healing of the right femoral
and left ulna fractures. Plaintiff was recommended to undertake active exercise for the right knee and quadriceps muscles and ambulatory
exercises and partial weight bearing on the right leg with the help of crutches, court may also note that as hearing of the case
progressed the plaintiff appeared to be responding to treatment and improving a little.



A number of persons witnessed the accident or circumstances surrounding it. Some of them testified for either the Plaintiff or the
defendant. They are Ponsiano Sengonzi (PWII). William Gajule (PWIV) and Margaret Kibuuka (PWV), Rose Namuyomba DW1. As already indicated,
Geoffrey Serugo (DW3) and finally, the police officer, who visited the scene (as before) that is, Patrick Bingi (DWIII).



The evidence of Ponsiano Sengonzi shows that shortly before the accident took place he was driving his won motor vehicle a pick-up,
Reg. No.UDA 149 when Dr. Charles Mugenyi the Plaintiff, was ahead of him using Mityana Nambale Road. He described the plaintiff’s
speed as normal and asserted that the road was dusty. Plaintiff had a passenger on the carrier. In fact the passenger was Rose Kibuuka
who was a student of agriculture under going industrial training in the plaintiff’s department.



As he proceeded, shortly after, he found that the plaintiff’s motorcycle had got involved in an accident with the defendant’s
vehicle. The motorcycle was partially under the motor vehicle in that its tyre was under the mud guard of, the motor vehicle.



Dr. Mugenyi and Margaret Kibuuka were lying down on the road but Rose Namuyomba was not at the scene. Sengonzi (PW11) stated that
the scene of the accident was near the gate of the defendant, Action Aid Uganda.



At the time he arrived at the scene both Dr. Mugenyi and Rose Kibuuka were unconscious but as the two were being taken to hospital
the Plaintiff (Dr. Mugenyi) regained consciousness. According to Ponsiano Segonzi the point of impact was almost directly opposite
the gate of Action Aid offices.



It would appear, Margaret Kibuuka was seated on her lap on the carrier of the motorcycle as Dr. Mugenyi rode the motorcycle. She
claims to have witnessed the manner in which the accident occurred. According to her, as the defendant’s vehicle advanced from
the opposite direction the plaintiff slowed down and she (PWV) hit her head on his shoulders. There he (plaintiff) swerved to the
right hand side when the motor vehicle had also turned and so the collision in question took place. She does not recall which of
the two vehicles hit the other.



The accident, that is, collision took place in front of Action Aid offices in the middle of the road. After the accident she was
taken to hospital as plaintiff lay on the side of the road screaming.



In cross examination she asserted that she fell on Dr. Mugenyi and shortly after she fell off the motorcycle. At the same time, that
is, on further cross examination she stated that when Dr. Mugenyi applied the brakes, the pick up, that is, the defendant’s
vehicle was beginning to turn to Action Aid offices and had head indicators on.



The plaintiff (PWIII) alleged that when he reached Namukozi at the offices of Action Aid, Uganda, he was riding on the left side
of the road when he saw the pick up in question coming from the opposite direction, also on the same side of the road, that is on
the side of the plaintiff. The indicators of the pick up showed that it was entering the offices of the Action Aid Uganda. As it
was in front of him he (PW III) moved to the right so as to avoid collision. According to the witness the driver of the pick up swerved
from the right to the left and then from the left to the right. As she (DW1) moved the two vehicles, that is, the pick up and the
motor cycle collided in the middle of the road. As a result he (PW III) fell off the motor cycle, collapsed on the road, and became
unconscious. When he regained consciousness he realised that some people were carrying him from the middle of the road to the left
side of the road. He sustained injuries including fractures of the ulna and radius of the left arm, and many others as described
by Dr. Nadumba such as fractured tibia. After treatment in Mityana he was transferred to Mulago for further arrangement. Treatment
covered fixing of nails and an operation on the right leg. He was admitted twice, from 7-3-1977 to 4-4-1977, and from 19-5-1973 to
22-6-1998. He was advised to use crutches and reduce on field work duties because some of the bones had not fully united. He was
given a medical report (exhibit P1). He alleged, in testimony, that he can no longer did because of the injuries he sustained on
the arms and legs, and can no longer dance. He claimed that he could no longer carry out surgical operations and can only carry out
one or two activities a day. He is worried that he might be retrenched from the Public Service since he does not carry out normal
duties expected of Veterinary Surgeon. He is married with two children. During his sickness he was unable to have sexual intercourse.
He asserted that the accident occurred due to the negligence of the driver of the pick up (Rose Namuyomba) because she indicated
that she was entering the gate of the Action Aid and had moved to the left but changed and moved from the left side of the road to
the right. He further asserted that to enter Action Aid Uganda offices you turn to the left and the pickup’s driver had turned
to the left with indicators showing but changed and moved to the right. He prayed court to award him general damages, costs, and
interest.



The version given by the defendant is different. According to Rose Namuyomba (PW1) she was travelling to Mityana for the Women’s
Day construction work (on some shelters) when the workman told her that he had forgotten his tools behind and so she drove back to
collect the tools. As already pointed out she was driving motor vehicle Registration Number UPZ 327, double cabin Hilux pick up.
As she approached Action Aid offices at the corner she was the Plaintiff’s motorcycle with lights on, being ridden at a very
high speed. Before she stopped she swerved to the left of the road in order to save the Plaintiff’s life. Eventually she stopped
on the extreme left of the road. She hid her face on the steering wheel but before doing so she saw the plaintiff fall off the motorcycle.
The plaintiff continued and run into her vehicle, hitting the right hand side of the indicator. The pick up is a right hand drive
vehicle. She first saw him when he was in the middle of the road but at the time of impact when the two vehicles collided, the plaintiff’s
motor cycle was on the left side of the road. She heard cracking noise and so she realised that her vehicle had been damaged. When
she came out of her vehicle the plaintiff was rolling on the road, trying to stand up. The motor cycle had entered her vehicle. The
police came to the scene some 30 minutes later, when the traffic policeman arrived at the scene. He (policeman) took measurements
of the scene of the accident, after which both vehicles were taken to the police station at Mityana, with the motor cycle being carried
on the pick up. On the way she DW1 visited the Plaintiff and the passenger (the student of Agriculture) in the hospital. As she was
driving straight to Busubizi there was no need to switch on the lights. Her version is that the lights were not on. It will be recalled
that the plaintiff alleged that the defendant’s vehicle’s lights were on at the time the collision took place. She asserted
that the pleadings are not correct and the advocate who drafted them did not state what he was instructed to do. She was not turning
and had no intention of turning. From Kirundi on the way to Busubizi she went ahead to turn to the right in order to branch off to
the offices of Action Aid.



The workman who had forgotten his tools behind is Geoffrey Serugo (DWII). From his home at Kirundi one passes Action Aid offices
on the way to Busubizi were construction of shelters for the Women’s Day was going to be done. After picking the tools, the
pick up on which he travelled with Rose Namuyomba (DW1) got involved in an accident with the Plaintiff’s motor cycle which
was coming from the opposite direction. He (DW II) was seated on the left in the hind cabin. As they moved, Rose Namuyomba told him
that the motor cycle was moving too fast and so she would give way, and she moved to the left. The motor cycle knocked the pick up
on the right hand side, at the lamps. Namuyomba (DW1) moved to the left so as to avoid the accident. The plaintiff fell off the motor
cycle as did the girl who was being carried on the motor cycle. Both of them landed on the ground. According to Serugo the first
person to arrive at the scene was Kaya, the gate keeper of Action Aid. Shortly after Gajule, the Mityana Bishop’s driver followed.
The motor cycle was moving at a very high speed. He could tell from his seat in the pick up. The plaintiff and the girl were taken
to Mityana hospital, after the police arrived at the scene. Measurements of the scene were taken by the police. In cross examination,
Serugo (DWII) noted that Rose Namuyomba parked the vehicle on the grass, away from the road as the accident took place.



The sketch plan of the scene of accident was drawn by Patrick Bingi (DWIII). The vehicles involved were UPZ 327, and motor cycle
Reg. No. 1460 and they were still at the scene when he went there. According to his testimony, the motor cycle was lying down, across
the road while the motor vehicle was facing Mityana side. From the tyre marks he could tell that the motor cycle was moving on the
right side of the road. The motor vehicle was moving on the left side of the road, heading to Mityana.



He took measurements of the road and established that the motor cycle had encroached on the right side of the road. He (DWIII) did
a traffic course for 7 months. His academic standard is ‘A’ level. He has undertaken traffic trainers course for two
months and an international course, also for two (2) months. Action Aid offices were almost directly opposite the scene of accident.
In cross examination he asserted that the pick up left no tyre marks on the road. He could not tell whether there was swerving. He
accepted that the number of the motor cycle was 1460 and not 1469.



Since the versions given by the plaintiff and the defendant together with their witnesses differ substantially, the first task of
the court is to evaluate the evidence so as to determine which account represents the truth, in the opinion of the court. From the
evidence adduced by both sides it is clear that the question of credibility turns on which side accurately and truthfully monitored
how Rose Namuyomba and Dr. Charles Kizza managed their vehicles in front of Action Aid offices immediately before the accident took
place. Needless to emphasise the sketch plan of the scene and the report of the accident must be taken into account, contrasted and
evaluated against the testimony of the eye witnesses in determining the accuracy of the versions relating to the manner to which
the accident took place. As is well known court has discretion, to be exercised legally, whether or not the report and sketch plan,
as expert evidence should be relied upon, or whether it should be rejected Onyango Vs Republic [1969] EA 362.



The case for the plaintiff is that when the two vehicles were near the offices of Action Aid the defendant’s driver Rose Namuyomba
(DW1) turned towards the offices so as to cross to the same. When the plaintiff realised the turning of the defendant’s vehicle
he (plaintiff) turned to the right in an attempt to avoid the collisions; but instead of continuing to turn Rose Namuyomba turned
again towards the plaintiff’s side hence that two vehicles collided in the middle of the road. Rose Namuyomba denied the account
given by Charles Mugenyi and asserted that the two vehicles collided off the road. The accounts of other witnesses are crucial in
order to determine who of the two witnesses, Rose Namuyomba and Charles Mugenyi, gave the true version of the matter leading to the
collision.

Geoffrey Serugo (SWII) and Rose Namuyomba (DW1) contradicted each other on the important question of the point where Namuyomba stopped
the car at the time of the collision. According to Serugo, she (DW1) stopped the car on the grass, off the road as the motor vehicle
and the motor cycle collided. However, it is Rose Namuyomba’s testimony that in fact the car never left the road. There are
no significant contradictions in the evidence given by the plaintiff and his witnesses. If Geoffrey Serugo told the truth when he
stated that Rose Namuyomba told him that the plaintiff was riding the motor cycle too fast and therefore she was giving way and thereafter
mover to the right, then the rational thing to do was to swerve in order to avoid a collision but not to engage in exchange of words
or conversation to the effect that she was going to give way. I believe there was no time to talk to Geoffrey Serugo in the terms
suggested by her (Namuyomba).

I find the story told by Dr. Mugenyi quite straight forward and well coordinated by the passenger on his motor cycle, that is the
student undergoing apprenticeship, Margaret Kibuuka (PWV) when Dr. Mugenyi stated that he moved to the right because Namuyomba had
turned there instead of continuing on the left where she appeared to be heading in order to turn to her place of work, Action Aid
office. He, in my evaluation of the facts, was a witness who was honest and was ready to accept that he moved to the right instead
of the left because Namuyomba had decided to go to the right, but changed her side and moved to the left. Margaret Kibuuka was seated
on her lap but when the two vehicles moved close to one another there was cause to look in front, and could therefore witness the
manner in which the accident took place. She asserted that the defendant’s vehicle advanced from the opposite direction and
then plaintiff slowed down as the defendant’s driver (Namuyomba) swerved to the right where the motor cycle had moved in an
attempt to avoid a collision, leading to the accident in question. The account given by Margaret Kibuuka corroborates the version
given by Charles Mugenyi. The assertion made by Rose Namuyomba (DW1) to the effect that the plaintiff was moving at a very high speed
is discounted by Ponsiano Sengonzi (DW1) who stated that the Plaintiff was riding at normal speed and not too fast. Ponsiano Sengonzi
is an independent witness and on this point I accept his testimony in preference to that of Rose Namuyomba.



The police officer who took measurements of the scene of the accident testified that the pick up left no tyre marks on the road but
could tell from the tyre marks of the motor cycle that the plaintiff was moving on the right side of the road. However, the plaintiff
has explained away why he decided to move on the right. It was an attempt to avoid a collision because the Plaintiff had indicated
she was turning to the left, although she changed her side and moved to the right again two causing the accident in question. The
police officer, Bingi (DWII) did not explain a way why the police recorded the motor cycle’s numbers as Reg. No. 1460 while
in the Plaint it is described as No. UV 1467. If it was an honest mistake he would have said so. In any case, I do not find his evidence
helpful to the defendant. The crucial question is whether the defendant’s turn driver turned to the right after she had indicated
she was turning on the left and actually did move towards the left. As is well known drivers are supposed to drive on the left but
to avoid accidents they are entitled to swerve to the right, in my opinion.



For the above reasons I accept the version given by the plaintiff and reject the defence and the counter-claim indicating that she
(defendant’s turn) was turning to the left but changed immediately to the right. She acted negligently and I find the defendant
vicariously liable for her negligence. There is no suggestion from whether the plaintiff or the defendant that Rose Namuyomba was
acting outside the scope of her employment as a servant of the defendant. All the indications and the evidence show that the accident
occurred while she was on duty on behalf of her employer during the course of her work, within the scope of her employment. She was
transporting a workman and tools for work for the defendant. With my finding that the plaintiff was entitled to swerve to the right
and that his speed was normal no question of contributory negligence arises. On the first issue I find therefore, that the accident
was caused by the defendant’s driver. Consequently, I find that the plaintiff was not in any way contributorily negligent.
These findings lead to the issue of quantum of damages available to the plaintiff.



As is well known damages are compensatory in nature and hence the task of the court in assessing damages is to put the plaintiff
in the position he would have been as a veterinary surgeon working for Government, had this accident not taken place, in so far money
can do it.



-       
VISRAM & KARSAN VS. BHATT [1965] EA 789.

-       
At the time of the accident in 1997 the plaintiff was aged 34 years and now he is of the age of around 43 years. I remarked that although
the accident was grave he made considerable progress in recovering and he will be able to perform his duties, though not as efficiently
as before the accident took place. I would agree with counsel for the defendant therefore that the plaintiff’s counsel’s
claim of 1,000,000/= per month till the plaintiff’s retirement age is highly exaggerated. There are some precedent, to go by
without forgetting that no two accidents or injuries can be the same. Medical evidence put the plaintiff’s incapacity at 60%.
But let us deal with the claim for special damages first. It is to be noted that no prayer for special damages, supported by documentary
evidence was made although one of the paragraphs in the plaint states that “the plaintiff’s claim against the defendant
is for general and special damages.” Whereas documentary evidence is not a legal requirement special damages must be strictly
proved. However, the cost of the repair of the motor cycle at Shs.980,000/= is in evidence and I award the same amount representing
special damages. Plaintiff was admitted in Mulago Hospital run by Government and presumably this explains plaintiff’s little
emphasis on claims for medical expenses such as drugs, medical fees and equipment.

In the case of Nzaramba Ndamba Magnfique Vs. Happy Trails (V) Ltd and Anor. HCCS No. 734 of 1997 (unreported) before this court,
the plaintiff lost the right arm in a motor accident. He was an agricultural officer by profession. The capacity to perform his duties
as an agricultural officer was greatly diminished. He was a young man aged 25 years at the time. He was awarded shs.35,000,000/=
general damages. The present case is comparable in that the plaintiff’s capacity to work as a veterinary surgeon, who at times
is required to handle difficult and aggressive animals has been effected. Since the decision in Magnifique’s case was made
inflation has affected the purchasing power of the Uganda shilling. Considering all these factors and doing the

best I can of a difficult assessment, I award 80,000,000/= (eighty million shillings) in favour of the plaintiff as general damages
and shs.980,000/= special damages at the usual court rate of interest, with costs.



J.P.M Tabaro

Judge



The deputy Registrar (Civil) is directed to read this judgement after giving notice to the parties.





J.P.M. Tabaro

Judge

27-6-2006





20/9/06

Mr. Augustine Nshimye for the Plaintiff

M/S Sebalu & Lule represent the defendant (absent)

The case is for Judgment.



Court:

Judgment is read.



Deputy Registrar Civil