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Masembe v Sugar Corporation and Kagiri (Civil Appeal No. 1 of 2000)

Supreme Court · [2000] UGSC 37 · 2000 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision in a negligence/personal injury suit arising out of a road traffic collision
Decision
Appeal allowed; Court of Appeal decision set aside and High Court judgment reinstated, with liability reapportioned to 40% (2nd respondent) and 60% (taxi driver) and the defendants held jointly and severally liable.

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Holding

The Supreme Court allowed the appeal, holding that the Court of Appeal materially misdirected itself on the photographic evidence when it found tree branches had been placed on the road and that the 2nd respondent (the tractor driver) was blameless. Re-evaluating the evidence, the Court found both drivers negligent: the 2nd respondent for failing to remove the broken-down trailer wholly from the driving lane or give adequate warning, and the taxi driver for failing to keep a proper look-out and avoid the stationary trailer on a clear, straight road. Apportionment is interfered with only in exceptional cases; here the trial court's 80/20 split rested on misdirections and distinguishable precedents. Liability was reapportioned 40% to the 2nd respondent and 60% to the taxi driver.

Facts

On the night of 28 December 1993, a tractor-drawn trailer loaded with sugar cane, owned by the 1st respondent and driven by the 2nd respondent, broke down on the Kampala-Jinja road. The 2nd respondent left it parked on the extreme left side facing Jinja, partly off the road but still occupying part of the driving lane, to fetch a mechanic. The trailer was unlit, though reflectors were affixed to its rear. The appellant was a passenger in a mini-bus taxi travelling from Kampala to Jinja which hit and scraped the rear of the stationary trailer; the taxi overturned and came to rest about 36 metres from the point of impact. The appellant sustained serious personal injuries, lost property, and incurred medical expenses and loss of income. The road was tarmac, straight, in good repair and the weather was clear, with no street lights and no oncoming vehicle. The driver of the taxi was not called as a witness.

Issues

  1. Whether the Court of Appeal, as a first appellate court, failed to properly re-evaluate the evidence as a whole.
  2. Whether the 2nd respondent was negligent in leaving the broken-down tractor and trailer on the road without adequate warning.
  3. Whether liability for the collision should be apportioned between the 2nd respondent and the driver of the mini-bus taxi, and in what proportions.
  4. Whether the Court of Appeal erred in not considering the appellant's cross-appeal.

Orders

  • Appeal allowed.
  • Judgment and order of the Court of Appeal set aside.
  • Judgment of the High Court reinstated with its orders varied.
  • Liability apportioned 40% to the 2nd respondent (tractor driver) and 60% to the driver of the mini-bus taxi.
  • The two defendants are liable jointly and severally (not in equal shares).
  • Interest to run on special damages from the date of filing suit and on general damages from the date of judgment, at 10% per annum, until payment in full.

Key headnotes

Appeals — Duty of first appellate court to re-evaluate evidence
A first appellate court is under a duty to re-evaluate the evidence as a whole and reach its own conclusion; failure to discharge that duty is a matter of law that may found a ground of appeal.
Appeals — Re-evaluation of evidence by a second appellate court
A second appellate court is not required to and will not re-evaluate the evidence as the first appellate court must, except where it is clearly necessary, such as where it must determine whether the first appellate court erred in differing from the trial court on findings of fact and the conclusions drawn from them.
Negligence — Duty to avoid stationary obstacles on the highway
A reasonable driver exercising due care and attention does not collide with every stationary object wrongfully in his path merely because it is there; he must take reasonable steps to avoid it, whether driving by day or night, and a driver at night must be even more alert.
Negligence — Contributory negligence — Apportionment of liability
Where damage is caused by the negligent acts of two or more persons, liability is apportioned by comparing the negligent conduct of each tortfeasor to determine the degree of fault, both as to causation and as to the unreasonableness of the conduct; no act or omission carries a static degree of blameworthiness and each case must be assessed on its own circumstances.
Appeals — Interference with apportionment of liability
An appellate court will not interfere with a trial court's apportionment of liability save in exceptional cases, such as where there is an error of principle or the apportionment is manifestly erroneous.
Damages — Special damages — Strict proof
Special damages must be proved strictly; a claim for loss of earnings or profit cannot succeed merely on the plaintiff's assertion of the loss without other evidence to confirm it.
Damages — Interest — Date from which interest runs
An award of interest is within the discretion of the court; as a guiding principle interest runs from the date the awarded amount became due — on special damages from the date of filing suit and on general damages from the date of judgment, until payment in full — and the rate of interest is within the court's discretion.

Legislation cited (4)

  • Judicature Statute 1996 s.5
  • Judicature Statute 1996 s.6
  • Judicature Statute 1996 s.7
  • Rules of the Supreme Court r.29(1)

Cases cited (11)

  • Pandya v R (1957) EA 336
  • Khambi v Mahithi (1969) EA 70
  • Karisa v Solanki (1969) EA 318
  • Davies v Mann (1842) 10 M. & W. 546
  • Andereya Sinzimusi v Gomba Bus Service (Civil Appeal No. 8 of 1979)
  • Tart v Chitty & Co (1931) All ER (Rep) 826
  • Fernandes v Noronha (1969) EA 506
  • HARIFF vs
  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (No.2) (1970) EA 469
  • Sietco v Noble Builders (U) Ltd (Civil Appeal No. 35 of 1995)
  • (1968) 2 All ER 779
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.