CASES

SOPHIE NAKITENDE V MABU COMMODITIES LTD H.C.C.S No. 117 of 2016

BRIEF FACTS:

The plaintiff brought a suitvagainst the defendant for the breach of a tenancy agreement, special damages, genera damages, recovery of valuable items(tools of trade) confiscated by the defendant as well as costs of the suit.
The plaintiff entered into a tenancy agreement in 2008 with the defendant. In 2016, the plaintiff slightly delayed to meet to meet her rental obligations for the first quarter of the year and while she was away, the defendant without according her a fair hearing broke into her shop on 15th March 2016, seized the merchandise and locked it up. The defendant contended that the plaintiff defaulted on her rent for the month ending on 15th January, 2016, closed her shop and disappeared without notisfying her officers. On 15th March, 2016, the plaintiff’s merchandise was in the presence of the LC1 Chairperson transferred to the storeroom for storage.

ISSUE:

Whether the tenancy agreement between the plaintiff and the defendant was lawfully terminated?

RULING:

Court observed that there was an oral contract and as such it was hard to impute fundamental terms but ratherthe conduct of the parties would give court in establishing when breach would arise.

Court further guided that the defendant who wanted to apply the strict rules of enforcing a contract had a duty to ensure that the contract is in writing.

Court further observed that the oral agreement did not provide for the consequences of non payment of rent on the due date.

The absence of any written tenancy would imply that no stringent terms could be invoked to the extent of closing the shop without some due process.

In his Lordship’s dictum, the landlord should not be allowed to use all means available to recover rent arrears or obtain vacant possession of non payment of rent by the rent.

A landlord should not exercise his rights of re-entry or recovery of vacant possession, extra -judiciary and acts of hooliganism should not be encouraged and allowed by the court of justice.

He further guided that parties should manage their businesses in an organised and orderly manner in order to avoid self help in the landlord-tenant relationship which would turn out to be reasonable and unfair.
Court added that the act of the defendant seizing the property of the plaintiff was illegal since there wasmno agreement that if she defaults on the rent payments, the defendant would be allowed to close the shop and seize the property.

It was therefore held that court shall not allow landlords to use extra-judicial means in recovery of rent arrears or vacant possession especially where there is no written agreement and therefore no landlord without a tenancy agreement should evict a tenant in an arbitrary manner or without due process.

PATRICK SEMBAYA AND ANOTHER V NATIONAL HOUSING AND CONSTRUCTION CORP. HCCS NO. 53 OF 2016

BRIEF FACTS

The plaintiff on the 30th August, 2015 while riding a bicycle near the excavation site, slipped, fell into it and suffered severe injuries. The defendant carried out an excavating project in Nalya which stretches about half a kilometre with a height of a storeyed building negligently and carelessly abandoned and failed to fence it.

ISSUE:

Whether the defendant is liable for the injury suffered by the plaintiff?

RULING:

The Learned Justice had this to say, “Although the standard of care is uniform, the degree of care required varies directly with the risk involved. The higher the risk involved, the greater the care required“.

The defendant company was carrying out construction and had excavated a 15ft deep pit in a partly residential area. This would have required them to put extra measures or reinforcement just in case any person had knocked the barricade.

In considering whether some precautions should be taken against a foreseeable risk, there is a duty to weigh on the hand, the magnitude of risk, the likelihood of an accident does happen on the other hand, the difficulty, expense and every other disadvantage of taking the precautions.

The learned judge further held that the doctrine of contributory negligence does not always apply to children. It is not a defense to say that the child itself was negligent because negligence is a state of mind and children children have no sufficient mind to judge as quickly as an adult.

When the plaintiff is a child, allowance must be made for his inexperience and infirmity of judgement. The category of the minor will be a major factor in applying the principle of contributory negligence.

For purposes of further clarity, the learned judge further held that an infant cannot be negligent but a minor of tender years maybe able to exercise a sense of judgement and thus be liable for contributory negligence.

MONTGOMERY V LANARKSHIRE HEALTH BOARD [2015] UKSC 11

BRIEF FACTS:

The claimant was a woman of small stature and a diabetic under the care of a doctor during her pregnancy and labour. The doctor did not inform her of the 9-10% risk of shoulder dystocia, where the baby’s shoulders are unable to pass through the pelvis among diabetic women as she viewed the problem being very slight and a caesarean section which is not in the claimant’s interests.

The baby suffered from severe disabilities after birth due to shoulder dystocia. The claimant sought damages from the health board for negligence on the part of the doctor for failing to advise her on the risk of shoulder dystocia. The court of session ruled that there was no negligence based on Hunter v Hanley test and that there was no causation since the claimant would not have submitted to a caesarean birth even if informed to the pregnancy risk.

ISSUE:                                                          

Whether the doctor had been negligent in failure to disclose the risk to the claimant?

RULING:

The Supreme Court affirmed the requirement of informed choice or informed consent by patients in medical treatment that rests fundamentally on the duty of disclosure by the medical practitioners.

In however minimal the risk might be, the doctor had a duty to make that risk known to the patient before taking onto them any kind of treatment. Even if the patient’s knowledge of the risk my not change, the patient has a right to consent to such a risk and therefore non-disclosure of risks by medical persons would be denying patients their rights to consent to treatment amidst risks hence they will be held liable under medical negligence.

The doctors have a duty to take reasonable care to ensure the parents are aware of “material risks” and must disclose any risk to which a reasonable person in the patient’s position would attain significance.

“A patient is autonomous and should be supported to make decisions about their own health and take ownership of the fact that sometimes success is uncertain and complications can occur despite the best treatment”.

DONOGUE V STEVENSON [1932] AC 562

BRIEF FACTS:

Mrs. Donoghue went to Minchella’s café with her friend who bought for her ginger beer. After she took the beer and in the one that remained in the bottle tht the friend emptied into the tumbler was a nauseating foreign body(snail) that floated out. Mrs. Donoghue was taken ill, poisoned by the drink or sickened by the thought of it or both. Mrs. Donoghue claimed that Stevenson, who had bottled the ginger beer and sold it to Minchella was under the legal duty to prove the facts she alleged, he was not liable in law, so there is no point for going to trial.

This case was appealed up to the House of Lords and was allowed.

ISSUE:

Whether as a matter of law in the circumstances alleged, the defender owed any duty to the pursuer to take care?

RULING:

Court [HoLs] noted that the defendant owed a duty to the pursuer to take care because it was under the law of negligence which is distinct and separate in tort. Court established that there doesn’t need to be a contractual relationship for the duty to be established meaning “the manufacturers owe a duty of care to the customers who they intend to use their product”.

Court in this case also established the neighbour test where Lord Atkin stated: “the rule that you are to love your neighbor becomes a law you must not injure your neighbour: and the lawyer’s question “who is my neighbour?” receives a restricted reply.

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Who then in the law is your neighbour? The answer seems to be persons who are closely and directly affected by the act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”