Philoe and Another v Ernesta (17 of 2004) (17 of 2004) [2005] SCCA 22 (24 November 2005);


IN THE SEYCHELLES COURT OF APPEAL

Civil Appeal No. 17 of 2004


In the matter between


FRANCIS PHILOE First Appellant

AUBERGE CLUB DES SEYCHELLES Second Appellant


v.s


BRIAN ERNESTA Respondent

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Before: RAMODIBEDI P., BWANA JA., HODOUL.

Heard on: 18 November 2005

Judgment delivered on: 25 November 2005



Mr. B. Georges for the Appellants

Mr. W. Lucas for the Respondent


JUDGMENT


Ramodibedi P.,


[1] Following an undisputed flash of indiscretion on the part of two drivers on the night of 7 March 2000 a collision took place between two motor vehicles at a place described as a junction at Union Vale between English River and Victoria in Mahe. One of the motor vehicles in question, namely a taxi Registration Number S9644 belonged to the plaintiff (now Respondent) and was driven by him. The other motor vehicle, namely a bus Registration Number S2116 was driven by the first defendant in the court below (now First Appellant). It is not in dispute that the latter was acting in the course of his employment as a servant of the second defendant (now Second Appellant) in the court a quo. It is further not disputed that the latter is the lawful owner of the bus in question.


[2] As a result of the aforesaid collision, the Respondent sued the Appellants in the court below (Renaud J) for SR72,800.00 damages particularised as follows:


(a) Cost to repair the car SR 20,800.00

  1. Loss of earnings

(62 days x SR500 per day) SR 31,000.00

(c) Moral damages SR 15,000.00

(d) Costs for alternative transport SR 6,000.00

Total SR 72,800.00


[3] At the trial, the Respondent gave evidence in support of his own claim and did not call any witnesses. For their part, the Appellants neither gave evidence in support of their defence nor did they call any witnesses at all. The learned trial Judge granted judgment for the Respondent in the sum of SR46,800.00 less 15% for Respondent’s contributory negligence. This amount was split up as follows:-


  1. under claim (a) the learned trial Judge took into account the fact that the Respondent had no documentary proof of the cost of repairs. Hence he awarded 75% of the claim or SR15,6000.00.


  1. under claim (b) the learned Judge considered that the Respondent “did not have to actually work and sweat out for that amount.” Hence he awarded SR350.00 per day for 62 days = SR21,700.00 as a “fair and reasonable amount.”


  1. Under claim (c) an amount of SR8,000.00 was awarded to the Respondent.


  1. Under claim (d) the Respondent was awarded SR1500.00.


[4] The Respondent’s contributory negligence of 15% reduced his total award to a sum of SR39,780.00. The learned trial Judge duly ordered the Appellants to pay this sum with interest and costs to the Respondent jointly and severally, as I understand it, the one paying the other to be absolved.


[5] In this appeal, the Appellants rely on two grounds of appeal only, namely that:-


(a) The learned Trial Judge erred in finding the contribution of the plaintiff to the accident as being only 15%.


(b) The learned Trial Judge erred in awarding the sum of R15600 for repairs, and R21700 for loss of earnings in view of the total lack of any evidence of the cost of repairs occasioned to his vehicle and of the weak evidence of the quantum of earnings.”


It is thus evident that the Appellants do not dispute liability in the matter. On the contrary, their complaint is directed against quantum only, namely the Court a quo’s award in claims (a) and (b). There is no challenge to the award in claims (c) and (d).


[6] Before considering the Appellants’ complaints in some detail, it is necessary to examine the evidence which was led in the court below. As indicated above, the only witness called on the actual collision in question was the Respondent himself. In a nutshell, and to the extent material for the determination of this appeal, his evidence amounted to this. He is a taxi operator by profession. On the night of 7 March 2000 at about 10:05 p.m. he was driving his taxi Registration Number S9644 from English River going towards town. As he entered the main road, he heard the sound of a car braking and saw the Second Appellant’s motor vehicle Registration Number S2116 come sliding towards him at high speed. It was driven by the First Appellant. It then collided against his taxi on the right side causing damage to the windscreen, bonnet, right hand side door, the mudguard and the frames of the windscreen. The Respondent further testified that he subsequently had a meeting with the First Appellant and that the latter “accepted blame for the accident.” He, however, refused to put down an acknowledgement of liability in writing.


[7] Although the Respondent was unable to produce receipts for repairs to his taxi apparently on the ground that the garage which had effected the repairs had closed down, he did testify that the “garage and materials came around Sr.20.800/-.” It was never suggested to him that he was lying in that respect. Nor was he challenged on his version that his taxi took 62 days at the garage and that consequently he suffered damages at the rate of Rs500.00 per day.


[8] After seeing and hearing the Respondent, the learned trial Judge duly accepted his version. In his own words he put it this way:-


I find that he (plaintiff/Respondent) was truthful and candid hence I accept his testimony.”


More importantly, the learned trial Judge made a crucial finding that not only was the First Appellant driving at high speed but that the accident took place at the point where the Respondent’s taxi was “already within its lane.”


[9] In the absence of any evidence contradicting the Respondent’s version, I can find nothing wrong with the approach and findings of the learned trial Judge. After all it is a well-settled principle of law which hardly requires authority that an appellate court is very reluctant to interfere with findings of the trial court which depend upon credibility, as here. This is so because the trial court has the advantage of seeing and hearing the witnesses. It is thus in a better position than the appellate court in observing their demeanour and assessing what weight, if any, to attach to their evidence.


[10] Reverting to the Appellants’ grounds of appeal then, it is evident that the trial court’s assessment of the Respondent’s contributory negligence as being 15% only was based on the fact that the latter’s taxi was “already within its lane” as set out in paragraph [6] above. Thus properly considered, the facts speak for themselves that, at the very least, the First Appellant had the last opportunity to avoid the collision in question. But he failed to do so because he drove at high speed. Significantly, the correctness of the trial Court’s finding in this connection is not challenged on appeal. Its correctness, therefore, is beyond question. What this means then is that, but for the First Appellant’s excessive speed at the material time, the collision in question would not have occurred.


[11] As I understand it, the trial court’s finding that the Respondent was guilty of contributory negligence is merely based on the fact that he admittedly observed the First Appellant coming towards him at high speed and that he “should have exercised more caution and could have reasonably allowed the 1st defendant (now First Appellant) who was on the main road, to pass before he pulled across.”


In these circumstances, I am unable to come to the conclusion that the trial court was wrong to have assessed the Respondent’s contributory negligence at 15% only. The trial court had a judicial discretion to assess the extent of Respondent’s contributory negligence and it has not been suggested that it exercised such discretion improperly or for a wrong purpose. It follows that the Appellant’s first ground of appeal must fail.


[12] The Appellants’ second ground of appeal raises no real difficulty and can quickly be disposed of on two grounds:


First, and as was alluded to in paragraph [6] above, the Respondent gave uncontroverted evidence that the “garage and materials came around Sr.20,800/-.” Similarly he gave uncontroverted evidence that his taxi was out of business for 62 days at the rate of Rs500.00 per day. Although the Respondent could have made a stronger case by producing receipts, I am satisfied that his uncontroverted evidence amounted to prima facie proof of his claim. In this regard, it is, in my judgment, right to say that where a party has succeeded in adducing prima facie proof and the other party fails to lead countervailing evidence, the prima facie proof becomes conclusive proof.


Secondly, it must be said at the outset that as a general principle the assessment of damages is pre-eminently a matter within the discretion of the trial judge and an appellate court is accordingly reluctant to upset such assessment unless:


  1. there is a considerable disproportion in the quantum of damages awarded;

such damages have been awarded on an improper basis or for a wrong purpose.


Nor would this Court interfere merely because it would itself have arrived at a different assessment if it had tried the case at first instance.


Authorities in this regard are legion. See for example Flint v Lovell [1935]1 KB 354 at 360 where Green LJ said the following:-


I think it right to say that this court will be disinclined to reverse the finding of the trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”


In Davies v Powell Duffryn Associated Collieries, Ltd [1942] AC 601 at 616 – 617 (HL), Lord Wright put the principle succinctly in these terms:-


An appellate court is always reluctant to interfere with a finding of the trial judge on any question of fact, but it is particularly reluctant to interfere with a finding on damages which differs from an ordinary finding of fact in that it is generally much more a matter of speculation and estimate.”


Six years later in Bellenden v Satterthwaite [1948]1 ALL ER 343 at 345 Asquith L. J. said this:-


We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different conclusions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appellate body is entitled to interfere.”


Similarly, in Nance v British Columbia Electric Ry [1951] AC 601 at 613 Viscount Simon said the following:-


Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance.”


See also the judgment of this Court in Seychelles Broadcasting Corporation v Bernadette Barrado Civil Appeal Nos. 9/94 and 10/94 (unreported).


[13] It is indeed heartening to note that the learned trial Judge specifically took into account the provisions of Articles 1382 and 1383 of the Civil Code of Seychelles. These Articles in relevant parts provide as follows:-


1382 (1) Every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it.

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.

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1383 (1) Every person is liable for the damage it (sic) has caused not merely by his act, but also by his negligent or imprudence.


(2) The driver of a motor vehicle which, by reasons of its operations, 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.”


[14] Giving full weight to the aforegoing considerations, it follows that this appeal cannot succeed. It is accordingly dismissed with costs.


…..……………………………

M. M. RAMODIBEDI

PRESIDENT




…………………………………

S. J. BWANA

JUSTICE OF APPEAL




…………………………………..

J. M. HODOUL

JUSTICE OF APPEAL




Dated at Victoria, Mahe this 25th day of November 2005.