Wakilii

Saulo Mawanda Sempa & 3 Ors v The Attorney General (Cv. Cs. Nos.1330,1332,1331 & 1294 Of 1998) (Cv. Cs. Nos. 1330,1332,1331 & 1294 of 1998)

High Court · [2009] UGHC 157 · 2009 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated civil suits claiming damages for wrongful death due to negligence under Law Reform (Miscellaneous Provisions) Act for loss of dependency
Decision
Judgment for the plaintiffs in all four consolidated suits; defendant held vicariously liable for negligence of police officers; general damages for loss of dependency awarded to each plaintiff and their beneficiaries with interest and costs

Observed later treatment

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Holding

The High Court held that police officers at Busunju Police Post negligently breached the absolute statutory duty under section 150(b) of the Traffic and Road Safety Act 1970 to close and divert the road when river Mayanja flooded and swept away the bridge. The police failed to warn road users or prevent access despite prior reports of the danger, directly causing the deaths of four doctors by drowning. The defendant was vicariously liable. The driver of the vehicle was not negligent. The court awarded damages for loss of dependency to the deceased doctors' dependants totalling UGX 485,434,796.

Outcome

Judgment for the plaintiffs in all four consolidated suits; defendant held vicariously liable for negligence of police officers; general damages for loss of dependency awarded to each plaintiff and their beneficiaries with interest and costs

Facts

On 29 March 1998, a minibus carrying four medical doctors plunged into the flooded river Mayanja near Busunju after the bridge had been swept away by floodwaters. The four doctors—Dr. Michael Kyakulumbye Ssempa, Dr. Catherine Othieno Ssempa, Dr. Francis Xavier Mubiru, and Dr. James Nalumenya—drowned. At approximately 4:00 p.m. that day, a resident informed police at Busunju Police Post that the river was swelling dangerously and requested that the road be closed or blocked. The police officers paid no attention and refused to act. The river continued to rise. The first bridge collapsed at around 7:30 p.m. No warning signs were erected and no road blocks were placed until after the accident occurred at about 8:00 p.m. Several vehicles approached the collapsed bridge in the hours before the accident. Ordinary citizens attempted to stop vehicles, but no police intervention occurred. The minibus proceeded along the road with no indication of danger and fell into the flooded river where the bridge had been. All four doctors died by drowning.

Issues

  1. Whether the defendant's servants were negligent.
  2. Whether the driver of Motor Vehicle 607 UBK was negligent.
  3. Whether the death of the deceased resulted from the negligence of either the defendant's servants or the driver.
  4. Whether the plaintiffs are entitled to the remedies which they seek through their plaints.

Orders

  • In HCCS No. 1332 of 1998, general damages of UGX 180,000,000 awarded to the plaintiff for loss of dependency on his father Dr. Michael Kyakulumbye Ssempa.
  • In HCCS No. 1294 of 1998, general damages of UGX 231,834,796 awarded to the plaintiff and beneficiaries for loss of dependency on Dr. Francis Xavier Mubiru.
  • In HCCS No. 1331 of 1998, general damages of UGX 54,000,000 awarded to the plaintiff and her four children for loss of dependency on Dr. James Nalumenya.
  • In HCCS No. 1330 of 1998, general damages of UGX 19,600,000 awarded to the plaintiff for loss of dependency on his mother Dr. Catherine Othieno Ssempa.
  • Interest at 8% per annum from the date of judgment till payment in full awarded on all general damages.
  • Costs of all suits awarded to the plaintiffs against the defendant.
  • Monies payable to infant beneficiaries Josephine Nabulya, Jonathan Ssekalagala, and Nakibuuka Lynet to be paid to the Public Trustee to hold in trust.
  • The Deputy Registrar directed to deliver judgment on 1st September 2009 at 10:00 a.m.

Rules and key headnotes

Police Statutory Duty — Duty to Close and Divert Road in Emergency
Section 150(b) of the Traffic and Road Safety Act 1970 (now section 142(b) Cap. 361) imposes an absolute statutory duty on the police to divert traffic temporarily, and to close and deny public access to any road where any emergency or anticipated event appears to render advisable such a course.
Breach of Absolute Statutory Duty — Civil Liability
Where a statute imposes an absolute duty but provides no remedy, a civil action for damages lies in favour of persons of the class intended to be benefited by the duty, provided the breach is proved and causation established. The police is not exempted from liability arising from negligent breach of statutory duty while carrying out official functions.
Negligence — Vicarious Liability of Government for Acts of Police Officers
Government is vicariously liable for the negligence of police officers acting in the course of their employment. Where police officers fail to discharge a statutory duty to protect road users and death results from that failure, the Attorney General is liable in damages under section 10 of the Government Proceedings Act Cap. 77.
Negligence — Foreseeability and Proximity
Where police officers are informed of a dangerous road condition and take no steps to close the road or warn users, harm to road users is foreseeable. Drowning caused by a vehicle plunging into a flooded river is a proximate consequence of the failure to act, being in the train of physical causation and within the range of expectation.
Res Judicata — Same Cause of Action and Parties Required
For the doctrine of res judicata to apply, the parties to the current suit must be the same parties in the decided suit or must be claiming from the parties in the previous suit. Where different dependants of different deceased persons bring independent claims, res judicata does not bar those claims even if a survivor of the same accident previously sued and lost on common law grounds where the current suits are founded on breach of statutory duty.
Assessment of Damages for Loss of Dependency — Principles
In assessing damages for loss of dependency under the Law Reform (Miscellaneous Provisions) Act, the court takes the last earnings of the deceased as the starting point, assesses the pecuniary benefit regularly accruing to the dependants, determines an appropriate multiplier based on the deceased's age and working life expectancy, calculates the total lost dependency, and apportions it among dependants. Younger children receive relatively larger portions in recognition of longer dependency. The widow receives a more substantial share where the deceased was the husband and breadwinner.
Assessment of Damages for Loss of Dependency — Reduction for Tax, Acceleration, and Uncertainties
In awarding damages for loss of dependency as a lump sum, the court must reduce the calculated lost dependency to account for income tax that would have been paid on the deceased's earnings, the benefit of accelerated receipt, and other uncertainties and imponderables of human life. The court applies its discretion to tax down the total calculated dependency to reflect these factors.

Legislation cited (8)

Cases cited (6)

  • Eron Namigadde v The Attorney General (Civil Suit No. 96 of 1999)
  • Management Training And Advisory Centre v Patrick Kakuku Ikaza (SCCA No. 6 of 1985)
  • Ministry of Housing And Local Government v Sharp [1970] 2 QB 223
  • Cutler v Wandsworth Stadium Ltd [1949] AC 398
  • Gulbanu Rajabali Kassam v Kampala Aerated Water Co Ltd [1965] EA 587
  • Jane Gaffa v Francis X.S Hatega (HC Civil Suit No. 1158 of 1975)

Full judgment

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Saulo Mawanda Sempa & 3 Ors v The Attorney General (Cv. Cs. Nos.1330,1332,1331 & 1294 Of 1998) (Cv. Cs. Nos. 1330,1332,1331 & 1294 of 1998) [2009] UGHC 157 (28 August 2009)
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