Wakilii

Nakawungu v Kafureka (Civil Suit No. 19 of 1993)

High Court · [1994] UGHC 30 · 1994 Suit Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for damages arising from motor vehicle accident
Decision
Plaintiff's claim dismissed for failure to establish vicarious liability despite proving negligence and injuries

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that although the plaintiff established that a motor vehicle owned by the defendant knocked her on the pavement causing her serious injuries including loss of her eight-month pregnancy, she failed to prove that the driver at the material time was the defendant's servant or agent acting in the course of employment. Without proof of vicarious liability, the defendant could not be held liable merely because his vehicle was involved. The burden of proving the agency or employment relationship rests on the plaintiff. Suit dismissed with costs.

Outcome

Plaintiff's claim dismissed for failure to establish vicarious liability despite proving negligence and injuries

Facts

On 23 March 1992, the plaintiff, eight months pregnant, was walking on the pavement along Kira Road from Wandegeya towards Mulago Hospital for an ante-natal check-up, accompanied by her father. She was knocked by motor vehicle No. UPP 247 which came from behind and drove onto the pavement. She became unconscious and was rushed to Mulago Hospital where emergency surgery revealed perforated small intestine, ruptured uterine membrane, and brain concussion. The foetus was found dead with head injuries. The plaintiff spent ten days in hospital and suffered permanent disability assessed at 40%. The vehicle was owned by the defendant. The plaintiff sued for general and special damages for personal injuries and loss of pregnancy.

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.
  • Costs awarded to the defendant.

Rules and key headnotes

Civil Procedure — Documentary Evidence — Admissibility of Documents Not Annexed to Plaint — O.7 r.14 CPR
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 O.7 r.14 CPR, provided the document is relied upon as evidence in support of the claim rather than as the foundation of the claim itself.
Tort Law — Negligence — Duty of Care — Standard of Care Required of Motor Vehicle Drivers
A driver owes a duty of care to other road users and is expected to drive with due care and attention with sufficient regard for other road users. Where a motor vehicle knocks a pedestrian in circumstances requiring explanation (such as driving on a pavement), the driver must explain how his position is consistent with the exercise of reasonable care. In the absence of such explanation, the inference of negligence is warranted.
Tort Law — Vicarious Liability — Burden of Proof — Proof of Agency or Employment Relationship
A master is vicariously liable for torts committed by his servant or agent only when the tort is committed in the course of employment. The burden of proving that the driver was the servant or agent of the defendant and was acting in the course of his duty rests on the plaintiff. It is not sufficient merely to establish that the vehicle belongs to the defendant and then infer that the driver must at all times be a servant or agent of the defendant.
Evidence — Burden of Proof — Section 102 Evidence Act — Burden Lies on Party Alleging Fact
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 party cannot shift the burden of proving a fact it has alleged onto the opposing party by arguing that there is no evidence to disprove the allegation.

Legislation cited (3)

Cases cited (5)

  • MM Dattani v Ahmad (1959) EA 218
  • Lukyamuzi v House & Tenant Agencies Ltd (1983) HCB 74
  • Grant v Sun Shipping Co Ltd (1948) 2 All ER 238
  • Richley v Faul (1965) 1 WLR 1454
  • Muwonge v Attorney General (1967) EA 617

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 No. 19 of 1993) [1994] UGHC 30 (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.