Seyswift Car Hire v Dubignon & Ors (CS 12 of 2020) [2023] SCSC 620 (10 August 2023)

DODIN J

1. The Plaintiff is a registered car hire business and owned a vehicle registration number S32228. The vehicle was rented out to the 4th Defendant and his father Jeven Julienne who were both authorised drivers. On the 21st April 2019, the 4th Defendant was driving the car from Victoria going towards Union Vale. As the 4th Defendant was turning right into the English River Clinic car park, another car coming from behind hit against the 4th Defendant’s vehicle, careering it in the wall. The driver of the second vehicle then rushed away into the night and did not report the accident. The 4th Defendant called his father who called the police and the car hire owner who came to the scene of the accident. Amongst the debris there was a broken number plate with the number S790 and it was missing a part. The 4th Defendant’s father made enquiries and was able to ascertain that the number was S7902, which was a car owned by the 2nd Defendant.
2. The Police also reviewed camera footage and isolated the part displaying the accident which was produced to Court. Three days after the accident, the police accompanied by the 4th Defendant’s father went to the 1st Defendant’s house at La Gogue where the car registration number S7902 was located. The 1st Defendant told the police that her son, the 2nd Defendant was driving the car at the time and had told her that he had hit a wall and the same day he had gone out fishing. It was one and a half weeks later that the 2nd Defendant reported to the police. The 2nd Defendant accepted liability and was advised by the police to go to the insurance company. The insurance company, SACOS, offered the Plaintiff the sum of SCR 84,000 which the Plaintiff refused. Subsequently, the 1st and 2nd Defendants changed their stance and denied liability for the accident.
3. The Plaintiff now claims the sum of SCR 245,210.00 being the value of the car; SCR 189,000.00 as lost revenue; the sum of SCR 50,000.00 as moral damage, making a total of SCR 484,210.00.
4. The 1st and 2nd Defendants counterclaims the sum of SCR 60,945.00 as reparation costs; and SCR 5,000.00 as moral damage.
5. After hearing the testimonies of the Plaintiff’s representative and her witness and the 1st, 2nd and 4th Defendants and their witnesses, the parties counsel made lengthy submissions in support of their respective cases.
6. The gist of the 1st and 2nd Defendants’ argument is that the accident was caused by the 4th Defendant who attempted an illegal right turn into the car park. Learned counsel submitted that had the 4th Defendant remained in the proper lane going north, the accident would not have occurred. Learned counsel submitted that the 1st Defendant was not involved in the accident and therefore is not subject to any liability for the accident.
7. Learned counsel also takes issue with the pleadings, arguing that the Plaintiff has failed to observe its obligations under S71(a) of the SCCP by failing to properly sight its own name. On the claims for damages, learned counsel submitted that the Plaintiff has failed to prove the damages incurred to its vehicle. On the other hand, Mr Augustin Desaubin, as an expert witness confirmed a report made by him, regarding the evaluation of the damages to vehicle S7902.
8. Learned counsel further submitted that despite Ms Pool trying to convince the Court that her vehicle would have been rented out every single day during that period, it is highly unlikely that this would have been the case. No business can have 100% occupancy all the time. Therefore, the claim for daily rental loss is exaggerated. Furthermore, since the vehicle was sold 3 months after the accident, the Plaintiff cannot claim loss of revenue beyond 3 months. Additionally, since the Plaintiff sold vehicle S32228 for the sum of SR 35,000, that sum should be deducted from any sums being claimed by the Plaintiff. In respect of moral damage, learned counsel submitted that owners of car rental are subjected to accidents all the time and therefore there is no basis for claiming moral damage. Learned counsel moved the Court to dismiss the claims against the 1st and 2nd Defendants.
9. Learned counsel for the 4th Defendant submitted that the 4th Defendant denies liability. The 3rd Defendant, an insurance company, has put up a defence both in limine and on the merits Should the Court find  that  the  point has merit   and  succeed, then  anything   that  the  3rd Defendant   has stated   in Court  or  in  its defence  on the  merits   should  be completely   disregarded as well as any evidence   given by any witnesses   relating   to  what   the  3rd   Defendant   may   have  said  regarding    the  case.
10. Learned counsel further submitted that the  evidence  of the  4th Defendant   and  his version  of the  accident   is consistent   with  and corroborates   circumstantial    evidence   given  in this  case.  It is definitely not consistent   with  the  version  of the  accident   as narrated   by the 2nd Defendant.  The Court  should  bear  in mind  the  fact  that  the  2nd Defendant   did  not  stop after  the  accident   and  drove  off, not  even  to  see if anyone  was  hurt,   and  the  fact  that   he admitted   that  he was  liable  for  the  accident  to the  police.  He eventually   comes up in Court with a lame excuse that  he was scared.  The Court  is invited  to also bear in mind  the  evidence of the  1st Defendant   and  how  she finally  admitted   in cross-examination    after  denying  it,  the fact  that  the  2nd Defendant   had  informed   her that  he ran  into  a wall.
11. Learned counsel further submitted that the 1st and  2nd Defendants  appear  to  be relying  on the  fact  that  the  4th Defendant   crossed a  white   line  to  turn   into   the   English   River  Clinic   and  therefore    this   was  unlawful and attribute   faute  for the  accident   on the  basis of this  act of the  4th    Defendant.  It is submitted that this is not a correct way of attributing   faute.  The faute must be the cause of the accident and damage and not just any unlawful act. Learned counsel submitted   that since it is the act of the 2nd Defendant   that caused the damage, fault for the accident must be attributed to  him solely.
12. Learned counsel for the Plaintiff referred the Court to article 1383 (2) of the Civil Code of Seychelles in support of his submission on liability. On vicarious liability of the 1st Defendant, learned counsel submitted that the 1st Defendant being the owner of the offending vehicle driven by the 2nd Defendant under her authorisation is vicariously liable. Learned counsel referred the Court to the case of Dr. Erna Athanasius Versus Hunt  Del Tel Company  (Pty)  Ltd & Gaetan  Pierre Civil Side No 293 Of 2002 in support of his submission. Learned counsel further submitted that the 1st Defendant in her testimony admitted that the 2nd Defendant was partly responsible for the accident.
13. Learned counsel submitted that the 1st and 2nd Defendants admitted certain averments of the Plaint, and contested some. Therefore learned counsel for the 1st and 2nd Defendants cannot  now  claim that the  Plaint or pleadings  are  unclear. The Plaint even after amendment to include the 4th Defendant was clear enough for the Court to determine the issues in contention and hence the arguments of unclear pleadings is immaterial. Learned counsel submitted that on a preponderance of  probabilities  and by  viewing  the  video  footage,  the   Plaintiff submits   that  the  fault of the 2nd Defendant  was the sole cause of the damages  to the vehicles.     
14. On quantum, learned counsel submitted that the very fact that an offer of SR 84,000.00  as admitted  by the 3rd Defendant  in its defence was made supports the claim for the damages to the vehicle S 32228. The retraction of the insurer, SACOS, was due to its knowledge  on the investigation concluded that both  drivers  were  liable  and  the  retraction   is  not  on  any  other  footing  including damages to the vehicle. Learned counsel submitted that the  car  damaged  in the  accident  belongs  to  a car  hire company and the 4th Defendant  hired the same.  The claim of SR189,000.00 is based on monthly  revenue  of SR 21,000.00  at the rate  of SR 700 per day  specially when  the vehicles  are on long term  contract  with the Plaintiffs  clients. The Plaintiff claims only for the period of loss of revenue for 9 months from the date of the accident. The value of the car as on the date of the accident  remains  SR 245,210.00. The fact of ascertaining moral  damages  in our jurisdiction is always  arbitrary   and given the situation  and the nature  of accident, the 2nd Defendant's  lack of good faith, the fact of the  Plaintiff  company's   loss  of a vehicle  would  make  it suffice that the Plaintiffs  claim moral  damages  in the sum of SR 50,000.00 which is justifiable  and highly reasonable.
15. On the counterclaim, learned counsel submitted that the counterclaim is not genuine. The 1st and 2nd Defendants did not make any claim until the Plaint had been filed against them. Learned counsel moved the Court to dismiss the counterclaim and to award  the claim of SR 484. 210.00 in favour of the Plaintiff against the 1st, 2nd and 4th Defendants jointly and severally.
16. Learned counsel for the 3rd Defendant maintained its plea in limine litis to the effect that there is no case against the 3rd Defendant. The plea reads as follows: “The third Defendant avers that by insuring a vehicle against third party risk, the contract of insurance is a contract of indemnity whereby its insured is indemnified for payment of damages that the insured would have to pay. It does not give the Plaintiff a cause of action to sue the 3rd Defendant for damages arising from an alleged delict its insured caused.” Learned counsel referred the Court to the cases of Rose v Ile du Port Handling Services & Ors CS 25/2022; Moustache v Guardian Royal Exchange [1980] SLR 87; Nourrice v Florentine & Rors CS 68/2016 [2019 SCSC 919; and Madeleine & Ors v H Savy Insurance CS 19/2015 SCSC 428 in support of it plea.
17. Learned counsel further submitted that under section 10(1) of the Motor Vehicles Insurance (Third Party Risk) Act, relationship and liability arises after judgment in respect of liability covered under the insurance policy has been given. In this case therefore it was wrong to include the SACOS as the 3rd Defendant.
18. Starting with the plea in limine litis, it is now settled law that an insurance company has a contractual relationship with its insured. Even considering the doctrine of privity of contract, it would be obvious that a person not a party to a contract, may not claim on the basis of a contract entered into exclusively between two parties except in very limited circumstances where the third party has been explicitly given the right to claim by the contracting parties. As rightly pointed out by learned counsel for the 3rd Defendant and with reference to the cases mentioned above, an insurance company is not involved in the act of its insured. It only undertakes to indemnify the insured under the insurance contract between the insured and the insurer. As such, it cannot be sued or made liable for the act of the insured.
19. I therefore find that there is no sustainable case against the 3rd Defendant. The plea in limine litis succeeds against the 3rd Defendant only and the claim made against the 3rd Defendant is dismissed accordingly.
20. On the propriety of the pleadings in relation to article 71 of the Seychelles Code of Civil Procedure, the 1st and 2nd Defendants maintain that certain details required by article 71 have been omitted by the Plaintiff, namely by not properly citing its own name and address. The principal purpose of article 71 of the SCCP is to ensure that the correct parties to a suit are identified and the issues to be determined by the Court are clearly set out so as not to cause confusion or prejudice to the litigants. Whilst in principle, such requirements of the law should be observed, any party not satisfied with the clarity of the pleadings should raise such concern or objection at the pleading stage. 
21. The evidence of Vivianne Pool clearly established the status of the Plaintiff as a registered business and hence has the legal personality to sue and be sued in its name. It was also clearly established that the said Vivianne Pool is a partner and joint owner of the business. No difficulty was ever brought to the attention of the Court with regards to service or exchange of documents and pleadings or in respect of the identity of the Plaintiff. This Court therefore finds that such technical issue although undesirable, is not to be fatal to the Plaint or to the real issues to be tried. The case can therefore be decided on the merits.
22. The evidence adduced has been well rehearsed by learned counsel for all the parties and I have summarised the same at the beginning of the judgment. Whilst I understand the Plaintiff’s and the 4th Defendant’s contention that the accident was caused by the 2nd Defendant who drove in the second outer incoming traffic lane and hit against the 4th Defendant’s vehicle as it was entering the car park on the right side of the road, I find great difficulty in rationalising the 1st and 2nd Defendants contention that the cause of the accident was attributable to the 4th Defendant for making an “illegal” right turn to enter the car park. It has never been illegal for a vehicle to cross the lane of incoming traffic either to overtake or to get to a road or parking on the right side of the road. In any event, even if the 4th Defendant was making a dangerous or somewhat “illegal” turn across oncoming traffic lanes, the duty of the 4th Defendant was to ensure that those lanes were clear of oncoming traffic.        
23. The evidence of the Plaintiff’s witness, Vivianne Pool, the police witness, Corporal Daniel Balthilde, the 4th Defendant and the 4th Defendant’s father, Jeven Julienne were very consistent and reliable. The evidence established that the 4th Defendant’s vehicle was travelling at a reasonable pace whilst the vehicle driven by the 2nd Defendant was moving at a high speed and hit the 4th Defendant’s vehicle as the 4th Defendant’s vehicle was crossing the two oncoming lanes to enter the English River Clinic parking. The 2nd Defendant’s vehicle was not only travelling at speed but was in the 2nd oncoming lane which indicates obvious disregard to traffic regulations and the fact that the 4th Defendant’s vehicle which was ahead was engaged in a right turn into a car park.  
24. On the other hand, the testimonies of the 1st and 2nd Defendants were inconsistent and I dare say unbelievable. The 2nd Defendant testified that it was the 4th Defendant who was at fault because it was for the driver of the vehicle ahead to look out for vehicles coming behind before undertaking any manoeuvre which the 4th Defendant failed to do. The 1st Defendant also testified to the same conviction. The 2nd Defendant could not give a credible explanation for leaving the scene of the accident or not reporting to the police other than he panicked. It is obvious from the testimonies and demeanour of the 1st and 2nd Defendants that the 1st Defendant knew that the 2nd Defendant was involved in an accident and was at fault and neither took any step to report the accident and tried to hide the vehicle and the 2nd Defendant.
25. I therefore conclude that the accident was a result of the 2nd Defendant’s recklessness and if the 2nd Defendant’s evidence is actually what he believes, the accident was caused by the sheer lack of knowledge of or regard to proper road usage and regulations. Consequently, I find the 2nd Defendant solely responsible for causing the accident. As such I also find the counterclaim of the 1st and 2nd Defendants to be not sustainable and is dismissed. I also therefore dismiss the claim against the 4th Defendant accordingly.
26. In respect to the 1st Defendant, the issue is whether she is vicariously liable for the act of the 2nd Defendant. Generally, the owner of a vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his agent provided the driver was using the car primarily for the purpose of performing a task for the owner.  In this case, the 1st Defendant admitted that the car S7902 that was being driven by the 2nd Defendant belong to her and that she had authorised the 2nd Defendant to use the car that day although neither the 1st nor 2nd Defendant testified to the purpose for which the car was being driven by the 2nd Defendant.
27. The case of Athanasius v Hunt Deltel (Pty) Limited & Anor (supras) determined that an employer is vicariously liable for the act of its employee who is an authorised agent of the company. In Panorama Developments (Guildford) Limited v Fidelis Furnishing Fabrics Limited [1971] 2 QB 711, a company secretary fraudulently hired cars for his own use without the knowledge of the managing director. A company secretary routinely enters into contracts in the company's name and has administrative responsibilities that would give apparent authority to hire cars. Hence, the company was made liable.
28. In this case, I am satisfied that the 1st Defendant authorised the 2nd Defendant to drive her car to go on an errand and there is no evidence that the 2nd Defendant was on a frolic of his own. This falls within the concept of vicarious liability. Hence the 1st Defendant is found to be vicariously liable for the accident caused by the 2nd Defendant’s negligence. I therefore hold the 1st and 2nd Defendants jointly and severally liable to the Plaintiff for the loss and damages resulting from the accident.
29. On the aspect of quantum, the evidence showed that the vehicle had been recently acquired and at the time of the accident it was valued at SR 245,210.00. The vehicle could not be repaired and was sold for scrap at SCR 35,000.00. I therefore agree with learned counsel for the 1st and 2nd Defendants that the sum of SCR 35, 000.00 must be deducted as money already realised from the value of the vehicle. On that heading therefore, I award the Plaintiff the sum of SCR 210,210.00.
30. In respect of loss of business profits, the Plaintiff claims the sum of SCR 189,000.00 claiming a rate of SCR 21,000.00 per month for 9 months. However, the evidence showed that the S32228 was sold 3 months after the accident. The Plaintiff did not bring any evidence that the vehicle could not have been replaced for 9 months. I therefore agree with learned counsel for the 1st and 2nd Defendant that the claim for loss of revenue is highly inflated and is not supported by the facts of the case. I find that the Plaintiff had a duty to mitigate its loss as soon as it was determined that the vehicle could not be repaired. I consider 2 months to be a reasonable period for the Plaintiff to acquire a replacement if the business was as successful as she has made out in her pleadings and testimony. I therefore award the Plaintiff a sum of SCR 42,000.00 as loss of income for two months.
31. In respect of moral damage, I take cognisance of the fact that the Plaintiff is a business, a legal person and not a natural person. As a general rule it makes sense that a legal entity is not entitled to moral damages because, not being a natural person, it cannot experience physical suffering or such sentiments as wounded feelings, serious anxiety, mental anguish and moral shock. The exception to this rule is where the corporation has a good reputation that is debased, resulting in its social and public embarrassment. Learned counsel for the Plaintiff seems to be arguing that the loss of the vehicle and revenue and lack of good faith by the Defendants justify a claim for moral damage. I find that losing a vehicle in an accident is a hazard of the business of car rental. Secondly, loss of revenue and value of the car has already been claimed. Thirdly the Plaintiff did not bring any evidence to establish that the business has as a result of the accident suffered loss of face or loss of trust or credibility by its clients or prospective clients. I do not therefore find the claim for moral damage justified.
32. Consequently, I enter judgment in favour of the Plaintiff in the sum of SCR 252,210.00 (Seychelles Rupees Two hundred and Fifty-Two Thousand Two Hundred and Ten) for which the 1st and 2nd Defendants are jointly and severally liable.        
33. I award costs to the Plaintiff against the 1st and 2nd Defendants only.

Signed, dated and delivered at Ile du Port on 10th August 2023.

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C G Dodin

Judge