Mousbe v Nancy (73 of 2004) [2009] SCSC 36 (30 June 2009);

Download: 

IN THE SUPREME COURT OF SEYCHELLES

 

MARIE–THERESE MOUSBE PLAINTIFF

VERSUS

WILLY NANCY DEFENDANT

Civil Side No 73 of 2004

 

Mr. France Bonte for the Plaintiff

Mr. Francis Chang Sam for the Defendant

 

JUDGMENT

Perera CJ

 

The plaintiff claims damages allegedly caused to her property by the defendant. The plaintiff is the owner of a house on Parcel No. S1966 situated at Anse Boileau. It is averred that in or about March 2003, the defendant, a Contractor, was constructing an access road at Cap Ste Marie, Grand Bois, Anse Boileau, and in the process caused damage to her flower garden. She claims Rs.5000/- for damage to the flowers, Rs.25,000 being costs for removal of red soil and Rs.35,000 as moral damages.

 

The defendant denies the claim, and avers that it was he who removed the red soil and that he was paid for that work directly by H. Savy Insurance Company, with whom, he, as a professional Contractor, had an Insurance Policy.

 

At the hearing, Learned Counsel for the defendant agreed, as a matter of fact, that the defendant was carrying out certain works on an access road, and that due to heavy rain, water and mud from the said road came down to the compound of the plaintiff.

 

The plaintiff testified that the mud and water that came down totally damaged all the plants and flowers in her garden. She produced three certificates received from the Ministry of Local Government, Sports and Culture under the National Home Beautification Competition. For the year 2001 she received the 2nd prize (P1), for 2002 she received the 6th prize (P2) and for 2003 she received the 2nd prize (P3). She also stated that she had qualified to participate in the April 2004 Competition, but due to the damage caused to the garden, her entry was cancelled. She also testified that the District Administrator and the Member of the National Assembly for Anse Boileau also visited the land to assess the damage. Two letters issued by them were itemized in the proceedings but were not made exhibits, as they were not formally produced through their makers.

 

The plaintiff stated that she was claiming Rs.25,000 on the basis that she could have won the 1st prize in that competition. She further stated that workers from the Local Government Ministry and also the men sent by the defendant did not remove the mud as they feared that they would get sick. Hence it was her husband, her children, and a neighbour who had to do it.

 

On being cross examined, the plaintiff stated that she claimed Rs25,000 for the loss from the Local Government Ministry, but that they were prepared to settle at Rs20,000. However as no serious attempt was made to pay compensation, that offer failed. She was not prepared to accept that amount now, and the defendant is also not willing to offer that amount.

 

Desire Mousbe, the husband of the plaintiff testified that when mud and water were flowing down, he informed the defendant. He sent two workers who fixed two planks and blocked them with three bags of red earth. However that same night, there was heavy rain, and water and mud broke the barriers and damaged all the plants in the garden except a palm tree. He stated that mud was removed by him, working up to 11-11 .30 p.m. on some nights. It took him about seven months to clean the entire garden.

 

Shown a photograph of the garden with grown trees, Mr. Mousbe stated that after cleaning the mud, he planted those grown trees which he obtained from his brother. He stated that that photograph was taken after the dead plants had been cleared and new grown plants were re planted.

 

Ms.Veronica Lalande, of Harry Savy Insurance Co Ltd, testified that the defendant a building Contractor was insured in a sum of Rs.500,000 for Public Liability. A third party claim made by the plaintiff was referred to the Indian Ocean Loss Adjusting Services (Sey) Ltd (IOLAS). She produced the “Abridged Report” dated 28th August 2003 (D2) wherein the loss adjuster had, inter alia stated,

As stated above, it is not possible to arrive at a precise extent of loss, we would suggest the following consideration.

 

  • Cost of removing mud (paid to insured) - Rs.2000

  • Credit for plants and manure (to be paid to Nursery) - Rs.1500

  • Labour of gardener to replant (to be paid to third party)

One gardener at Rs.150/day x 4 days - Rs. 600

  • Labour and materials to repaint earth line on structures

(to be paid to third party) - Rs. 400

Rs. 4500

 

Ms. Lalande also produced the “agreement of loss” dated 15th September 2003 (D1) wherein the defendant agreed to accept Rs.2000 from the Insurance Company. In that document, it was further stated that “the balance of costs, relating to remedial work in the garden will be settled directly with the third party Mrs. Mousbe”. Shown a letter dated 3rd September 2003 (D3) sent to the Loss Adjuster by Counsel for the plaintiff rejecting the offer and claiming Rs.30,000 as damages, the witness stated that upon payment of Rs.2000 to the defendant, there was no further payment due from the company.

 

The defendant testified that in March/April 2003, he was constructing a road at Cap Ste Marie for the Department of Community Development. That road was close to many houses, but the plaintiff’s house was close to the boundary. The road was 5 meters wide and 1 km long. He had to use an excavator. He admitted that rain water carried red earth down to the plaintiff’s garden. As regards the alleged damage, he stated that there was about 8-9 inches of thick red earth that had been washed down, but stated that he did not observe any damage to the plants. He was paid Rs.2000 by the Insurance Company and with the help of some persons from the District Administrator’s Office, and his own workers, the red soil was removed. He further stated the plaintiff’s garden was in a valley, and that hence, although a drain was temporarily constructed, the volume of rain water was so much and it overflowed to the plaintiff’s garden.

 

As was agreed by the parties, at the commencement of the case, the limited issue to be decided by Court is the extent of the damage and the quantum of compensation payable to the plaintiff. In this respect, a significant factor is that the plaintiff was maintaining her garden to enter the Annual Home Beautification Competition in which she had for the years 2001, 2002 and 2003 received prizes. Hence her garden could not have been an ordinary one maintained by someone in his or her leisure time. The plaintiff undoubtedly would have spent on manure, watering and on labour to keep her garden in a suitable state for the competition. Hence I do not find the sum of Rs.5000 claimed by her for damage to the flower plants to be excessive, and hence proceed to award that sum.

 

The sum of Rs.25,000 claimed for removal of soil is however excessive. The evidence disclosed that most of the red soil was removed by the defendant and his workers with assistance from persons of the District Administrator’s Office. The plaintiff’s husband also would have done some clearing after he returned from his own work in the evening. Hence taking all these matters into consideration I award a sum of Rs.2000, on the basis of Rs.200 each per day paid to two workers, working five full days.

 

The plaintiff would have understandably suffered mental pain, anxiety and disappointment consequent to her inability to take part in the 2004 Competition. Hence the amount of moral damages suffered by her should have been more than that suffered by an average person who maintains a garden for leisure. However, the sum of Rs35,000 claimed is excessive. I find that a sum of Rs.10,000 would adequately compensate her under that head of damages.

 

Accordingly, judgment is entered in favour of the plaintiff in a sum of Rs.17,000, together with interest and costs taxed on the Magistrates’ Court fees and costs.

 

 

……………………..

A.R. PERERA

CHIEF JUSTICE

(Pursuant to Article 132(3) of the Constitution)

 

Dated this 1st day of July 2009