The hammer falls and the aging judge says, ‘I find the 2nd Defendant liable for the accident that caused the death of the minor [….] and I hereby sentence the 2nd Defendant to….’
‘Counsel, please translate for me’, client A.K implores me to help him.
I figure that he wants me to interpret to him the meaning of the term liability and whether or not Court has found any of the three accused guilty of the accident that led to the death of his grandson. That is all he asked me to pray for from Court: liability.
Softly and slowly, I begin, ‘The Court has found the 2nd Defendant guilty and the judge is sentencing him to….’
Liability in law
Liability means responsibility. A party that is responsible for something is ‘liable for that thing in law’ and a party that is not responsible for something is ‘not liable in law’. In our jurisdiction, actors must be held accountable for their actions and hence it is important to hold sessions or make findings of which party is liable or not.
The issue of liability is from the consequences that result from the actor’s actions or omissions. Otherwise, without consequences, there is no need to establish liability because no act led to an illegality.
To establish liability is to find remedies or establishing proper punishments to actors found guilty/liable in law.
There are two major Liabilities in auto mobile accidents in our jurisdiction. They are;
In strict liability, a person is solely liable for his acts or omissions. The liable person therefore is made responsible for the damage he caused to the aggrieved person and must solely reimburse the aggrieved person for that damage.
Tortious activities like affray (fighting in public), nuisance, slander, defamation, etc. are acts of the tortfeasor (actor) who is responsible for that tort and therefore is strictly liable for them and the punishment they carry in law.
Vicarious liability is provided for under the law of agency.
In agency, there is the principal and the agent. The principal contracts an agent to act on his behalf. Therefore, the acts of the agents are regarded as if the principal was acting in his capacity. This is the same in contracts and employment law.
Vicarious liability is where liability for the acts or omissions of the agent are seen as the principal’s acts. This situation arises where the actual perpetrator was under direct or indirect supervision, employment or instruction from the owner of the vehicle.
Some jurisdictions like in the United States have abolished this form of liability owing to the lucrative car hire services/business where the hirer is solely responsible for the motor vehicle once he has physical possession of it.
However, in Uganda and most common law countries, this form of liability still exists.
For example, a company owning a bus can be held liable for the acts of its driver or other person, whether authorised or not, as long as its vehicle was involved or caused an accident during employment. The law follows the principal-agent relationship to establish vicarious liability and to hold the principal liable for the acts of his agent. Rarely do Courts hold principals liable for the agents or other persons using principal’s vehicles outside of designated working hours. But this liability can be established on a case by case basis.
Liability vis-a-vis Remedy
Judicial processes dictate that for every liability established or not, an equally judicial remedy must be available for the parties.
In civil matters for instance, a pecuniary punishment alone may be required. The liable party reimburses the other. In criminal law, the guilty person must serve a punishment since our jurisdiction considers criminal offences as offences against the state; and not necessarily against an individual only. Criminal offences include murder, robbery, aggravated robbery, rape and defilement, aggravated rape/defilement etc.
This instance is tricky in auto mobile accidents but possible to find. In exercise of its legal authority, Courts have to first establish the party that is liable for the accident or not and thereafter issue an appropriate remedy.
Accident cases can be difficult to prosecute. However, if liability is established, the aggrieved party gets closure. Liability is important for closure and issuing remedies. My client got both despite the absence of his grandson.
BY ATUHAIRWE AGRACE
This article appears in our law newsletter Vol 3 Issue 3 of March 16th 2018. To receive The Deuteronomy in real time, click HERE