Wakilii

Tindimwebwa Narisi v Mutebi Salim (HCT-00-CV-CA-0057-2007) (HCT-00-CV-CA-0057-2007)

High Court · [2009] UGHC 117 · 2009 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment dismissing plaintiff's claim for damages arising from a road accident
Decision
Appellant awarded general damages of UGX 2,000,000 and special damages of UGX 725,000 with interest as specified; costs awarded to appellant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a plaintiff is at liberty to sue an employer without joining the employee as a co-defendant where vicarious liability is pleaded. Where a defendant fails to file a defence, there is a constructive admission of the claim made in the plaint. Special damages must be specifically pleaded and strictly proved; claims for loss of earnings and transport expenses failed for want of proof. General damages of UGX 2,000,000 awarded for closed head injury with soft tissue bruises and haematoma treated conservatively over four weeks.

Outcome

Appellant awarded general damages of UGX 2,000,000 and special damages of UGX 725,000 with interest as specified; costs awarded to appellant

Facts

On 21 July 2003 at 4:00 p.m. on Entebbe Road, Kampala, the plaintiff was walking when he was hit by the swinging rear door of an Isuzu lorry registration number UAD 967U driven by Adwan Rashid. The plaintiff sustained a closed head injury with soft tissue bruises and haematoma at the occipital area of the scalp. He was treated conservatively with antibiotics and analgesics for four weeks. The plaintiff sued the defendant as the owner of the vehicle, alleging that Adwan Rashid was the defendant's servant or agent acting within the scope of his employment. Summons were served on the defendant on 26 November 2004 but he failed to file a defence. Interlocutory judgment was entered against him on 1 February 2005. The matter proceeded ex parte but the Chief Magistrate dismissed the suit on the grounds that the plaintiff failed to prove vicarious liability, failed to join the driver as a co-defendant, and failed to prove special damages. The plaintiff appealed to the High Court.

Issues

  1. Whether the trial Chief Magistrate subjected the evidence before her to adequate scrutiny.
  2. Whether the trial Chief Magistrate erred in law when she awarded no damages to the plaintiff.
  3. Whether the plaintiff proved that the defendant was vicariously liable for the actions of his driver.
  4. Whether it was necessary to join the driver as a co-defendant in order to establish vicarious liability.
  5. Whether the plaintiff proved special damages (medical expenses, loss of earnings, transport expenses, and police report costs).
  6. Whether the plaintiff was entitled to general damages for injuries sustained in the accident.

Orders

  • Appeal allowed.
  • Judgment of the Chief Magistrate set aside.
  • Judgment entered for the appellant.
  • Appellant awarded UGX 2,000,000 as general damages.
  • Appellant awarded UGX 675,000 for medical expenses as special damages.
  • Appellant awarded UGX 50,000 for police accident report as special damages.
  • Claims for loss of earnings (UGX 1,240,000) and transport expenses (UGX 1,200,000) disallowed.
  • Special damages to attract interest at court rate of 8% per annum from date of filing suit until payment in full.
  • General damages to attract interest at 23% per annum from date of judgment until payment in full.
  • Appellant awarded costs of the appeal and costs in the court below.

Rules and key headnotes

Vicarious Liability — Pleading and Proof — Necessity of Joining Employee as Co-Defendant
A plaintiff suing an employer for vicarious liability is at liberty to sue the employer alone without joining the employee as a co-defendant. There is no legal requirement to join the employee as a party to establish vicarious liability.
Default Judgment — Effect of Failure to File Defence — Constructive Admission
Where a defendant fails to file a defence after being served with summons, there is a constructive admission of the claim made in the plaint. The plaintiff's story, in the absence of a defence to contradict it, must be accepted as the truth.
Pleadings — Amendment — Proof of Case as Alleged
A party is expected and bound to prove the case as alleged in the pleadings. A party cannot at trial change his case or set up a case inconsistent with what was alleged in the pleadings except by way of amendment of the pleadings.
Special Damages — Pleading and Proof — Degree of Certainty Required
Special damages must be specifically pleaded and strictly proved. The degree of certainty and particularity with which damage must be proved depends on the character of the acts which produce the damage and the circumstances under which those acts are done. Such certainty must be insisted on as is reasonable having regard to the circumstances and the nature of the acts by which the damage is done.
General Damages — Assessment — Closed Head Injury with Soft Tissue Bruises
Assessment of general damages depends mainly on the status of the plaintiff and the degree of pain and suffering occasioned. For a closed head injury with soft tissue bruises and haematoma at the occipital area of the scalp, treated conservatively with antibiotics and analgesics for four weeks with complete healing but occasional headaches remaining, an award of UGX 2,000,000 is adequate compensation.
Interest on Damages — Court Rates
Special damages attract interest at court rate of 8% per annum from the date of filing the suit until payment in full. General damages attract interest at 23% per annum from the date of judgment until payment in full.
Assessment of Damages — Duty of Trial Court Where Suit Dismissed
Where the plaintiff claims damages and the suit is dismissed, the trial court should assess damages that would have been awarded if the suit had succeeded. On appeal, if the case has been delayed and the trial magistrate may have changed stations, the appellate court may assess damages itself where there is ample evidence on record to do so.

Legislation cited (2)

Cases cited (9)

  • Peters v Sunday Post [1958] EA 424
  • Agadi Didi v James Namakajjo (HCCS No. 1230 of 1988)
  • Bahemuka v Anywar [1987] HCB 71
  • Ratcliffe v Evans [1892] 2 QB 524
  • Interfreight Forwarders (U) Ltd v EADB [1994-95] HCB 54
  • Fredrick Zaabwe v Orient Bank & Others (SCCA No. 4 of 2006)
  • Matiya Byabalema & Others v UTC [1994-95] HCB 64
  • Moses Kimeze v Afri Plast Industries Ltd (HCCS No. 490 of 1997)
  • Donald Egeju v Attorney General (HCCS No. 585 of 1990)

Full judgment

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

Tindimwebwa Narisi v Mutebi Salim (HCT-00-CV-CA-0057-2007) (HCT-00-CV-CA-0057-2007) [2009] UGHC 117 (18 September 2009)
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.