Gaping Man Holes And Drains In Uganda: A Legal Perspective

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Last updated on January 4th, 2023 at 08:56 am

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Paulina Tindarwesire in 1978 while in Kabale Town at around 8:00 pm walking through a common path near a market place suddenly fell in a deep pit. Without knowledge or warning that the pit had been excavated by the Town council which was not fenced or lit, she sustained several injuries and claimed compensation in court against the Town council and awarded Shs. 45,000/= as general damages ( See: Paulina Tindarwesire V. Kabale Town Council (1980) HCB 33).

There has been indeed several occurrences of people falling in uncovered manholes and most recently, to be precise on 9th May 2020, a video of Cissy Namukasa who unsuccessfully tried to fight for her life after falling into one uncovered manhole circulated on social media. Her cry for help, attracted a truck driver who braved the heavy down pour to rescue the drowning lady in vain. Quite a sad video it was to watch.  To the surprise of many, the Police Spokesman Fred Enanga days later informed the public how Police had given up on the search for the body of the deceased.

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Damaged and broken manhole and drain covers are just one of the many dangers on our roads, highways and pavements. A missing or badly placed drain or manhole cover can cause accidents such as a pedestrian falling into the hole or cyclist hitting the cover or hole with a bike. If the cover is on the road, it can even cause a driver to lose control of their vehicle causing a variety of moderate to serious injuries.

The local authorities among others either take too long to repair defects and damages or don’t put warning signs during construction leaving the manhole and drains exposed and only rise to the occasion after an individual has sustained injuries.

 

One may then ask, who is responsible? The answer depends on where the the manhole or drain is located. Where the man hole or drain is located on private property, the owner or occupier of the property under occupiers’ liability is responsible for making sure they are covered with a properly fitting cover or ably visible warnings.

For public places such as pavements and roads; local authorities or utility companies depending on the purpose of the drain or manhole are responsible for maintaining and repairing manholes and drains in public spaces.

Whichever party there is a legal duty of care to ensure that manhole and drain covers are checked on a regular basis and action taken to ensure they are safe as possible. When the manholes or drains are not covered they lead to several individual injuries that result from slips, trips and falls.

The injuries caused by exposed manholes and drains differ depending on their nature. For instance individuals may sustain the following injuries; bruises, bumps and lacerations, leg and hand fractures or even death as seen in the recent case at Nakawa Junction.

When one sustains injuries from exposed manholes and drains, it’s advisable to seek medical attention immediately. This is because whereas some injuries maybe visible and immediate others maybe long term and internal such as infections and concussions.

Upon receiving medical treatment make sure a medical report is made about the injuries and this will also help to provide evidence if you choose to make a compensation claim under Tort law in future.

To safe guard your interest in a claim for compensation there are few things you must do immediately after sustaining the injury:

  • Use your mobile phone or any other recording device to take plenty of photographs covering all angles of the injury site.
  • Get names and contact details of anybody around who witnessed what happened.
  • Liaise with your lawyer to get statements from those witnesses as soon as possible
  • Retain receipts that show injury related expenses incurred.
  • Get CCTV footages if available.
  • Make a report to police.

Individuals who have sustained injuries resulting from exposed manholes and drains may seek compensation from those liable. There are two modes of claiming compensation and one is an out of court settlement, the other being filing a claim in Court.

How much to claim is dependent on several factors such as the extent of the injury, expenses and how much you lost in the period you were receiving treatment, whether the injury is permanent or resulted in to death.

For those who pursue claims through court there are three different categories of compensation in exposed manhole and drain injuries.
The first category of compensation in manhole or drain cover injury claims is known as special damages and relates to monetary reward for costs incurred and relates to issues such as;

  • Adaptions to the home for instance ramps where the injury incapacitated the lower limbs.
  • Medical expenses.
  • Incomes lost as a result of the injury.
  • Predicted future loss of earning if the injury disables you from working.
  • Predicted future medical expenses especially for the foreseen injuries.

Special damages must be specifically pleaded and proved and this gives the Court no room for variations or discretion when it’s fully convinced that the amount was or will be incurred.

The second category of compensation is general damages and this is at the discretion of court since they are non-quantified and relate to issues such as;

  • Mental anguish
  • Permanent injuries.

The third category of compensation is exemplary damages, whose rationale is not to enrich the claimant but to punish the defendant and deter them from repeating their breach.

In order to pursue a successful manhole compensation claim the initial goal is to prove negligence under Tort law on behalf of the party responsible for the manhole or drain. Courts have laid down three elements that must be proved in negligence claims;

  • duty of care,
  • breach of duty of care and
  • causation and remoteness of damage.

Duty of care: The act or omission complained of must in the first instance be giving rise to a lawful duty. In a claim for compensation under negligence it must be proved that the defendant owed a duty of care to the claimant. Where the claimant fails to establish this in the particular circumstances of the claim, there will be no point in considering whether a particular act or omission which has resulted in harm was negligent.

There is no doubt that local authorities or utility companies owe the public a duty of keeping drains and manholes covered at all times or when exposed, visible warnings are in place.

Breach of duty: There is a standard of care required of the defendant in performance of their duties, failure of which amounts to breach of duty. This often happens when the risk of harm arising from an activity outweighs the cost or inconvenience of taking precautions to avoid it. Like duty of care, this involves considerations of foreseeability.

Failure of the responsible party to keep the manholes or drain covered or sealed off with warning equipment amount to breach of duty.

Causation and remoteness of damage: Once a duty of care and a negligent act or omission have been proved, this third element of negligence must be dealt with. This is that, the injury was caused by the breach of duty. The burden of proof is on the claimant to establish that the negligent act caused, or substantially contributed to, the damage or injury which he or she suffered.

The law will not provide compensation for damage which it regards as too remote from the accident injury itself. The law is that the defendant will not be liable for damage which is too far removed from the negligent act or omission because the defendant could not have foreseen the particular kind of damage which occurred.

The concept of foresight which is considered in relation to duty of care and breach of duty also arises at this stage in the negligence action. However, the concept of foresight is limited and unless the responsible party is able to provide evidence that they served their duty of care they will likely be held responsible for any injury/illness.

Due to increasing crime and instances of vandalism, manhole and drain covers have been stolen or damaged but even this may not be enough to escape liability especially where court finds out that the covers were not safe and secure.

The liability of the responsible parties may be limited or extinguished by a number of factors depending on the circumstances:

  • The claimant may not be able to recover or if they do, the damages are reduced especially where it was due to their own fault under the comparative negligence defence.
  • A trespasser on a private property who is injured by exposed manholes or drains may not be able to successfully claim compensation from the occupier of the property.
  • A claimant who with full knowledge of the exposed manholes and drains consents to the use of premises may not recover compensation under the defence of volenti non fit injuria.

It is advisable to pursue a claim sooner rather than later to ensure details of the incident do not become blurred in your mind, something which can reduce the strength of your claim.

In tandem with all personal injury claims arising from negligence there is a six year window of opportunity during which you can pursue a claim for injuries incurred as a result of missing/ defective/ looser manhole covers. This is founded in Section 3 of the Limitation Act Cap 80 and upon expiration of the six years the claim maybe time barred.

In instances where the victim dies instantly or later due to injuries resulting from the manhole or drain being exposed before they claim the compensation, under Section 5 of the Law Reform (Miscellaneous Provisions) Act Cap 79, there is survival of the right to sue in tort where the deceased would have been entitled to sue had he/she survived the tort. The right to sue is only limited to family members as provided for in Section 6 of the Act.

The importance of pursuing personal injury compensation against the responsible parties is unlikely to change their way of ensuring manholes and drain covers are safe and secure in future unless they feel some kind of financial penalty (exemplary damages). Furthermore, Court may give certain orders against the responsible parties to make safety procedures that meet the standard for maintenance of manhole and drain covers.

So while the injured party may focus on the amount of compensation awarded in a manhole injury claim, the public will have got an opportunity for prompt changes and a safer environment in the future to be established.


Emmanuel Kanyesigye
Emmanuel Kanyesigye

Emmanuel is a Lawyer.


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