Berjaya Beauvallon Bay Beach Resort Limited v Savy & Anor (CS 108 of 2014) [2023] SCSC 60 (30 January 2023)

ANDRE JA

Introduction

1. This judgment arises out of an amended plaint (hereinafter referred to as plaint) filed by Berjaya Beauvallon Bay Beach Resort (hereinafter referred to as the plaintiff) on 23 January 2019 against Ricchi Savy (hereinafter referred to as the 1^st defendant) and Allied Agencies Limited (hereinafter referred to 2^nd defendant), (cumulatively referred to as defendants), on a claim of fault against the 1^st and 2^nd defendants respectively. The plaintiff prays that this Court declares the 1^st and 2^nd defendants jointly and severally liable for the damage and loss allegedly sustained by the plaintiff of SCR 772,805 with costs and interest. It is to be noted that the first plaint was filed by the plaintiff on 29 October 2014 with H Savy Insurance company Limited cited as the plaintiff.
2. The defendants by way of amended statements of defence filed on 15 November 2017 and 22 November 2017 deny the claim and liability and prayed for dismissal of the plaint with costs.
3. Submissions filed in this case have been considered in this judgment.

Background (as per pleadings)

Plaintiff’s case

4. Plaintiff avers that on 26 August 2010, the 1^st Defendant was driving S15555 which has been in the custody and care of the 2^nd Defendant’s employee – a relative of the 1^st Defendant. It is averred that the 1^st Defendant lost control of the vehicle and this resulted in a collision of vehicles S15555 and S19268, the latter belonging to the plaintiff.
5. It is averred that vehicle S19268 was insured by H.Savy Insurance Company Ltd under a comprehensive Motor Vehicles Insurance Policy HS1/070/1/00137/1996, while vehicle S15555 was insured by State Assurance Company Ltd.
6. Plaintiff avers that at the time of the collision, the vehicles were in operation but as a result of the 1^st Defendant’s operation of vehicle S15555 the collision occurred and this renders the latter solely liable.
7. Plaintiff avers that in the alternative to the above, the collision of the two vehicles is attributable to the 1^st Defendant’s fault and/or negligence. Plaintiff particularises the fault as follows: that the 1^st Defendant failed to brake, control or stop vehicle S15555 to avoid the collision. Moreover, the 1^st defendant failed to keep any proper lookout and to drive competently and adequately.
8. That as a result, the plaintiff suffered the total loss of vehicle S19268 because it was written off. As such, the 1^st and 2^nd Defendant are liable to make good to the plaintiff for SCR 772,805.
9. Plaintiff further avers that in December 2010, it contacted the 2^nd Defendant in respect of the accident and the latter informed that they accept liability for the accident.
10. Plaintiff avers that the 1^st defendant was convicted of the offence of negligent driving and was ordered to pay a fine of SCR 5,000.
11. That in the letters dated 6 February 2013 and 19 March 2013 sent to the Defendants and its insurance company, the Defendants failed, ignored, refused, or neglected to indemnify the Plaintiff SCR 772,805 without giving a lawful reason.
12. That in the circumstances, this Honourable Court ought to declare the 1^st and 2^nd defendants jointly and severally liable for the loss and damage sustained by the plaintiff. Moreover, it is prayed that this Court order and condemn the defendants to pay the plaintiff the sum of SCR 772.805 with interest at the legal rate as of 6 February 2013. Finally, the plaintiff prays for the costs of the suit.

1^st Defendant’s case

13. Owing to several Plaints being filed, the 1^st defendant duly represented by his counsel Mr Frank Elizabeth, is on record stating that the Statement of Defence filed on 15 November 2017 will be the defence of record (proceedings dated 30^th January 2019 at 11 am refers).
14. To begin, the 1^st Defendant raised two plea in limine litis. First, it that the abrogation agreement between the plaintiff and H. Savy Insurance Company is unlawful and cannot give the Plaintiff the locus standi in law to pursue this action against the 1^st Defendant. Second, it is that the Plaintiff has been paid in full and therefore cannot claim twice for the incident.
15. The defence put by the 1^st defendant on the merits denies any liability on his part for the loss and damage sustained by the plaintiff. It is denied that the 1^st defendant was negligent at the time of the accident whilst driving vehicle S15555. In respect of the averment made by the plaintiff concerning the criminal case and the 1^st defendant being found guilty of negligent driving, it is averred that the said matter had no unequivocal finding of negligent driving.
16. The 1^st defendant denies receiving any request referred to by the Plaintiff and further avers that he is not liable to the Plaintiff in law.
17. With the above, the 1^st defendant prays that this Honourable Court dismisses the plaint with costs.

2nd Defendant’s case

18. The 2^nd defendant duly represented at the time by its counsel Mr Kiran Shah, is on record stating that the 2^nd defendant will adopt the previous defence. This is to say, the statement of defence was filed on 22 November 2017.
19. It is averred that the plaintiff was properly paid and compensated for all its loss, damage, and prejudice by its insurer, under its comprehensive insurance cover. As such, the 2^nd defendant is not liable in any way or manner to the plaintiff. It is further averred that an order of this Court for payment as claimed by the plaintiff is tantamount to the plaintiff being paid twice for the same damage and the same would be contrary to law.
20. With the above, the 2^nd defendant prays that this honourable Court dismisses the plaint with costs.

Legal analysis and Discussion of evidence

Plea in limine litis

21. The 1^st defendant raised two points of law. First, it is that the ‘abrogation agreement’ between the plaintiff and its insurer is unlawful and cannot give the plaintiff the right to pursue the present action against the 1^st defendant. Second, the 1st defendant contends that given that the plaintiff has already been paid by its insurer, it cannot claim twice for the same incident. I also take note that this forms part of the statement of defence of the 2^nd defendant.
22. As a court of law, we are bound by the pleadings of the parties. The 1^st defendant refers to an abrogation agreement, but I believe this is meant to read ‘subrogation agreement’ because the former does not mean what counsel goes further to state in the statement of defence on behalf of the 1^st defendant.
23. Subrogation agreements are a common insurance practice. It is a fundamental principle in the law of insurance which Learned author Barbara Billingsley in a peer-reviewed article ‘Somersall, Subrogation and the Supreme Court: How the top Court's Ruling in Somersall v. Friedman undermines Insurance Law theory and practice’ in Alberta Law Review Vol. 40 (4) 2003, has explained at page 917 as follows:

“Generally, insurance coverage enables an insured to receive compensation for his or her loss without having to sue the party responsible for causing the loss (the wrongdoer). In exchange for providing this upfront compensation, the insurer gains the equitable right to subrogate against the wrongdoer - that is, to step into the shoes of the insured and sue the wrongdoer to recover some or all of the money paid out by the insurer to the insured.” (Footnote omitted)

24. To understand the principle of subrogation, one has to understand the context of insurance generally. As explained by learned author Billingsley, insurance coverage sees the insured compensated for any loss incurred. The insured, if I may be permitted to say so, need not get into the ‘inconvenience’ of pursuing legal action against the wrongdoer. Insurance is for the convenience of the insured to recoup all loss from the insurer, as opposed to moving the wheels of justice of the Courts against the wrongdoer. While the insured enjoys this convenience, the insurer gains the equitable right to sue the wrongdoer for the loss incurred by the insured.
25. In the present case, the insured is the party approaching this court seeking that the 1^st defendant (or in the alternative, both the 1^st and 2^nd Defendant) compensates for the loss incurred owing to an accident which they consider is attributable to the 1^st defendant. The subrogation agreement as referred to by the 1^st defendant would mean H. Savy Insurance Ltd would have been the plaintiff seeking to recover any loss incurred. There is nothing to suggest that in the present case, as per the plaint filed on 23 January 2019, a subrogation agreement was the basis on which the plaintiff proceeds per its plaint. On the plain reading of the plaint, the plaintiff alleges fault on part of the 1^st defendant or in the alternative, against both the 1^st and 2^nd defendants and seeks damages thereafter. I, therefore, find no merit in the first plea in limine by the 1^st defendant and it, therefore, fails accordingly.
26. The second plea in limine raised by the 1^st defendant is in respect of how the plaintiff cannot claim twice for the same incident. This is stated on the premise that the plaintiff has already been paid by its insurer, H. Savy Insurance Ltd.
27. In Morel v Simeon (CS 57 of 2012) [2018] SCSC 123 (11 February 2018), Twomey CJ refused to indemnify the plaintiff, who was claiming against the Defendant for fault due to a motor vehicle accident, because he had been previously paid by his employer before he was laid off because of his injury. In my view, this generally supports the notion that an injured person cannot claim twice as pleaded by the plaintiff.
28. However, I take cognisance of the circumstances of this case and in particular, the doctrine of cumul d’indemnites which would essentially run counter to the assertion of the 1^st defendant. In Sinon v Chang Leng 1974, SLR the Court took the view that “an injured party could claim compensation from the author of a “delict” irrespective of any claim he might have been paid by his insurance company”.
29. The Court in Ventigadoo v Government of Seychelles SCA (2007) SLR 236 stated that: “In our law, cumul d’indemnités operates in favour of the victim and not the tortfeasor. An injured party can claim compensation from the author of a delict irrespective of any payment he might receive from his insurance company or any other source.”
30. In qualifying the application of the doctrine of cumul d’ indemnités, Karunakaran J in Jacques v Property Management Corporation (2011) SLR 7 stated that the doctrine “shall not apply to the cases, where the claimant had already received compensation either directly from the tort-feasor (the author of a “délit”) or indirectly from the Insurance Company of the tort-feasor as has happened in the instant case.”
31. The above case law essentially means an injured party has the right to claim against the wrongdoer provided that they were not already compensated by the wrongdoer or the wrongdoer’s insurer. In the present case, the plaintiff has only been compensated by its insurer and not by the alleged wrongdoer or the insurer of the latter. In the circumstances, the plaintiff can rely on the doctrine of cumul d’indemnités and claim against the 1^st and 2^nd Defendants. Whether such a claim will be successful or not is a question that this Court will determine. Therefore the second plea in limine raised by the 1^st Defendant fails.

Merits of the case

32. It is my considered view that this matter revolves around fault supposedly on part of the 1^st defendant which in turn caused the accident and saw the plaintiff suffering loss as particularised in the amended plaint. The case against the 2^nd defendant appears to be pursued ‘in the alternative’. I state this on the premise that the plaintiff in paragraph [7] of its plaint avers that the 1^st defendant is ‘solely responsible’ for the accident. Following this, the plaintiff in paragraph [8] avers an alternative, which is later considered the responsibility of both the 1^st and 2^nd Defendant liable to make good to the plaintiff as per paragraph [9] of the plaint.
33. The point of departure is which law is applicable. In Constance v Grandcourt (CS 107 of 2014) [2016] SCSC 868 (10 November 2016) the Court stated at paragraph [20] that the applicable legal provisions in road traffic accidents are Articles 1382-1384 of the Civil Code. The Court in Constance drew on the plaint to determine which of these Articles was relied on to make a claim (paragraph [27] refers).
34. In the present case, the plaintiff states in paragraph [7] of its plaint that at the time of the collision, both vehicles were in operation but as a result of the 1^st defendant’s operation of vehicle S15555, the said collision occurred, and thus rendering the 1^st Defendant solely liable. The plaintiff emphasizes on ‘operation’ of the vehicle by the 1^st defendant. Therefore on the plain reading of the plaint, I find that fault under Article 1383 (2) applicable.
35. Article 1383 (2) states the following:

“The driver of a motor vehicle which, by reason of its operation, causes damage to persons or property shall be presumed to be at fault and shall accordingly be liable unless he can prove that the damage was solely due to the negligence of the injured party or the act of a third party or an act of God external to the operation or functioning of the vehicle. Vehicle defects, or the breaking or failure of its parts, shall not be considered as cases of an act of God.”

36. It has been accepted that Article 1383 (2) raises a strict liability (see Constance supra; Marie v Morel (187 of 2003) (187 of 2003) [2007] SCSC 24 (20 May 2007)). It is presumed that the driver, by operating the vehicle, has caused damage. Where the accident in question involves two vehicles, the Court in Jumaye v Government of Seychelles (1979) SLR 10 determined that the presumption is against both drivers. As such, both the driver of the plaintiff’s vehicle S19268, and the 1^st defendant is presumed to be liable. Moreover, the plaintiff need not prove anything beyond the injury suffered.
37. To support its case, the plaintiff averred that the conviction of the 1^st defendant on the charge of negligent driving shows that the collision was due to the latter’s operation of vehicle S15555. I note that in the defence provided by the 1^st defendant, he contends that the criminal conviction relied on by the plaintiff does not make a clear and unequivocally that the former was solely liable for the accident.
38. As our law provides under section 29 (1) of the Evidence Act, previous convictions are admissible in so far as it is relevant to the matter before the Court. Section 29 (2) of the Evidence Act further provides that a person is also taken to have committed the offence which has resulted in the conviction, unless the contrary is proven. Therefore the contention of the 1^st defendant that no finding was made as to negligent driving cannot stand. The fact is the 1^st defendant was convicted of an offence, and this Court is guided by section 29 (2) to take it that the 1^st defendant committed the offence.