PRINCIPLES GOVERNING THE AWARD OF

DAMAGES IN CIVIL CASES

A PAPER PRESENTED BY

HON. MR. JUSTICE BART M. KATUREEBE, JSC

AT

THE INDUCTION COURSE OF NEWLY APPOINTED

JUDGES OF HIGH COURT OF UGANDAENTEBBE RESORT BEACH HOTEL

WEDNESDAY, 18TH JUNE 2008

PRINCIPLES GOVERNING THE AWARD OF DAMAGES IN CIVIL CASES

Hon. Justice Bart M. Katureebe, JSC*

A. INTRODUCTION

1. My chief task at this function is to address your

Lordships on the rules and principles in awarding damages

generally. This is by no means a simple task and in my

brief introduction, I shall tell you why.

2. Many of your Lordships will agree with me that the whole

region of inquiry into damages is one of extreme

difficulty. It is impossible to lay down a single

principle upon which you can give damages. It is often

said that lawyers, and perhaps judges as well, are not

very fond of figures. However, in all civil cases, your

Lordships shall be called upon to approximate a sum of

money for the plaintiff’s loss or inconvenience arising

out of a violation of a legally enforceable right or

interest. This sum of money is in law called “damages”

and the plaintiff’s loss or inconvenience, a “damage”.

The law recognizes various kinds of damages, but I shall

return to the classification of damages later.

* I would like to thank Isaac K. Ssemakadde, Esq. and Bryant Kairugavu, Esq., my law clerks at the Supreme Court of Uganda, who have helped in the preparation of this paper.

3. My experience has taught me that damages are usually

incapable of precise assessment. You cannot by any

arithmetical calculation establish what is the exact

amount of money which would represent such a thing as the

pain and suffering which a person has undergone by reason

of an accident. However, the law recognises that as a

topic upon which damages may be given. It is trite law

that the difficulty of assessing damages is no reason for

the court not granting them.

4. As long as the plaintiff has proved facts on which an

approximation can be based, the courts must award a

reasonable sum as damages unless, of course, there is a

public policy consideration which prevents such a

plaintiff from claiming damages on the facts of that

particular case. Damages must not be too high or too low

with regard to the circumstances of a particular case.

Damages should not be awarded from sentimental

considerations.

5. To achieve the ends of justice, there are well

established rules and principles that govern the award of

damages in civil cases. These rules and principles are

firmly rooted in the common law. As you already aware,

the common law and doctrines of equity are part of the

law applicable in Uganda, thanks to the provisions of S.

14(2) of the Judicature Act, Cap 13.

6. Since its independence in 1962, Uganda has developed its

own common law although it has also borrowed heavily and

continues to borrow from the common law tradition of the

British and Commonwealth courts. I have endeavoured to

refer to some of the leading authorities on damages not

only from Uganda, but also East Africa and the

Commonwealth.

7. This paper does not pretend to encompass the full range

of rules and principles which govern the award of damages

but it does, however, seek to achieve a less lofty aim,

that of making the subject sufficiently interesting for

your Lordships to refresh your memory on the matter of

damages. If I achieve this aim, I shall be satisfied.

B. DEFINITION AND CLASSIFICATION OF DAMAGES

I. DEFINITION OF DAMAGES

1. Damages are the pecuniary recompense given by process of

law to a person for the actionable wrong that another has

done him.1 Lord Greene MR, in Hall Brothers SS Co. Ltd V.

Young2 defined the term damages thus:

“‘Damages’ to an English lawyer imports this idea,

that the sums payable by way of damages are sums

which fall to be paid by reason of some breach of

duty or obligation, whether that duty or

obligation is imposed by contract, by the general

law, or legislation.”

In deed, this is the way damages are broadly appreciated

in most jurisdictions in the Commonwealth, including

Uganda.

2. Damages are, in their fundamental character,

compensatory, not punishment. Whether the matter

complained of is a breach of contract or tort, the

primary function of damages is to place the plaintiff in

as good a position, so far as money can do it, as if the

matter complained of had not occurred. As we shall see

later, this primary notion is controlled and limited by

112 Halsbury’s Laws (4th edn) para 12022 [1939] 1 KB748, at 756 (CA).

various considerations, but the central idea remains

compensation. Accordingly, damages are usually measured

by the material loss suffered by the plaintiffs. As a

general rule, the plaintiff must not receive more, nor

should he receive less than the appropriate measure of

damages commensurate with his or her ‘material loss’.

3. However, in certain circumstances, the court may award

more than the normal measure of damages, by taking into

account the defendant’s motives or conduct, and in this

case the damages may be ‘aggravated damages’ which are

compensatory or ‘exemplary damages’ which are punitive.3

I shall return to this distinction later.

4. A statute may create a civil action for damages directly,

and may also define the criteria for the assessment of

damages. By statute, common law remedies may be excluded

or limited, or a limit may be put on the damages

recoverable.4 Examples of such statutes in Uganda include

the Law Reform (Miscellaneous Provisions) Act, Cap 79;

the Employment Act5 2006, National Environment Act6, Cap

153; Occupation Safety and Health Act7 2006; and Workers

Compensation Act, Cap 225. In this context, damages may

be referred to as ‘statutory damages’.

II. CLASSIFICATION OF DAMAGES

1. Generally speaking, there are three kinds of damages:

general damages, special damages and nominal damages.

General and special damages

2. General damages, according to Lord Macnaghten in the oft-

cited case of Stroms V. Hutchinson8, are such as the law

will presume to be the direct natural or probable

consequence of the act complained of. Special damages, on

the other hand, are such as the law will not infer from

the nature of the act. They do not follow in the ordinary

course. They are exceptional in their character, and,

therefore, they must be claimed specially and proved

strictly.

3. In deed, because of their peculiar nature, the law

requires a plaintiff to give warning in his pleadings of

the items constituting his claim for special damages with

sufficient specificity in order that there may be no

surprise at the trial. See Musoke v. Departed Asians

Custodian Board [1990-1994] EA 219; Uganda Telecom v.

Tanzanite Corporation [2005] EA 351; Mutekanga v. Equator

Growers (U) Ltd [1995-1998] 2 EA 219; Uganda Breweries

Ltd. v. Uganda Railways Corporation Supreme Court Civil

Appeal No. 6 of 2001 (unreported)

4. In current usage, ‘special damages’ relate to past

pecuniary loss calculable at the date of trial, whilst

‘general damages’ relate to all other items of damage

whether pecuniary or non-pecuniary. Thus in a personal

injuries claim, special damages encompass past expenses

and loss of earnings, whilst ‘general damages’ will

include anticipated future loss as well as damages for

pain and suffering and loss of amenity.9 See Uganda

Commercial Bank v. Deo Kigozi [2002] 1 EA 293

5. In other words, special damages, both in the law of

contract and tort, denote the damages arising out of the

special circumstances of the case which, if properly

pleaded, may be superadded to the general damages which

the law implies in every breach of contract and every

infringement of an absolute right.10

6. It is important to note that the term ‘special damage’ is

sometimes used in actions on the case brought for a

public nuisance, such as an obstruction of a river or

highway, to denote the actual and particular loss which

the plaintiff must allege and prove beyond what is

sustained by the general public.11

9 12 Halsbury’s Laws (4th edn) para 111310 Ashby V. White [1703] 2 Ld Raym 93611 Ratcliffe V. Evans [1892] 2 Q B 524 at 528, 529, (CA). See alsoByabazaire V. Mukwano Industries (unreported)

Nominal Damages

7. Nominal damages have been famously referred to as a mere

peg on which to hang costs. According to Maule J. in

Beaumont V. Greathead12, nominal damages, in fact, mean a

sum of money that may be spoken of, but that has no

existence in point of quantity. For instance, where the

seller brings an action for the non-acceptance of goods,

the price of which has risen since the contract was made.

In practice, a small sum of money is awarded; say, one

dollar or its equivalent.

8. However, nominal damages must be distinguished from,

small or contemptuous damages, which indicate the court’s

opinion that the action ought not to have been brought.13

This distinction is borne out by Njareketa v. Director of

Medical Services Mulago14 where Sir Barclay Nihill C.J.

reduced a substantial award that the trial judge had made

in favour of the appellant and termed as “merely nominal

damages” to one cent and set aside the learned trial

judge’s order as to costs. The facts of that case make

for interesting reading.

9. There is a great deal of confusion on this point, and for

clarification, allow me to quote from the famous passage

of Lord Halsbury C in The Medina15:

“‘Nominal damages’ is a technical phrase, which

means that you have negatived anything like real

damage, but that you are affirming by your real

damage that there is an infraction of a legal

right, which, though it gives you no right to any

real damages at all, yet gives you a right to the

verdict or judgment because your legal right has

been infringed. But the term ‘nominal damages’

does not mean small damages.” (emphasis mine)

10. Thus, a plaintiff in an action for wrongful deprivation

may recover substantial damages for the deprivation,

though he may have incurred no out-of pocket expenses

consequent thereon. By way of conclusion on this point,

it may be appropriate to quote again from Lord Halsbury:

“A plaintiff is entitled to ‘nominal damages’

where

a) his rights have been infringed, but has not

in fact sustained any actual damage from the

infringement, or he fails to prove that he

has; or

b) although he has sustained actual damage, the

damage arises not from the defendant’s

wrongful act but from the conduct of the

plaintiff himself; or

c) the plaintiff is not concerned to raise the

question of actual loss, but brings his

action simply with the view of establishing

his right.” 16

Exemplary damages

11. A keen reader of our law reports will soon observe

that litigation lawyers in Uganda have a strange

obsession for exemplary damages yet very few actually

understand the nature and essence of this kind of

damages. They will jump at every opportunity to declare

in their plaints, “We want exemplary damages, My Lord.”

Mercifully for their adversaries, the courts of

judicature do not at all share the lawyers’ enthusiasm

and have, in fact, safely avoided setting a dangerous

precedent.17

12. But what exactly are exemplary damages? The dictum of

McCardie J. Butterworth V. Butterworth18 is as helpful

today as it was the past century:

“Simply put, the expression exemplary damages

means damages for ‘example’s sake’. These kinds of

damages are clearly punitive or exemplary in

nature. They represent a sum of money of a penal

nature in addition to the compensatory damages

given for the pecuniary or physical and mental

suffering.”

13. The award of exemplary damages was considered by the

House of Lords in the landmark case of Rookes V.

Barnard.19 Lord Devlin stated that in his view there are

only three categories of cases in which exemplary damages

are awarded, namely:

a) where there has been oppressive, arbitrary, or

unconstitutional action by the servants of the

government;

b) where the defendant’s conduct has been calculated

by him to make a profit which may well exceed the

compensation payable to the plaintiff; or

c) where some law for the time being in force

authorises the award of exemplary damages.

Furthermore, according to Lord Devlin in Rookes V. Barnard,

above, when considering the making of an award of exemplary

damages, three matters should be borne in mind:

(a) the plaintiff cannot recover exemplary

damages unless he or she is the victim of

punishable behaviour,

(b) the power to award exemplary damages should

be used with restraint, and

(c) the means of the parties are material in the

assessment of exemplary damages.

14. It has been held in two cases, Kiwanuka v. Attorney

General (Uganda)20, and Visram & Karsan v. Bhatt21, by the

Court of Appeal for Eastern Africa that the dicta of the

House of Lords in Rookes V. Barnard, above, accurately

stated the law of East Africa with respect to exemplary

damages. The principles formulated in Rookes V. Barnard,

above, were also endorsed by Spry VP of the East Africa

Court of Appeal in the oft-cited case of Obongo & Another

v. Municipal Council of Kisumu [1971] EA 91; by the High

Court of Uganda in following cases: Ongom & Another v.

Attorney-General [1979] HCB 267; Kyambadde v. Mpigi

District Administration [1983] HCB 44; Nsaba Buturo v.

Munansi Newspaper [1982] HCB 134; Ntabgoba v. Editor-in-

chief of the New Vision & Another [2004] 2 EA 234;

Bhadelia Habib Ltd. v. Commissioner General, URA [1997-

2001] UCL 202; and most recently by the Supreme Court of

Uganda in the landmark case of Fredrick J. K. Zaabwe v.

Orient Bank & Others Supreme Court Civil Appeal No. 4 of

2006 (unreported).

15. In all the cases I have just referred to, the court

was firmly aware of the nature of exemplary damages and

when they should be awarded. By way of emphasis, however,

I shall restate here the rationale behind the award of

exemplary damages: exemplary damages should not be used

to enrich the plaintiff, but to punish the defendant and

deter him from repeating his conduct.

16. It is my considered view that in an action where an

outrage has been committed against the plaintiff by the

defendant and the court forms the opinion that it should

give punitive damages to register its disapproval of the

wanton and willful disregard of the law, it is entirely

proper to award exemplary damages in addition to general

damages and special damages, if any.22 However, an award

of exemplary damages should not be excessive. The

punishment imposed must not exceed what would be likely

to have been imposed in criminal proceedings, if the

conduct were criminal.23 All circumstances of the case

must be taken into account, including the behaviour of

the plaintiff and whether the defendant had been

provoked.24 For instance, although abuse of police powers

should almost always attract exemplary damages, this is

by no means a statement of an independent principle.

Litigation lawyers would, of course, disagree.

AGGRAVATED DAMAGES

17. There is a thin line between exemplary damages and

aggravated damages, and as a result, there has arisen a

lot of confusion of thought in this area. But actually

the two concepts are different, as the Supreme Court of

Uganda recently explained in the landmark case of

Fredrick J. K. Zaabwe v. Orient Bank & Others Supreme

Court Civil Appeal No. 4 of 2006 (unreported). 25

18. Aggravated damages are “extra compensation to a

plaintiff for injury to his feelings and dignity caused

by the manner in which the defendant acted. Exemplary

damages, on the other hand, are damages, which in certain

circumstances only, are allowed to punish a defendant for

his conduct in inflicting the harm complained of.”26 For

the distinction between these two species of damages, see

also the following cases: Obongo & Another v. Municipal

Council of Kisumu [1971] EA 91; Ongom & Another v.

Attorney-General [1979] HCB 267; Kyambadde v. Mpigi

District Administration [1983] HCB 44; Nsaba Buturo v.

Munansi Newspaper [1982] HCB 134; Ntabgoba v. Editor-in-

chief of the New Vision & Another [2004] 2 EA 234;

Bhadelia Habib Ltd. v. Commissioner General, URA [1997-

2001] UCL 202; Ahmed Ibrahim Bholm v. Car & General Ltd.

Supreme Court Civil Appeal No. 12 of 2002.

19. For a finer distinction between exemplary damages and

aggravated damages, it is appropriate again to refer the

famous passage of Lord Devlin in the landmark case of

Rookes v. Barnard, above:

“English law recognized the awarding of exemplary

damages, that is, damages whose object was to

punish or deter and which were distinct from

aggravating damages (whereby the motives and

conduct of the defendant aggravating the injury to

plaintiff would be taken into account in assessing

compensatory damages)…The fact that the injury to

the plaintiff has been aggravated by the malice or

by the manner of doing the injury, that is, the

insolence or arrogance by which it is accompanied,

is not justification for an award of exemplary

damages; aggravated damages can do in this type of

case what otherwise could be done by exemplary

damages.”

20. From the foregoing, it is imperative that your

Lordships comprehend the distinction between aggravated

damages and exemplary damages. Aggravated damages are, by

their nature, intended to compensate the plaintiff

whereas exemplary damages are, by their nature, intended

to punish the defendant.27

21. When is it proper to award aggravated damages? The

short answer is when aggravating circumstances exist in

the act or intention of the wrongdoer. Such damages,

although compensatory, may be given under a different

head to represent a solatium to the plaintiff for the

distress, anxiety and further injury to feelings,

reputation, dignity etc caused by the manner in which the

defendant acted. In every case considered appropriate for

the award of aggravated damages, the court should always

point out what it considers to be ‘aggravating

circumstances’ in order to justify the basis of its

award. Common examples of ‘aggravating circumstances’ or

‘aggravating factors’ from the reported cases include,

but are not necessarily limited to, malice, ill-will, or

persistence in a falsehood exhibited by a defendant to

the detriment of the plaintiff. Consider the case of a

publisher who unsuccessfully attempts to plead and prove

justification in answer to a defamation claim arising out

of a libelous article.28 The courts frown upon such an

attitude on the part of the defendant and view it as an

aggravating factor.

Liquidated damages

22. Liquidated damages are unique to claims for breach of

contract. The parties may agree by contract that a

particular sum is payable on the default of one of them,

and if the agreement is not obnoxious as a ‘penalty’ such

a sum constitutes ‘liquidated damages’ and is payable by

the party in default. The term is also applied to sums

expressly made payable as liquidated damages under a

statute. In every other case, where the court has to

quantify or assess the damages or loss, whether pecuniary

or non-pecuniary, the damages are said to be

‘unliquidated’.29

23. In all cases where the parties by their contract agreed

a sum payable on the default of one of them, it is always

a question of law for the court to determine whether or

not such a sum should be paid by the party in default.

24. If this sum is a genuine pre-estimate of the loss which

is likely to flow from the breach, then it represents

damages, called ‘liquidated damages’ and it is

recoverable without the necessity of proving the actual

loss suffered. If, however, the stipulated sum is not a

genuine pre-estimate of the loss but it is in the nature

of a ‘penalty’ intended to secure performance of the

contract then, it is not recoverable, and the plaintiff

must prove what damages he can.30

C. RULES AND PRINCIPLES IN AWARDING DAMAGES

I. Some general rules and principles

1. No damages can be given on an indictment.31

2. In all civil actions, the law does not so much regard

the intent of the actor as the loss and damage to the

party suffering.32 This rule is recognised more in

breach than observance. This does not always means that

a court proceeded on wrong principle. I shall explain

this later. But for illustration, Your Lordships would

do well remember here the dicta of Sir Barclay Nihill

CJ in Njareketa, above:

“The appellant does not seem to comprehend that

but for the action of the second defendant, the

appellant’s children would now be fatherless and

his wife a widow. Instead of expressing gratitude

to the second defendant he is now pressing for

payment by the second defendant for injury done to

him…what timority!”33

3. The law presumes damage in respect of any unlawful

act.34 The essence of this rule is that wherever there

is a breach of a contract or any injury to a legally

enforceable right or interest, nominal damages are

recoverable even though the plaintiff may not be able

to prove actual damage. See Ongom & Another v.

Attorney-General [1979] HCB 267; Bhadelia Habib Ltd. v.

Commissioner General, URA [1997-2001] UCL 202; Ssendi

Edward v. Crown Beverages Ltd [2005] 2 ULSR 7; Karim

Hirji v. Kakira Sugar Works Ltd. [2005] 2 ULSR 60

4. Public policy considerations may operate to prevent a

plaintiff from claiming damages in an unworthy cause.

Courts are the custodians of public morals and they may

justifiably preclude a plaintiff from an award of

damages in order to register their disapproval with the

plaintiff’s case if it offends public policy or1612 Halsbury’s Laws (4th edn) para 1114 17 Except for the dicta in Sindano V. Ankole District Administration Civil Suit No.463 of 1969 which were based on the dissent of other Commonwealth courtswith respect to the principles formulated in Rookes v. Barnard [1964] AllER 367. See E. Vietch, The Law of Tort in East Africa, pp. 252-253 forthe commentary on this odd case.18 Butterworth V. Butterworth & Englefield [1920] P 12619 [1964] ALLER 367 at 410, 411. In some courts within the Commonwealth,there have been some criticisms of the principles formulated by theHouse of Lords in Rookes V. Barnard. See for example AustralianConsolidated Press Ltd. V. Uren [1967] 3 All ER 523, PC20 EACA No. 19 of 1965 (C.A.)21 [1965] EA 78922 See for instance London v. Ryder [1953] I All ER 741, where the courtutilized the award of exemplary damages to teach a defendant who hadacted with a cynical disregard of the plaintiff’s rights a lesson that“a tort does not pay.”23 Per Spry V.P. in Obongo & Another v. Municipal Council of Kisumu[1971] EA 91 24 See O’Connor v. Hewiston [1979] Crim LR 46,CA; Archer v. Brown [1985]QB 401 25 “With regard to exemplary damages, the appellant seems to equate themwith aggravated damages. SPRY, V.P. explained the difference succinctlyin OBONGO -Vs- KISUMU COUNCIL [1971] EA 91, at page 96; “The distinction is notalways easy to see and is to some extent an unreal one. It is well established that when damagesare at large and a court is making a general award, it may take into account factors such asmalice or arrogance on the part of the defendant and this injury suffered by the plaintiff, as, forexample, by causing him humiliation or distress. Damages enhanced on account of suchaggravation are regarded as still being essentially compensatory in nature. On the other hand,exemplary damages are completely outside the field of compensation and, although the benefitgoes to the person who was wronged, their object is entirely punitive.”

outrages morality. In my view this power is implicit in

the provisions of s. 14(2) (c) and s. 14(3) of the

Judicature Act, Cap 13, which read in relevant, and I

quote:

“14. Jurisdiction of the High Court.

In the circumstances of this case, as discussed in this judgment, I donot think this is a case that qualifies for an award of exemplarydamages as envisaged in ROOKES -Vs- BARNARD AND OTHERS [1964] A.C. 1129,which is very well considered by SPRY – VP in his judgment in the ObongoCase (supra) at page 94. The gist of that decision is that exemplarydamages may be awarded in this class of case. In the words of SPRY,V.P. at P. 94 these are: “first, where there is oppressive, arbitrary or unconstitutionalaction by the servants of the government and, secondly, where the defendant’s conduct wascalculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff.As regards the actual award, the plaintiff must have suffered as a result of the punishablebehaviour; the punishment imposed must not exceed what would be likely to have been imposedin criminal proceedings if the conduct were criminal; and the means of the parties and everythingwhich aggravates or mitigates the defendant’s conduct is to be taken into account. It will be seenthat the House took the firm view that exemplary damages are penal, not consolatory as hadsometimes been suggested.”

It has to be borne in mind that the respondent were private persons andnot acting on behalf of any government or authority.

I think this is a case where the appellant should receive enhancedcompensatory damages not only for the unwarranted and wrongfuldeprivation of his property, but also because of the conduct andapparent arrogance of the respondents. In my view, this is not the typeof case where the respondents are likely to repeat their wrongs on theappellant.

In considering an award of enhanced or substantial general damages, Imust take into account the station in life of the appellant. He is asenior lawyer and a respected member of society. He has a family who alllived on the property from which they were wrongfully evicted. Part ofthe property was used as offices for his law chambers. The appellanttestified that as a result of this eviction, he had to find alternativeaccommodation for his family. He lost not only some of his books andfiles but also his clients. His livelihood as a lawyer was compromised.He suffered much humiliation and distress.

(2) Subject to the Constitution and this Act, the

jurisdiction of the High Court shall be exercised—

(a)………………………………………………………………………

(b)………………………………………………………………………

He has since been denied use of his property for the period of about 10years. The appellant had made a total claim for shs.307,000,000=. Iam of the view that this is a case where substantial damages should beawarded. Given the circumstances of this case, I would award to theappellant Shs.200,000,000/= (two hundred million) as aggravated damages.Per Katureebe JSC, who delivered the opinion of the Court.26Per McCarth J. in Huljich V. Hall [1973] 2 NZLR 279 at 287; a casefrom New Zealand. 27For the essential distinction between aggravated and exemplarydamages, it is often said that the former represents a solatium to theplaintiff, and the latter a punishment of the defendant. Per Mahon J.in A v. B [1974] 1 NZLR 673 at 677. See also Loomis V. Rohan (1974) 46DLR (3d) 423. 28See for instance Ntabgoba v. Editor-in-chief of the New Vision &Another [2004] 2 EA 234 29 12 Halsbury’s Laws (4th edn) para 110930 12 Halsbury’s Laws (4th edn) para 1116. See also Dunlop Pneumatic TyreCo. Ltd. V. New Garage & Motor Co. Ltd. [1915] AC 79 at 86, 87 per LordDunedin: “The question whether a sum stipulated is a penalty orliquidated damages is a question of construction to be decided upon theterms of each particular contract, judged of as at the time of themaking of the contract, not at the time of the breach.” 31 Seeles’ case (1639) Cro Ear 557; 79 ER 108032 Bessey V. Olliot and Lambert (1682) T Raym 467; 83 ER 244.33 See endnote 14.34 In the oft-cited case of Ashby v. White 92 ER 126, Holt CJ stated theprinciple thus: “Every injury imports a damage, though it does not costthe party a shilling and it is impossible to prove the contrary. Anyinjury imports a damage when a man is hindered of his rights.” 3 12 Halsbury’s Laws (4th edn) para 11124 12 Halsbury’s Laws (4th edn) para 11155 See for instance sections 66(4), 67(4), 70(3), 78, 79, 87, 88, 89, 90,92, and 96(4) of the Employment Act, 2006. 6 See for instance, s. 67 of the National Environment Act which enablesthe award of compensation on an environmental restoration order.

(c) Where no express law or rule is applicable to

any matter in issue before the High Court, in

conformity with the principles of justice, equity

and good conscience.

(3)The applied law, the common law and the

doctrines of equity shall be in force only insofar

as the circumstances of Uganda and of its peoples7 See for instance s. 102 of the Occupational Safety and Health Actwhich enables the application of a statutory penalty to the compensationof the victim of a statutory offence.8 [1905] AC 51512 (1846) 2 CB 494; 135 ER 103913 12 Halsbury’s Laws (4th edn) para 111214 [1950] 17 EACA 60. The appellant, a patient of 24, had a malignantgrowth on his leg: it was found necessary to amputate his leg to savehis life; the patient at first consented but afterwards withdrew hisconsent. The second defendant, a government surgeon, went on to performthe life-saving medical operation and the plaintiff successfully broughtan action in the High Court of Uganda against the defendants for damagesarising out of the trespass committed to his person calculated at30,000/=. The trial judge awarded the plaintiff what he termed as‘nominal damages’ in addition to costs against the defendants. Theappellant appealed for a larger quantum of damages and the defendantscross appealed on the issue of damages. Held, But for the action of thesecond defendant, the appellant’s children would now be fatherless andhis wife a widow. Instead of expressing gratitude to the seconddefendant he is now pressing for payment by the second defendant forinjury done to him…what timority! He has in fact suffered no damage byreason of the trespass. This being the case we think the damages fixedby the learned trial judge, although he regarded them as merely nominal,are in fact high taking into regard the class and community from whichthe appellant comes… It is not due to our lack of compassion for theappellant to the realization that it is necessary to protect thegovernment medical department and all surgeons from unscrupulous claimsof this nature that we reduce the nominal damages awarded to theappellant to one cent and set aside the learned judge’s order as tocosts. The appellant may certainly be a fit subject for charitableassistance, but he is entitled to nothing in law, and he should neverhave brought this action. 15The Medina [1900] AC 113; [1900 – 3] ALLER Rep 126.

permit, and subject to such qualifications as

circumstances may render necessary.”

For instance, in Njareketa v. Director of Medical

Services Mulago, above, the Court of Appeal for Eastern

Africa held that a twenty four year old appellant, with

a wife and children depending on him, who withdrew his

consent to a life-saving medical operation, was not

entitled to nominal damages but rather contemptuous

damages only for the trespass committed against him by

a skilled doctor. Delivering the opinion of the Court,

Sir Barclay Nihill CJ said:

“It is not due to our lack of compassion for the

appellant but to the realization that it is

necessary to protect the government medical

department and all surgeons from unscrupulous

claims of this nature that we reduce the nominal

damages awarded to the appellant to one cent and

set aside the learned judge’s order as to costs.

The appellant may certainly be a fit subject for

charitable assistance, but he is entitled to

nothing in law, and he should never have brought

this action.”35

35 For a similar approach, see also Udale V. Bloomsbury Area HealthAuthority [1983] 2 ALLER 522, which held that it was contrary to publicpolicy to award damages to a mother whose child had been conceived afterthe mother had undergone a negligently performed sterilization operationto cover the cost of carrying out necessary extensions to the home andof bringing up the child because:

5. It is my hope that this case can remind your Lordships

of your public duty to keep mere busy bodies out of the

court room.

6. In sum, the rules and principles I have briefly

highlighted in this part may appear to contradict

themselves or other rules of the common law and equity.

That may be so but it should not be strange for a

judicial mind in the Commonwealth. The rules of the

common law and equity must be given a harmonious

interpretation taking into regard the circumstances of

the case at bar. I find it important to clarify this

matter because in future, some lawyers appearing before

your Lordships may implore you to hold that one rule of

the common law excludes another. Such an approach to

the rules and principles governing damages can only

a) It was highly undesirable that the child should learn that acourt had declared that his life or birth was a mistake andthat he was unwanted or rejected.

b) The appropriate measure of damages in such a case woulddenigrate virtue.

c) Medical practitioners who would incur liability would beplaced under pressure to authorize or carry out abortions,and

d) The birth of healthy, a normal baby was a beneficial, not adetrimental, event.

However, those public policy considerations did not preclude an award ofdamages for lost income and also of pain, suffering, inconvenience,anxiety and the disruption to the family’s finances caused by theunexpected pregnancy.

have the effect of creating absurdity and exacerbating

the confusion that underlies this area of the law.

II. Whether proof of actual damage is essential

1. We have already observed above that whenever an injury is

done to a right, the law will presume damage. Thus, as a

general rule, proof of actual damage is not essential to

entitle a plaintiff to an award of damages of breach of

contract or injury to a right. Nominal damages will be

enough in such a case. Nominal damages here mean a

reasonable or moderate sum.

2. However, in certain circumstances, actual damage must be

proved if a plaintiff is to be awarded any damages at

all. These cases include incidences where a corporate

entity alleges that it has been defamed36; or actions

alleging an interference by a third party with a

contractual relationship between A and B; so, if C

procures B to breach B’s agreement with A, A must prove

actual damage to maintain a claim for damages against C.37

Another common example is that of product liability

claims. A plaintiff customer must prove actual damage in

order to sustain a civil claim for damages against the

manufacturer: See Ssendi Edward v. Crown Beverages Ltd.

[2005] 2 ULSR 7.

3. It is trite law that in all cases where special damages

are claimed, they must be pleaded with sufficient

specificity and strictly proved: See Musoke v. Departed

Asians Custodian Board [1990-1994] EA 219; Uganda Telecom v.

Tanzanite Corporation [2005] EA 351; Mutekanga v. Equator

Growers (U) Ltd [1995-1998] 2 EA 219; Uganda Breweries Ltd.

v. Uganda Railways Corporation Supreme Court Civil Appeal

No. 6 of 2001 (unreported)

III. WHERE ASCERTAINMENT IS DIFFICULT OR IMPOSSIBLE

1. It is an ancient rule of the common law that the

difficulty of assessing damages is no reason for the

court not granting them.38 Indeed, the difficulty of

assessing damages is not a ground for giving only a

nominal sum.39 Thus, even where it is impossible to

assess the appropriate measure of damages with

certainty and precision, the defendant must not be

relieved of his liability to pay the plaintiff any

damages at all in respect of a breach of contract or

any other actionable wrong.40 In all such cases where

ascertainment of damages is difficult, the court must

attempt to ascertain damage in some way or other.41

38 Bovet V Waletr (1917) 62 Sol Jo 104.39 Ungar V. Sugg (1892) 9 RPC 114, CA.40 : Chaplin V. Hicks [1911] 2KB 786.41 Hall V. Ross (1813) 1 Dow 201 3 ER 672, HL.

2. In my view, the sum total of the foregoing dicta is

that a trial judge must not at all abdicate his or her

duty to assess the appropriate measure of damages. In

deed, best judicial practice dictates that even where

the plaintiff fails to prove his claim, a trial judge

should still put on record his or her observations

relating to the appropriate measure of damages he would

have awarded in the event that the plaintiff had

otherwise succeeded in proving his claim. This would

enable the appellate courts to review his or her

assessment of damages, if necessary, and make

appropriate final orders without having to remit the

case to the trial court for assessment of damages. This

practice could help us achieve expediency in the

administration of justice.

3. The approach I have just suggested is not entirely

unprecedented. In deed, I invite your Lordships to

examine the judicial approach adopted by the High Court

of Uganda and approved by the Court of Appeal for East

Africa in the well known case of Felix Onama v. The

Uganda Argus Ltd.42

42 [1968] EA 511; [1969] EA 92 36 The People v. The Lord’s Bar- reported in East African Law Reports.37Per Kennedy L.J. in National Phonograph Co. Ltd V. Edison-Bell [1908]1 Ch 335.

4. For purposes of illustration of this principle,

however, I shall summarise that case here. The

appellant sued the respondent for libel in respect of a

report of a press conference published in the aftermath

of the publication of a report of parliamentary

proceedings. The trial judge in the High Court of

Uganda held, inter alia, that the report of

parliamentary proceedings was privileged and the report

of the press conference was not defamatory of the

appellant; in case he was incorrect, the trial judge

assessed the damages at sh. 50,000/= having regard to a

number of factors like the appellant’s social and

political standing. Spry J.A., on appeal, approved of

the approach followed by the trial judge and was unable

to differ from the trial judge’s findings. This case,

in my view, is a good precedent on the topic of the

day.

5. Claims for damages based in various species of tort

will always present the court with special difficulties

in assessment of damages. The measures of damages for

personal injury cases and cases other than personal

injuries are controlled by a set different of rules and

principles. Thus, apart from the fundamental principles

relating to the measure of damages generally, the trial

judge must also be alive to those principles governing

the case at bar specifically. Because of time and other

considerations, we cannot discuss these principles

today.

6. From my experience, the following cases render

ascertainment of damages difficult or impossible for

many a trial judge: actions brought under the Law

Reform Miscellaneous Provisions Act, Cap 79 (death as a

cause of action), defamation, personal injury cases

involving permanent disability, product liability,

medical malpractice, professional negligence, nuisance,

and cases involving continuing damage, inter alia. But to

be fair to judges, quite often the parties involved in

litigation and their lawyers are usually guilty of

failure to produce evidence or guiding parameters for

the court’s consideration, with the result that the

trial judge finds himself in that unenviable position

where he is left with nothing at all but his own

discretion to fall back on if he is to determine the

quantum of damages. I will make more remarks on this

undesirable practice later.

7. Another puzzling problem for the trial judge is whether

he o she should follow the scale of awards set by

earlier cases. To what extent is the court limited by

the scale of damages set by earlier cases? Judicial

opinion is greatly divided on this point. I shall

reserve my views for the conclusion of this paper.

Interest on damages

8. The other area that presents difficulty in assessment

of damages is the question whether to include interest

on an award of damages. The jurisdiction of court to

award interest on damages is controlled by s. 26 of the

Civil Procedure Act, Cap 71 which reads as follows:

“s. 26 Interest.

(1) Where an agreement for the payment of

interest is sought to be enforced, and the court

is of opinion that the rate agreed to be paid is

harsh and unconscionable and ought not to be

enforced by legal process, the court may give

judgment for the payment of interest at such rate

as it may think just.

(2) Where and insofar as a decree is for the

payment of money, the court may, in the decree,

order interest at such rate as the court deems

reasonable to be paid on the principal sum

adjudged from the date of the suit to the date of

the decree, in addition to any interest adjudged

on such principal sum for any period prior to the

institution of the suit, with further interest at

such rate as the court deems reasonable on the

aggregate sum so adjudged from the date of the

decree to the date of payment or to such earlier

date as the court thinks fit.

(3) Where such a decree is silent with respect to

the payment of further interest on the aggregate

sum specified in subsection (2) from the date of

the decree to the date of payment or other earlier

date, the court shall be deemed to have ordered

interest at 6 percent per year.”

9. In my view, the law is clear on this point. However, a

great deal of litigation has evolved on the issue of

interest on damages. It is not proposed to discuss this

question in detail within this paper. Broadly speaking,

however, the conflict that arises in this area revolves

around judicial interpretation of the word

‘reasonable.’ Although it would appear that the range

of judicial opinion on this matter is open, the Supreme

Court of Uganda has endeavoured to be consistent. See

Sietco Vs. Noble Builders U Ltd. Supreme Court Civil

Appeal No. 31 of 1995; Kengrow Industries Ltd. v. C.C.

Chandran Supreme Court Civil Appeal No. 7 of 2001;

Premchandra Shenoi & Anor v. Maximov Oleg Petrovich

Supreme Court Civil Appeal No. 9 of 2003; Ahmed Ibrahim

Bholm v. Car & General Ltd. Supreme Court Civil Appeal

No. 12 of 2003; Administrator General v. Bwanika James

& Others Supreme Court Civil Appeal No. 7 of 2003.

10. I find it appropriate here to quote from the

passage of Oder, JSC in Premchandra Shenoi & Anor v.

Maximov Oleg Petrovich, above, because it is a correct

statement of the principle relating to the award of

interest on damages:

“In considering what rate of interest the

respondent should have been awarded in the instant

case, I agree that the principle applied by this

Court in SIETCO v. NOBLE BULDERS (U) Ltd Supreme

Court Civil Appeal No. 31 of 1995 to the effect

that it is a matter of the Court's discretion is

applicable. The basis of awards of interest is

that the defendant has taken and used the

plaintiff's money and benefited. Consequently, the

defendant ought to compensate the plaintiff for

the money. In the instant case the learned

Justices of Appeal, rightly in my opinion, said

that the appellants had received the money for a

commercial transaction. Hence the Court rate of 6%

was not appropriate and I agree with them. The

rate of interest of 20% awarded by the Court of

Appeal was more appropriate.”43

43 See also the passage of Tsekooko, JSC in Ahmed v. Car & General Ltd.,Supreme Court Civil Appeal No. 12 of 2002: “There was no complaint about

IV. RESTITUTIO IN INTEGRUM

1. Restitutio in integrum, or rather restitution, is a general

rule applicable to assessment of damages arising out of

all wrongful acts. This rule is, perhaps, the most

important principle guiding the award of damages in

civil cases. It refers to the principle or rule that

the court must in all cases award damages with the

object of compensating the plaintiff for his or her

loss. In other words, as a general rule, damages should

not be used to serve any other function; neither should

the plaintiff be unjustly enriched under the guise of

an award of damages nor should the defendant be

unjustly punished under the same guise. See Obongo &

Another v. Municipal Council of Kisumu [1971] EA 91;

Ongom & Another v. Attorney-General [1979] HCB 267;

Kyambadde v. Mpigi District Administration [1983] HCB

44; Nsaba Buturo v. Munansi Newspaper [1982] HCB 134;

interest awarded at 45% p.a. Counsel for the appellant did not givenreasons for claiming such high rate of interest. No explanation wasgiven by the trial judge for such a high rate of interest. However unders.26 (2) Civil Procedure Act, the rate of interest is awarded on adiscretionary, basis unless it is agreed to by the parties.

I think that in these proceedings the award of interest on the decretalamount at the rate of 45% was uncalled for and is too high. On thefacts, it is patently unjust. I would award interest at 10% p.a. on $18700 (special damages) from 17/3/1999 till payment in full. I wouldaward interest of 8% on Shs. 5m/= (general damages) from the date ofjudgment till payment in full.”

Ntabgoba v. Editor-in-chief of the New Vision & Another

[2004] 2 EA 234

2. Bowen LJ in The Argentino appreciated the rule thus:

“The court has no power to give more; it ought

not to award less.”44

3. It follows therefore that to make an appropriate

assessment of damages, the first and paramount

consideration should be restitution. In practice,

whether tort or contract, the court should pause the

follow the question: “how much would restore the

plaintiff to its situation just before the wrongful

act?” Technically speaking, other questions or

considerations would be irrelevant and it would be a

misdirection to follow them.

Application in contract

4. Thus, it has been held that the general intention of

the law in giving damages for breach of contract is

that the plaintiff should be placed in the position as

he would have been in the contract had been

performed.45 No more, no less. Gullabhai Ushillingi v.

Kampala Pharmaceuticals Ltd46 Supreme Court Civil

Appeal 6 of 1999; Kengrow Industries Ltd. v. C.C.

Chandran Supreme Court Civil Appeal No. 7 of 2001;

Ahmed Ibrahim Bholm v. Car & General Ltd. Supreme Court

Civil Appeal No. 12 of 2003; Bank of Uganda v. Masaba &

Others [1999] I EA 2; Uganda Telecom v. Tanzanite

Corporation [2005] EA 351

Application in tort

5. Where any injury is to be compensated by damages, in

settling the sum of money to be given for reparation

the court should as nearly as possible get at the sum

of money which will put the party who has been injured

or who has suffered in the same position as he would

have been in if he had not sustained the wrong for

which he is now getting his compensation or

reparation.47 No more, no less. See Interfreight

Forwarders (U) Ltd. v. EADB Supreme Court Civil Appeal

No. 33 of 1992; Musoke v. Departed Asians Custodian

Board [1990-1994] EA 219; Mutekanga v. Equator Growers

(U) Ltd [1995-1998] 2 EA 219; Uganda Breweries Ltd. v.

Uganda Railways Corporation Supreme Court Civil Appeal

No. 6 of 2001 (unreported); Karim Hirji v. Kakira Sugar

Works Ltd. [2005] 2 ULSR 60

6. In deed, in practice, owing to the principle of

restitution, liability for income tax must be

47 per Lord Blackburn in Livingstone V. Rawyards Coal Co (1880) 5 AppCas 25, HL.

considered by the court in determining quantum of

damages to prevent double recovery (where the damages

themselves are not taxable in the hands of the

recipient) or unfair diminution of judicial

compensation (where the damages themselves are taxable

in the hands of the recipient).

V. REMOTENESS

Damages must be proximate

1. It is trite law that damages should not be recovered

where they are too remote with regard to the wrongful

act. In other words, the rule is that the damage

(material loss alleged) must be proximate, and fairly

and reasonably connected with the breach of the

contract or wrong48 One who commits a wrongful act is

not liable for damage which is not the natural or

ordinarily consequence of such an act, unless it is

shown that the defendant has notice of special

circumstances as to render him so liable.49 See Bank

of Uganda v. Masaba & Others [1999] I EA 2; Uganda

Telecom v. Tanzanite Corporation [2005] EA 351;

2. Thus, in my view, the rule of remoteness practically

requires that a proper assessment of damages in any48 Hadley V. Baxendale (1843- 60) All ER Rep 461; See also the dicta ofMartin B in Wilson V. Newport Dock Co (1866) LR I Exch 177 for arestatement of the principle.49 Per Borill CJ in Sharp V. Powell (1872) LR7 CP 253

particular case before a trial court should indicate

exactly where, in the opinion of the court, the law

draws the line on the extent of damages that can be

recovered. See Sendi Edward v. Crown Beverages Ltd

[2005] 2 ULSR 7, where the appellant was precluded from

claiming damages for alleged impotence arising out of

drinking a defective soda product manufactured by the

appellant.

Damages assessed once and for all

3. It is an ancient rule of the common law that damages

must be assessed once and for all; for all injuries

past, present, and future. This principle is frequently

stated in the form of a legal proverb, “Nemo debet bis

vexari pro eâdem causâ. Thus a plaintiff who recovers

damages in one suit would barred from bringing a second

action under the same cause of action for consequential

damage he sustains even though he were put to great

expense, in consequence of the injury he has received;

for it shall be intended that the jury (or court)

considered all possible consequences on the trial of

the first action.50

50 Fetter V. Beale Holt (1701) KB 12.

4. However, the rule is not as strict as it may sound. In

certain cases, a plaintiff may be entitled to bring a

further action. The test was appropriately stated by

Borill CJ in Gibbs V. Cruickshank51 thus:

“The test whether a previous action is a bar

is not whether the damages sought to be

recovered are different but whether the cause

of action is the same.”

5. In my view, the foregoing legal position enunciated at

common law does not differ from what our Civil

Procedure Act, Cap 71 prescribes in section 7 on the

doctrine of res judicata:

“S.7 Res judicata.

No court shall try any suit or issue in which

the matter directly and substantially in issue

has been directly and substantially in issue

in a former suit between the same parties, or

between parties under whom they or any of them

claim, litigating under the same title, in a

court competent to try the subsequent suit or

the suit in which the issue has been

subsequently raised, and has been heard and

finally decided by that court.”

Remoteness and intervening cause

6. It is a well established rule of law that if a

defendant’s breach of contract or duty is the primary

and substantial cause of the damage sustained by

plaintiff, the defendant will be responsible for the

whole loss, though it may have been contributed to or

amplified by the wrongful conduct of a third person.52

In other words, a defendant who acts negligently

towards a plaintiff is at law responsible for the

resulting injury to the plaintiff, even though but for

the intervening act of a third person or of the

plaintiff himself, the injury suffered by the plaintiff

would not have occurred. See, Overseas Touring Co.

(Road Services) Ltd. v. African Produce Agency (1949)

Ltd. [1962] EA 190, where a transport company was held

liable to pay the cost of a customer’s oil tins even if

the majority of these items were stolen by a crowd that

gathered after the transport company’s lorry was

involved in a collision with another vehicle.

7. However, this rule should not interpreted as creating

a carte blanche enabling plaintiffs to present whimsical

claims for damages. The parent rule, that of

remoteness, can always be called in aid to help

indicate exactly where the law should draw the line

between recoverable and unrecoverable damages with

regard to cases involving intervening circumstances.

8. For instance; in one case, through the negligence of a

railway company’s servant, a railway engine fell over

from the defendant company’s railway line into the

garden of the plaintiff. Damage was done to the flowers

in the garden of the plaintiff by a crowd that

assembled there. It was held that the damage done by

the crowd (undoubtedly an intervening cause) was too

remote in the circumstances of this case.53 This

judicial approach to a complex question demonstrates

the harmonization of conflicting rules of the common

law that I referred to earlier on.

Application in tort

9. In keeping with the rule of remoteness, it is generally

accepted that tortious liability of a defendant must be

limited to injury that was reasonably foreseeable as a

direct consequence of his wrongful act in those

circumstances. Thus, a court of law confronted with the

problem of assessing damages arising out of a

defendant’s negligence would do well to adopt an

objective test of ‘reasonable foreseeability’,

qualified in certain circumstances by public policy

considerations. There are a number of reported cases

that demonstrate the continuing relevancy of this time-

honoured principle. The leading case in this area is,

as you may recall, Re Polemis.54

Application in contract

10. In keeping with the rule of remoteness, it is

generally accepted that the liability of a defendant

for breach of contract must be limited to losses that

are the proximate, probable and likely consequences of

the breach, or such as may be taken to have been fairly

in the contemplation of the parties when the contract

was entered into. This principle is explained at great

length in the oft-cited case of Hadley V. Baxendale55

11. There is great doubt among many legal minds as to

whether or not the rule of remoteness is the same for

damages claimed in tort and contract. My view is that

the, rule of remoteness is the same in actions on

contract as in tort: that damages which the plaintiff

is entitled to must result directly from the wrongful

act of the defendant and that no claim can be made to

damages which are too remotely connected with it. The

essence of this rule is to preclude entitlement to

damages which are either too speculative or uncertain.

12. In deed, there may be differences in the

application of this rule to the various actions and one

should approach judicial precedents on this point with

the necessary circumspection. As a matter of practical

guidance, the trial court must have greater regard for

the circumstances of the particular case at bar than

for judicial evaluation of an earlier case,

notwithstanding the range of benefits such comparison

may bring forth.

VI. AGGRAVATION AND MITIGATION OF DAMAGES

1. In addition to the rules discussed above, I would like

to briefly talk about the twin principles of

aggravation and mitigation of damages. Incidentally,

our discussion of aggravated damages touched on

aggravation.

Aggravation in contract

2. Damages in an action for breach of contract are

ordinarily confined to losses which are capable of

being appreciated in money. However in certain

exceptional circumstances, the court would be justified

in looking at all what happened or was likely to happen

down to the day of trial to increase the plaintiff’s

pecuniary and non-pecuniary loss. These circumstances

are called aggravating factors and they have the effect

of increasing the quantum of damages. See Ahmed Ibrahim

Bholm v. Car & General Ltd. Supreme Court Civil Appeal

No. 12 of 2003, where court awarded 5m/= in addition to

other damages to the appellant because it found that

appellant had been humiliated, harassed and embarrassed

by this employers with the object of bringing an end to

the employment relationship.

3. For instance, the conduct of a defendant may be a

relevant factor in the assessment of damages if it

accounts for more than the ordinary losses that a

plaintiff would be put by reason of a breach of a

particular contract. I such cases. It is not unusual

for a plaintiff to aver aggravation in the following

terms: “that defendant’s conduct occasioned injury to

feelings and dignity of the plaintiff.” Lets take the

following examples:

4. A forty-year old putative father breaches a promise to

marry his 36 year old girlfriend of ten years’ standing

while she is pregnant. To commit this breach, he uses

the opportunity of a family re-union to accuse her of

infidelity.

5. An institutional employer summarily dismisses a soon-

to-retire employee two days before the latter was to

become eligible for pension benefits under an

institutional employee pension scheme. To commit this

breach, the agents of the employer post a notice on the

company notice board that the old man has been

terminated because it is suspected he is a thief. No

fair hearing for the old man.

6. In both cases, the plaintiff may recover substantial

damages without proof of actual damage. This is because

the facts cases disclose an aggravating factor. The

breach of contract in both cases is underscored by

aggravation.

Aggravation in tort

7. Similarly, in tort, the existence of aggravating

factors will have the effect of increasing the

plaintiff’s damages. Some of the circumstances of

aggravation that arise in the reported cases include;

the exercise of illegal powers by the state or agents

of the state, insult, levity, arrogance, insolence, and

the defendant’s insistence in a wrongful for instance

where a publisher pleads and attempts rather

unsuccessfully to prove the defense of justification in

answer to an action for libel without exploring out-of-

court remedies. See Obongo & Another v. Municipal

Council of Kisumu [1971] EA 91; Ongom & Another v.

Attorney-General [1979] HCB 267; Kyambadde v. Mpigi

District Administration [1983] HCB 44; Nsaba Buturo v.

Munansi Newspaper [1982] HCB 134; Ntabgoba v. Editor-

in-chief of the New Vision & Another [2004] 2 EA 234;

Machira v. Mwangi [2001] I EA 110.

8. Where the court forms the opinion that the defendant’s

conduct is in the nature of aggravation, it may award

additional damages to compensate the injury to the

plaintiff’s feelings, pain and suffering that is

presumed to have been occasioned.

Some remarks on pleading and practice

9. Generally speaking aggravating factors need not be

stated in the plaintiff. These matters are admissible

in evidence at the trial even though not specifically

pleaded. However, if is desirable that pleadings should

indicate circumstances of aggravation to avoid surprise

at trial. See Ongom & Another v. Attorney-General

[1979] HCB 267.

Mitigation in contract: Duty of plaintiff to mitigate

damages

10. It is a well established rule of common law that

the plaintiff has a duty to mitigate damages. This rule

was ably articulated by Cockburn CJ in the landmark

case of Frost v. Knight56 thus:

“In assessing damages for breach of

performance, a court will of course take into

account whatever the plaintiff has done, or

has had the means of doing, and as a prudent

man, ought in reason to have done, whereby his

loss has been, or would have been,

diminished.”

11. Thus, the plaintiff can not claim any part of the

damage which is due to his neglect to take such steps

that would have the effect of reducing his loss. If the

action he has taken has actually diminished his loss,

such diminution may be taken into account.57

12. The plaintiff carries the ultimate burden to

prove, on a balance of probabilities, that he

discharged this duty. However, if the defendant

contends that the loss proved by the plaintiff could

have been minimized or avoided altogether by the taking

of some step which the plaintiff could reasonably have

taken but did not take, the onus is on the defendant to

make out that contention on the evidence.58

13. But in all breach of contract claims, the court

must inquire into the availability of circumstances of

mitigation that the plaintiff could have called in his

aid. However, it has been held that a sum of money paid

to the plaintiff by insurers in respect of loss

suffered by him is not to be taken as a mitigating

factor.59

Mitigation in Tort

14. Generally speaking, a plaintiff is not bound to

spend money to minimize his damages in tort. However,

where the damage that arises out of a tort committed by

the defendant is akin to a damage that would arise out

of a breach of contract, the law imposes a duty on the

plaintiff to mitigate his losses. For instance, a cab

driver whose motor vehicle is unlawfully detained

cannot maintain a claim for ‘loss of earnings’ without

taking reasonable steps to mitigate his loss. See UCB

v. Deo Kigozi [2002] I EA 293

15. Furthermore, in tort, a plaintiff carries a duty

to act reasonably after a tort has been committed

against them. Thus, a plaintiff who, in remedying

injury occasioned him by the defendant, flies to London

for a medical operation that could have been procured

in Kampala cannot be rewarded in damages for his

unreasonable behaviour. Similarly, a plaintiff who,

refuses treatment for the effects of an assault or

battery and thereby allows himself or herself to suffer

greater injury than originally done him, attracts only

scorn from the court, but not damages, for his

unreasonable behaviour. See for instance, African

Highland Produce Ltd. v. Kisorio [2001] I EA 1, where a

plaintiff, of relatively considerable means could have

retrieved his damaged motor vehicle from the garage in

21 days following the traffic accident but rather chose

to hire a luxurious land cruiser motor vehicle at an

unreasonably high rate and for an unnecessarily long

period, was precluded from recovering the damages he

claimed because he did not act prudently.

16. Lastly, mitigation in tort denotes all the

circumstances which a defendant may adduce in evidence

with a view to securing a reduction of damages that

will be awarded to the plaintiff in the suit. In this

regard, the following circumstances of mitigation have

been judicially considered: (a) Provocation by the

plaintiff as to occasion the assault; (b) Poverty of

the defendant (c) Offer of an apology and an out-of-

court settlement by a publisher of a libelous article

(d) reasonable and probable cause in answer to a claim

of damages for false imprisonment, etc.

VII. CONTRIBUTION AND APPORTIONMENT

1. Where the trial court makes a finding on the evidence

that two or more parties are to blame for the injury

arising out of, say, a road collision, it should

proceed to apportion or distribute the blame between

the parties depending on their level of contribution

(or causation) in the circumstances. Assessment of

damages in this way presents considerable difficulties

for judges and it is advisable that court should invite

technical expertise, at the cost of the parties, to

help determine these matters.

2. It is not possible to lay down a single principle

guiding contribution and apportionment of damages but

neither should it be left to realm of mystery. In all

cases where apportionment is possible, the court’s

inquiry must proceed along this line: How far was the

eventual damage/loss caused by the actions of the each

of the parties involved? Liability is broadly

apportioned in percentages and the appellate court will

not lightly interfere with apportionment of blame made

by the trial court. See Overseas Touring Co. (Road

Services) Ltd. v. African Produce Agency (1949) Ltd.

[1962] EA 190; Uganda Breweries Ltd. v. Uganda Railways

Corporation Supreme Court Civil Appeal No. 6 of 2001

(unreported).

3. In practice, matters touching contribution and

apportionment should be specifically pleaded and proved

because these are the kind of circumstances (i.e.

usually negligence) for which particulars are needed.

See 0rder 6 rule 3 Civil Procedure Rules SI 71-1

(particulars to be given where necessary).

VIII. DISTINCT RULES FOR MEASURE OF DAMAGES IN CONTRACT &

TORT

1. The breadth of the common law represents what is both

good and bad about such a system of judge-made rules

and principles. Therefore, I expect to be understood

when I say here that, because the common law has

developed a myriad rules and principles relating

distinctively to the measure of damages in both tort

and contract respectively, it is bad. The breadth or

diversity of the common law is bad in the sense that it

renders it difficult for us to discuss these distinct

rules at great length in today’s forum. I am consoled

by the fact in over 30 years of my devotion to the

legal profession, I am yet to hear of a single meeting

of legal minds anywhere in the Commonwealth where the

entire body of the common law was discussed

exhaustively.

2. Thus, whereas I have endeavoured to discuss the basic

rules and principles that are common to measure of

damages in both tort and contract, it is not proposed

to discuss the distinct rules as well in this paper.

But I am sure that your Lordships will ably appreciate

them in the course of your vocation.

E. APPEALS

1. Assessment of damages is principally the duty of the

trial court. In deed, although appellate courts within

the Commonwealth, including ours, are by statute

enabled to invoke any of the powers of a trial court,

in practice, they will not engage in the activity of

assessment of damages except in the most exceptional

circumstances. See Fredrick J. K. Zaabwe v. Orient Bank

& Others Supreme Court Civil Appeal No. 4 of 2006

(unreported).

2. The role of the appellate court in the province of

damages as articulated by Greer LJ in Flint v. Lovell60

is the correct statement of the legal principle

applicable in the appellate courts of Ugandan with

regard to damages in civil suits:

“An appellate court will be disinclined to

reverse the finding of a trial judge as to the

amount of damages merely because it thinks

that had it tried the case in the first

instance it would have given a greater or

lesser sum. In order to justify reversing the

trial judge on the question of amount of

damages, it will generally be necessary that

the appellate court should be convinced either

(a) that the trial judge acted upon some wrong

principle of law, or

(b) that the amount awarded was so extremely high

or very small as to make it, in the judgment of

the appellate court, an entirely erroneous

estimate of the damage to which the plaintiff

is entitled.”

3. The above principle has been applied by the Supreme

Court of Uganda in a number of cases. See Impressa

Federici v. Irene Nabwire Supreme Court Civil Appeal

No. 3 of 2000; Uganda Breweries Ltd. v. Uganda Railways

Corporation Supreme Court Civil Appeal No. 6 of 2001

(unreported); Kengrow Industries Ltd. v. C.C. Chandran

Supreme Court Civil Appeal No. 7 of 2001; Premchandra

Shenoi & Anor v. Maximov Oleg Petrovich Supreme Court

Civil Appeal No. 9 of 2003; Ahmed Ibrahim Bholm v. Car

& General Ltd. Supreme Court Civil Appeal No. 12 of

2003; and Administrator General v. Bwanika James &

Others Supreme Court Civil Appeal No. 7 of 2003; Bank

of Uganda v. Masaba & Others [1999] I EA 2; inter alia.

Wrong principle61

4. Per Oder, JSC in Uganda Breweries Ltd. v. Uganda

Railways Corporation Supreme Court Civil Appeal No. 6

of 2001 (unreported):

“In my view, the award of Shs. 280 million or

DM400, OOO cannot be left to stand. On the

authority of Bank of Uganda -vs- F. W. Masaba ,

supra, this court can interfere with the award,

because it was not properly assessed and was

made on wrong principles. ... In the

circumstances, I would award DM 213, 116. 36

as special damages to the respondent.”

Entirely erroneous estimate

5. Per Oder, JSC in Administrator General v. Bwanika James

& Others Supreme Court Civil Appeal No. 7 of 2003:

“The Court of Appeal held the view that the

provisions of the Currency Reform Statute

(Repealed) did not apply to the instant case.

I agree with that view.

It is trite law that an appellate court should

not interfere with an award of damages by a

trial court unless the award is based on an

incorrect principle or is manifestly too low

or too high. In the instant case, the learned

Justices of Appeal interfered with the award

of damages by the trial Court and awarded a

lower figure. Be that as it may, my opinion is

that the sum of Shs. 424,891,540/=,

representing the purchase price of Shs.

93,995,560/= of the commercial building, which

the appellant should have paid to the

respondents is still too excessive. This state

of affairs arose because the Hon. Justices of

Appeal used the Future Value Interest Factor (FVIF)

formula in assessing what should be awarded to

the respondents. In my view, the respondents

would be fairly compensated if the award to

them was assessed by subjecting the sum of

Shs. 93,995,560/= to a factor of 10% per annum

at simple interest for the period of 17 years.

This is the period from 1986, when the suit

cheque was paid to the appellant's account to

May 2003, when the Court of Appeal varied the

trial Court's award of damages to the

respondents. This plus the principal would

yield the amount payable under this item to

Shs. 226.788,012/= (of which Shs.

142,792,452/= is accrued interest) .

The award of general damages of Shs.

10.000,000/= to each of the respondents,

making a total of Shs. 100.000,000/= awarded

by the Court of Appeal to all the respondents

was, in my opinion fair in the circumstances

of the case. It is not excessive. I would not

interfere with that item of the award.

In the result, I would make a total award of

Shs. 326,788,012/=, payable to the

respondents. This sum should carry interest at

6% (the Court rate) from 7/7/2003, the date of

the Court Appeal judgment till payment in

full.”

6. This general rule should also guide a High court judge

in determining appeals from the magistrate courts. Once

a trial court has determined the measure of damages,

this principle presents the appellant with

insurmountable difficulties, and rightly so in my view.

Litigation on a very imprecise point like assessment of

damages should not be unnecessarily encouraged.

F. SOME RECOMMENDATIONS ON PRACTICE & PROCEDURE

I wish to make some practical recommendations relating

to assessment of damages.

Proof of damages

1. In all civil cases, the burden of proving claims in a

suit rests on the plaintiff and the standard of proof

is on the balance of probabilities. Although the law

presumes general damages to flow from the wrong

complained of, it is trite law that the plaintiff must

plead and prove claims of special damages, if any. This

rule applies where the suit proceeds inter parte or ex

parte. Thus, even where the defendant neither files a

defence nor enters appearance, the plaintiff bears the

burden to prove his claim to the required standard. The

burden and standard of proof do not become any less:

Mutekanga v. Equator Growers (U) Ltd. [1995-1998] II EA

219. See also Kyambadde v. Mpigi District

Administration [1983] HCB 44 for the proposition that

although special damages must be strictly proved, they

need not be supported by documentary evidence in all

cases.

2. In deed, even where a party admits liability, the suit

must be set down for a proper inquiry into the issue of

damages: Impressa Federici v. Irene Nabwire Supreme

Court Civil Appeal No. 3 of 2000 (unreported). This is

why it is fondly said within the common law

jurisdictions that damages are always in issue.

3. However, what is less trite is that prudence, if not

the law, requires the parties or their lawyers to

provide the court with proper guidance relating to the

inquiry of damages generally. They seem to be content

with proving a cause of action and inviting the court

to do what is proper when it comes to the various

reliefs prayed for. Consider the typical dilemma of a

trial judge as presented here by Ogoola J. (as then

was) in Bhadelia Habib Ltd. v. Commissioner General,

URA [1997-2001] UCL 202:

“On the plaintiff’s claims for damages, I am

therefore left only with the issue of general

damages. On this one, both counsel for the

plaintiff and the defendant were

uncharacteristically unhelpful. The

plaintiff’s counsel merely alleged a claim of

sh.20 million, not a word on why that figure,

or how it is arrived at. The latter counsel

did not challenge the substantive claim, or

the figure. In these circumstances, I am left

with nothing at all but my own discretion to

fall back on. Considering the plaintiff’s

propensity for a little exaggeration of his

claims in this case, I am prepared to award

him general damages in the amount of Shs. 5

million.”

4. My recommendation is that the parties, their lawyers as

well as the trial court must give ample resources to

the inquiry of damages during litigation. The

impression, among some quarters of the bar and bench

(especially the lower bench) that general damages are

“damages at large” and any figure picked “from the

blue” would suffice, is at best, disturbing and, at

worst, entirely erroneous in my view.

5. The parties, their lawyers, and the court must at all

times suggest a reasonable hypothesis for their inquiry

of damages. Witnesses must be called for the purpose of

making out a party’s claim for damages. The courts

should encourage the parties’ use of the rules of

discovery, inspection and production with a view to

collecting evidence relevant to the measure of damages

in a given case. This judicial approach will

undoubtedly promote the common law tradition of respect

for an assessment of damages made by a trial court as

prescribed by the rule in Flint v. Lowell [1935] I KB

354, above.

G. CONCLUSION

By way of conclusion, allow me to quote from a Commonwealth

precedent known as Grey V. Alanco62 from the Canadian

jurisdiction. It is fondly said that such precedents carry a

persuasive value in a jurisdiction like ours. Well then, I

intend to persuade your Lordships to enjoy the task of

assessing damages with the following passage:

“There are two concurrent principles in assessing

damages; one, that the injured party must be made

whole so far as money can do so, and the other,

62 [1965] 2 OR 144; 50 DLR (2d) 17 (Canada)

that compensation cannot be perfect. The latter is

a judicial warning against excess, and hence in

assessing damages, once and for all, and thus

including prospective losses, the court will

discount them heavily because of the contingencies

of life. Judges, indicating an amount as damages,

indicated what would be socially acceptable in the

community, and, having some idea of the awards

made by other judges, their opinion reflects the

discipline of previous and current awards.”

Thank you very much for your time.

REFERENCES

1. Halsbury’s Laws of England, Fourth Edition,

Vol.12, Butterworth; London, 1975, P411-501.

2. The Digest of Annotated British, Commonwealth and

European cases, 2nd Re-issue, Vol.17 (2)

Butterworth; London, 1994.

3. Black’s Law Dictionary.

4. Worlds And Phases Legally Defined.

5. The Uganda Commercial Law Reports 1997-2001. [UCL]

6. Uganda Law Society Reports [ULSR]

7. The High Court Bulletin [HCB]

8. East African Law Reports [EA]

9. All England Reports [All ER]

10. Supreme Court Digest

44 Per Bowen LJ in the Argentino (1889) 14 App Cas 519, HL.45 Per Wertheim V. Chicoutimi Pulp Co [1911] AC 301; See also RobinsonV. Harman [1843-60] All ER Rep 383.46Per Mulenga JSC in Gullabhai Ushillingi Vs Kampala Pharmaceuticals LtdSupreme Court Civil Appeal No. 6 of 1999: “I respectfully agree thatthis is the correct statement of the law. I would add that it ispremised on the principle of restitutio in integrum. Damages are intended torestore the wronged party into the position he would have been in ifthere had been no breach of contract. Thus, in the case of employmentfor a fixed period which is not terminable, if there is no wrongfultermination, the employee would serve the full period and receive thefull remuneration for it. And in the case of the contract terminable onnotice, if the termination provision is complied with, the employeewould serve the stipulated notice period and receive remuneration forthat period, or would be paid in lieu of the notice" 51 Gibbs V. Cruickshank as reported in LR 8 CP.52 Per Lord Alverstone CJ in the oft-cited case of De La Bere V. PearsonLtd [1907] I KB 483. See also the dicta of Hamilton LJ in Lathan V. RJohnson (1913) KB 39853 Scholes v. Northern London Railway Co. (1893) (1870) 21 LT 835 54 [1921] 3 KB 560.55 [1843-60] All ER Rep. 46156 [1861-73] All ER Rep 22157British Westinghouse Electric Manufacturing Co. Ltd V. UndergroundElectric [1912] AC 673. 58 Goldberg V Shell Oil Co. of Australia Ltd. [1990] 95 ALR 711.59 Lates V. Whyte (1834) 4 Bing NC 272. These are collateral matters, asopposed to incidental matters, and they should not be considered in aninquiry of mitigation.60 [1935] 1 KB 354.61 See also the judgment speech of Tsekooko, JSC in Ahmed Ibrahim Bholmv. Car & General Ltd. Supreme Court Civil Appeal No. 12 of 2002: “The trial judge found that the appellant “was harassed, embarrassed andhumiliated by the General Manager.” Because of that holding, the learned judgeawarded the appellant Shs 30m/=. My understanding of the findings of thejudge is that although he described the damages as general damages(which must be due to the way the 5th issue was framed), on the evidence

and the pleadings, these are punitive or exemplary damages which theappellant had claimed in the plaint and he adduced evidence to provesuch damages.….On damages it is now established that an appellate court will notreverse a judgment, or part of judgment, of a court below on a questionof damages unless the appellate court is satisfied that the judge actedon a wrong principle or that the amount awarded was so extremely largeor so very small as to make it an entirely erroneous estimate of thedamage: See Singh v. Kumbhal (1948) 15 EACA 21; Henry. H. Ilanga Vs M. Manyoka (1961) EA705 and Obongo's case (supra) at page 96.

I have held that the trial judge erred by including an element of[punitive] damages for wrongful dismissal in the award of 30m/=. Heacted on a wrong principle. I have pointed out that the trial judge wasnot guided by any authorities in that award. In my opinion since theappellant had been awarded US$ 18700 as salary for the residue of thecontract which was terminated, punitive damages of Shs. 30m/= would beinappropriate and too high. Considering that the appellant was subjectedto high handed mistreatment, and bearing in mind the award of US$18700,I think that Shs. 5m/= would be adequate.

There was no complaint about interest awarded at 45% p.a. Counsel forthe appellant did not given reasons for claiming such high rate ofinterest. No explanation was given by the trial judge for such a highrate of interest. However under s.26 (2) Civil Procedure Act, Cap 71,the rate of interest is awarded on discretionary basis unless it isagreed to by the parties. I think that in these proceedings the award ofinterest on the decretal amount at the rate of 45% was uncalled for andis too high. On the facts, it is patently unjust. I would award interestat 10% p.a. on $ 18700 from 17/3/1999 till payment in full. I wouldaward interest of 8% on Shs 5m/= from the date of judgment till paymentin full.

In conclusion, I would allow the appeal with costs here and in the twocourts below. I would set aside the judgment and orders of the Court ofAppeal. I would restore the award by the trial judge of $ 18700

ENDNOTES

representing salary for the residue of the contract. I would awardinterest thereon at the rate of 10% p.a. from date of judgment of HighCourt till payment in full. Instead of Sh. 30m/= awarded as damages bythe trial judge, I would award the appellant Shs 5m/= as punitivedamages with interest thereon at the rate of 8% p.a. from date ofjudgment of the High Court till payment in full.” See also Kengrow casefor illustration of wrong principle.”