Anglina v. Nsubuga and Bukoba District Council Civ. Case 12-M-69; 29/5/71; Mnzavas Ag. J.

 Anglina v. Nsubuga and Bukoba District Council Civ. Case 12-M-69; 29/5/71; Mnzavas Ag. J.

            The plaintiff/widow sued the two defendants on behalf of herself, her four children and her deceased husband’s mother as dependants of the deceased husband under s. 4(1) of the Law Reform (Fatal accidents and Miscellaneous Provisions) Ordinance, Cap. 360. the plaintiff alleged that the first defendant being employed by the second defendant as driver was negligent in driving a vehicle on which the deceased’s was traveling and this cause the deceased to fall off and to e run over by the vehicle. The defence was a denial of negligence and a submission that the first defendant was on a frolic of his own hen he caused the accident because he was taking the deceased (who also worked for the Council as a turnboy) to his home when the accident occurred citing CROOK v. DERBYSHIRE LTD. [1956] All E. R. 447.

Held: (1) “It was the negligent driving of the first defendant that caused the death of the deceased.” (2) “There can be no doubt from the map (D. Exb 2) produced by the defence that the first defendant deviated fro the main road to Bukoba and drove to Maruku in order to send the deceased home. It was when he was sending the deceased home that the accident occurred. Before deciding this issue the court has to answer the question – What is the course of employment? According to Winfield on Tort – 7^th Edition page 741, “a wrong falls within the scope of employment if it is expressly or impliedly authorized by the master or is unauthorized manner of doing something which is authorized, or is necessarily incidental to something which the servant is employed to do”. In the case of MITCHELL vs. CRASS WELLER (138 E. R. 11890 at page 1193, Jarvis c. J. had this to say “No doubt a master may be liable for injury done by his servant’s negligence, where the servant, being about his master’s business, makes a small deviation, or even where he so exceeds his duty as to justify his master in at once discharging him”. I think at all events, if the master is liable where the servant has deviated, it must be where the deviation occurs in a journey on which the servant had originally started on his masters business; in other words he must be in the employ of his master at the time of

committing the grievance.” This exposition of the law was agreed by Maule, cress well and Williams JJ as the law to be applied when the question of vicarious liability is in issue. The next case I would like to refer to is that of RAYNER vs. MITCHELL (2 C P D. 357) at page 359 where Lord Coleridge C. J. states “It was laid down in Lord Holt’s time, and repeatedly since, that whenever the master instructs a horse of a carriage or anything which may readily be made an implement of mischief, to his servant to be used by him in furtherance of his master’s business, or for the execution of his orders, the master will be responsible for the negligent management of the thing entrusted tot eh servant, so long as the latter is using it or dealing with it in the ordinary course of his employment. That is undoubtedly a correct statement of the law.” In MOHAMED AKBAR vs. NOCHOLAS AND ANOTHER 12 E. A. C. A. 39 in which the question of vicarious liability was in issue it was held “That when a plaintiff in a suit for negligence proves that damage has been caused by the defendant’s motor-car, the fact of ownership of the lorry by the defendant and of the driver being in his employment at the time and actually driving the vehicle was prima facie evidence that the driver was acting within the range of employment and that the defendant was liable.” If the above decisions and the exposition of the law by Winfield tells us anything that thing is that it is not for every act of negligence by a servant that a master is liable; but that the master is liable if the act of negligence was done by the servant, either within the scope of his authority or as an incident to his employment. “Even if, for argument’s sake the court was to find that there were regulations prohibiting employees from using Council’s vehicles for their own ends, I would not be prepared to say that the sending of the deceased, who was the Council’s employee; and who was on duty at that time amounted to using the vehicle by the first defendant for his own private purposes as pleaded in the amended written statement of defence, paragraph three. The deviation b the first defendant had originally started on his master’s business. The sending of the deceased home in the council’s vehicle be first defendant may not have been expressly authorized by the second defendant but his sending the deceased home in the Council’s vehicle is clearly and necessarily incidental to what he is employed to do. The act certainly can not be treated in abstraction from the circumstances as a separate act.” On assessment of damages it was argued that he members of the family are assisting the widow and the children. This was not relevant so as to reduce damages because any help is gratuitous and must depend on the financial ability of the rest of the family. I now come to the amount of damages to be awarded to the defendants; there is nor is proper proof of deceased age at the time he died. Postmortem report (Exh A). Gives his age as “adult”. The plaint, under the heading particulars of negligence, says that the deceased was 27 years old when he died. This estimation of deceased’s age has not been challenged by the defence. I therefore, in the absence of better evidence hold that the deceased was 27 years old when he met the unfortunate accident. Taking the retirement age as 55 and

The fact that the deceased was in receipt of Shs. 245/- per month at the time he died – see letter of appointment Exh C – there would be a dependency of 55 – 27 which is 28 years. This brings a total of Shs. 245/- x 12 x 28 which is Shs. 82,320/-. There is no evidence as to how much of the deceased’s income from his salary went to the maintenance of the widow and the children. But in my view, all things being equal, he could not have spent more that half of his income for the maintenance and upkeep of the family. The defendants are therefore entitled a sum in the region of Shs. 40,670/- compensation. There is finally the question of apportionment. According to the decisions in KASSAM vs. KAMPALA WATER CO. LTD.(1965) E. A. 587 and HAYES vs. PATEL (19610 E. A. 129, the greatest part of the total sum must go to Angelina, the widow of the deceased on the ground that she has the responsibility of looking after the four children. I apportion Shs. 30,000/- to her. Each of the four children is to get Shs. 2,600/-