Wakilii

Nakawungu v Kafureka (Civil Suit 19 of 1993)

High Court · [1994] UGHC 73 · 1994 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for negligence and damages arising from a road traffic accident
Decision
Suit dismissed for failure to prove vicarious liability despite proving negligence and injury

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that although the plaintiff proved that the accident occurred and the driver was negligent, she failed to prove that the driver was the defendant's servant or agent at the time of the accident. Vicarious liability requires proof of the employment relationship and that the tort was committed in the course of employment. The burden of proving agency or employment lies on the plaintiff. The suit was dismissed with costs for failure to establish vicarious liability.

Outcome

Suit dismissed for failure to prove vicarious liability despite proving negligence and injury

Facts

On 23 March 1992 the plaintiff, eight months pregnant, was walking on the pavement along Kira Road to Mulago Hospital for an ante-natal check-up, accompanied by her father. She was knocked by motor vehicle UPP 247 which drove onto the pavement from behind her. She fell unconscious, was rushed to Mulago Hospital, and underwent emergency surgery. It was found that she had multiple injuries including perforated small intestine, ruptured uterine membrane, closed abdominal injury, and brain concussion. The foetus was delivered surgically but found dead with a head injury. The plaintiff remained hospitalised for ten days. The motor vehicle was registered to the defendant Kafureka. The plaintiff sued the defendant for general and special damages for personal injuries and losses, alleging the vehicle was driven negligently by the defendant's servant or agent.

Issues

  1. Whether the accident occurred involving the defendant's motor vehicle on the date and place stated in the Plaint
  2. Whether the defendant or his agent or servant was negligent
  3. Whether the defendant is liable to the plaintiff
  4. Whether the plaintiff suffered the alleged or any injuries as a result of the said accident
  5. What is the quantum of damages recoverable if any by the plaintiff from the defendant

Orders

  • Suit dismissed with costs.

Rules and key headnotes

Civil Procedure — Documentary Evidence — Non-Compliance with CPR O7 r14 — Medical Report Not Annexed to Plaint — Admissibility Where Document Existence Not in Doubt
Where there is no doubt of the existence of a document at the time of filing the suit, the court should as a general rule admit the document in evidence even though it was not produced with the plaint or entered in the list of documents annexed to the plaint as required by CPR O7 r14, provided the document was referred to in the plaint and its existence at the time of filing is established by evidence.
Tort Law — Negligence — Standard of Care — Driver on Pavement — Duty to Explain Position
A motor vehicle driver on the wrong side of the road or in an unusual position such as a pavement owes a duty to explain how his position is consistent with the exercise of reasonable care. In the absence of such explanation, a court may find that the driver did not exercise reasonable care and was therefore negligent.
Evidence — Burden of Proof — Vicarious Liability — Plaintiff Must Prove Agency or Employment Relationship
Under section 102 of the Evidence Act, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. A plaintiff who alleges that the driver of a motor vehicle was the servant or agent of the defendant bears the burden of proving that the driver was indeed the servant or agent of the defendant and was acting in the course of his employment at the material time. It is not enough to establish that the vehicle belongs to the defendant and then infer that the driver must at all times be the servant or agent of the defendant.
Tort Law — Vicarious Liability — Scope — Master Liable for Servant's Tort in Course of Employment
A master is vicariously liable for the tort committed by his servant or agent in the course of his employment. The scope of 'course of duty' is wide. An act may be done in the course of a servant's employment so as to make his master liable even though it is done contrary to the orders of the master, and even if the servant was acting deliberately, wantonly, negligently, or even criminally, or for his own benefit. Nevertheless, if what the servant did is merely a manner of carrying out what he was employed to carry out, then his master is liable.
Damages & Quantum — Special Damages — Strict Proof Required — Failure to Adduce Evidence
A claim for special damages must be pleaded and then strictly proved. Failure to adduce evidence to prove such a claim is failure to comply with the requirement of the law. A claim for special damages will fail for want of proof where no evidence is led to prove the amounts claimed.

Legislation cited (4)

  • Civil Procedure Rules O7 r14(1)
  • Civil Procedure Rules O7 r14(2)
  • Civil Procedure Rules O7 r18(1)
  • Evidence Act s.102

Cases cited (5)

  • MM DASANI Vs. AHMAD (1959) 3A 218 at 220
  • LUKYAKUZI vs. HOUSE & Tenant acE*tCIDS LTD. (1983) HCB 74
  • Grant vs. Sun shipping Co. Ltd. (19^8) 2 ALLER 238 at 2^77
  • Richley vs. Fanl (19^9) 1 »7LR
  • Muwonp-e v. A^ (19^7) 54^.17)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nakawungu v Kafureka (Civil Suit 19 of 1993) [1994] UGHC 73 (7 September 1994)
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.