Public Utilities Corporation v Elisa (20 of 2009) [2011] SCCA 36 (02 September 2011);

 

PUBLIC UTILITIES CORPORATION v ELISA

 

(2011) SLR 277

 

 

W Herminie for the appellant

A Derjaques for the respondent

 

Before MacGregor P, Domah, Twomey JJ 

 

Judgment delivered on 2 September 2011 by MacGregor P

 

The appellant is a public body established for the purposes of providing potable water to consumers in Seychelles.  The respondent is a consumer. He sued the Corporation for providing sub-standard water to him for the period March 2005 up to 15 May 2005.  His case is that the Corporation by law is a public body for which consumers pay rates duly assessed by metre and that there is a provision in the law that the water supplied for public use should be treated water but that in breach of all these obligations, the Corporation failed to abide by the standard required by law: ie the Public Health (WaterExamination) Regulations 1994 (SI of 1994).

 

The water, as per his complaint, was severely contaminated, discoloured, odorous and contained sediments of an unknown nature.  He made repeated representations to the office of the appellant which included visits.  But his public grievance fell on deaf ears.  He claimed damages for the prejudice he suffered as a result.  He claimed R200 for emptying and washing the water tank, R3,000 for loss of two loads of clothes spoilt by the contaminated water, R3,500 for loss of a washing machine and R40,000 for moral damages for distress, inconvenience, stress, humiliation and disappointment.

 

After an exchange of particulars and pleadings, the appellant filed its defence.  It raised the plea of Act of God(also known as 'force majeure' in French law) as the event which led to the substandard service was outside the control of the Corporation.  In evidence it would advance the argument that it was the effect of EI Nino.

 

The case before the Supreme Court was to be heard on 25 May 2006 but suffered a number of false starts to take off only on 20 September 2007 when the plaintiff was heard together with two of his witnesses.  When the case came for continuation on 23 November 2007, it was put to 22 February 2008.  It is on this latter hearing date that the appellant moved to amend the defence in limine to the effect that the action was time barred in law and could not be maintained against the Corporation by virtue of section 18(2) and 18(3) of the Public Corporation Act (the Act).

 

As the case had already been part heard and the disposal of the plea in limine litis was dealt with, this judgment is on the merits.  The Judge dismissed the plea in limine by an imaginative interpretation of section 18(2) and 18(3) of the Act on the basis that: (a) the provision of the law should be read contra proferentem; (b) the wording was not mandatory for the giving of a notice if the circumstances showed, as they did in this case that the Corporation was fully  “au fait" with the tribulations of the respondent and (c) that the defence of statutory notice not having been given was being taken too late in the day: that is almost 3 years after the receipt of the plaint.

 

On appeal, we were specifically invited to state the law as to the interpretation that should be given to section 18 of the Act.

 

Section 18 of the Act is worded in absolute terms.  The time limit for bringing an action against the Corporation is 9 months.  It provides:

 

(1)  No action shall be brought against the Corporation to recover damages or compensation in respect of any act or omission of the Corporation after the expiry of 9 months after the cause of action accrued.

 

By a judgment of this Court dated 26 April 2011, this Court extensively went into the merits of the plea in limine, the application of s18 in this case, and concluded by upholding the judgment of the Court below on this point.

 

On the remaining grounds of appeal, the appellant essentially relied on the defence and argument, that the material incident in this case was an act of God and that they were not negligent.

 

The respondent for his part relies on being a party to a contract as a consumer and the appellant as the supplier of water by virtue of the PUC (Water Supply) Regulations 1988 and the Public Health (Water Examination) Regulations 1994 (SI of 1994) and that the appellant was under a statutory obligation to provide treated water to him.The appellant failed to supply the respondent with treated water for his consumption.  He also pleaded that the appellant supplied him with severely contaminated water which was not at the legally required standard, severely discoloured, odorous and containing sediments of an unknown nature. He further pleaded that by reason of those alleged pleadings he has been put to loss and damage as claimed.

 

The facts show that during the material times between 3 months from March to May 2005 the respondent repeatedly received sub-standard water supplied by the appellant, that he complained at least 10 times to remedy his problem, 6 times to the appellant company, 2 times at Ministry of Health, and once to NATCOF, the National Consumers Forum and once to the Seychelles' Bureau of Standards.

 

This state of affairs is reflected in the feelings of the respondent by undisputed testimony in his words saying, at page 19 of the record -

 

Question; what did you feel on 17March?

Answer; cannot feel happy when I see dirty water from my tap, the most important substance for a human being is water.  The water was filthy, and when you wake up in the morning for a cup of tea, the water was dirty and I was not happy about.

 

At page 28 and 29 of the record -

 

Question: Those approximately those seven weeks, how did you feel?

Answer:I was desperate and did not know what to do and it was not within my power to solve this problem.  Everywhere I went. I just get different stories, the water is clean, boil it; it was inconvenience and I find another inconvenience and frustrated.

Question: How did your family react?

Answer.Constant quarrel, the wife cannot do the washing and was thinking that the water will come up and mess the clothes again.

Question: Before firing this case, did PUC ever come to apologize, did you get report?

Answer: No.

Question: You stated about five of their officers visited you but there was no official response at all?

Answer: No. There was a time when Mr. Nicette came and again he stressed that we get a rebate on our next bin and he even offered to give us help to dean our water tank, this never happened.

 

The response of the appellant on record appears to be a mixture of some Iimited attention at times, lack of empathy, indifference and stubbornly changing to a claim that matters were beyond their control.

 

An illustration of this is seen on the record of proceedings at page 99 where their Managing Director, says in answers to questions;

 

Question; Do you agree therefore with the Bureau of Standards when the expert said that he would not give that water to his son to drink.  Will you accept such a statement?

Answer.If there were no other water, I will advise this person to boil this water before drinking.

Question: Do you accept during that three months the PUC was not supplying      to the consumer water fit for consumption?

Answer.There was problem at the time.

 

On the act of God argument, article 1148 of the Civil Code comes into play, namely that PUC is presumed liable for damages for failure to perform its obligation unless it can prove that the damage was the result of;

 

(i)            force majeure (Act of God)

(ii)          the act of the plaintiff himself or

(iii)         a “cause etrangere” which was normally unforeseeable so that the damage was unavoidable and could not be imputed to him (act of a third party).

 

The appellant is claiming in this case that it is not liable to the respondent for damages because of the EI Nino phenomenon which he blames for the discoloration in the water.

 

For the operation of an act of God three criteria must all be present: l’exteriorité l’imprevisibilité et l’irresistibilité (an inevitable. unpredictable act of nature, not dependent on the act ofman). See Jurisprudence General Dalloz. Codes Annotés.

 

It may have been possible to argue an act of God were it not for the fact that it is well known that EI Nino is now a periodic worldwide climatic phenomenon (and therefore not unpredictable).  Further French jurisprudence has clearly established that the consequences of the act of God must be those that preclude the person with the obligation from acting otherwise than the way he acted in the circumstances.  Hence the Court can consider what a reasonable and prudent man in the same situation would have done.

 

It is unreasonable that anyone solely in charge of treated water supply, in fact the national state supplier, would first of all have taken so long to act (3 months) or the manner in which it acted and allowed the victim to endure numerous complaints, and being bandied about numerous times and places to determine tests.  The necessary duty of care owed by the supplier (the appellant) to the consumer (the respondent) was in our view below the expected standard of care.

 

An illustration of force majeure was highlighted in the Cour de Cassation, (Chambre Civile 2, Audience Publique du 12 decembre 2002, No de pourvoi: 98-19111), where it was held “que l’evenement exterieur” (in this case torrential rain) which caused the abundance of water was an external act and exceptional but not one that could not be foreseen. By parallel the same can be said of EI Nino.

 

On the facts and law cited an application in this case argument/defence of force majeure does not succeed.

 

We believe also that the statutory obligation of PUC particularly as the national supplier of water, carries with it a duty and standard of care in respect of which we find they failed.

 

In the circumstances ofthis case we are also mindful of the constitutional right of a citizen to a right to a safe environment, as set out in article 38(a) of the Constitution particularly in the words -

 

The State recognizes the right of every person to live in, and enjoy a clean, healthy and ecological balanced environment with a view to ensuring the effective realization of this right the State undertakes ;

(a) to take measure to promote the protection, preservation and improvement of the environment;

 

Seychelles enjoys and prides itself locally and internationally in its respect for the protection, preservation and improvement of the environment.

 

Incidents like this damage that credibility and go against the protection, preservation and improvement of the environment.

 

We note a certain evolution of our laws on the environment of which a major component is water, its availability, management and cleanliness since the PUC Act of 1984, as follows:

 

1988   -           PUC (Water Supply) Regulation (SI 26/88)

1993   -           Article 38 in the Constitution

1994   -           The Environment Protection Act

1994   -           Public Health (Water Examination) Regulations (SI 44/94)

1997   -          The Environment Protection Act it particular its part III  entitled  the Prevention, Control and Abatement of Environmental Pollution.

 

The operative word here in the latter is the word abatement. In its the section 7 the Act specifically refers to water quality, management and protection of surface water.  What does it reflect but a society more and more conscious of its environment and the major benefactor of it the consumer.

 

In the circumstances, all the grounds of appeal fail and the appeal is dismissed with costs.