IN THE SEYCHELLES COURT OF APPEAL

[Coram: Domah J.A, Twomey J.A, Msoffe J.A]

Civil Appeal SCA 29/2012     

Appeal against Supreme Court decision CS 209/2012     

  Roch Nourrice    

versus

Francis Delorie

Heard:               5^th  December 2014         

Counsel:            Mr. Frank Elizabeth for Appellant

                          Mr. S. Rajasundaram for Respondent

Delivered:         12^th December 2014       

Msoffe, J.A

[1]   In Civil Suit No.209 of 2011 of the Supreme Court of Seychelles, the Respondent brought an action against the Appellant claiming a sum of Rs.2,500,000.  He contended that on or about the 12^th day of February he was retained by the Appellant to climb a “santol” tree to cut down its branches.  In the course of doing the job an accident occurred whereby he fell down and sustained loss and damage as follows:-

                        Pain and suffering ? Rs.900,000.00

                        Loss of enjoyment of life ? Rs.800,000.00

                        Loss of earnings ? Rs.500,000.00

                        Moral damages for distress and inconvenience ? Rs.300,000.00

                        Medical report ? Rs.200.00

[2]   He contended that the accident was caused by the fault and negligence of the Appellant or his servants and agents.  The particulars of fault and negligence were stated to be:-

1. He employed the plaintiff who was a minor at the time;
2. He failed to provide safety for the plaintiff;
3. He failed to supervise the plaintiff whilst he was on the tree;
4. He failed to give proper direction to the plaintiff whilst he was cutting the branches;
5. He failed in all the circumstances to take reasonable care for the safety of the plaintiff;
6. He was negligent or reckless in the circumstances of the case.

[3]  The Appellant denied the claim.  In his written statement of defence he admitted that the accident occurred but denied responsibility or liability for the same.  He denied employing the Respondent and averred that he had asked him for a small job and he told him to cut down a branch from a santol fruit tree on his property.

[4]  In his evidence the Respondent told the trial Supreme Court that on the said date he reported at about 7.00 a.m and the Appellant sharpened a machete for him and showed him the tree of which he was to cut off the branches.  He climbed the tree; held a branch with one hand and cut with the other hand.  He was standing on lower branches.  After cutting two branches he lost balance and fell to the ground.  He lost consciousness.

[5]  PW3 Terence Michel who was nearby, engaged in the same exercise, came to the Respondent’s rescue.  He called the Appellant.  The Respondent was taken to hospital where he was hospitalized for a couple of days.  The medical report (Exh. P1) is a detailed analysis of how the Respondent was attended to while in hospital and the injuries sustained in view of the accident in question.

[6]  At the close of the Respondent’s case the Appellant opted to make a submission of no case to answer and thereby forfeited his right to call evidence in the case.

[7]  In his Judgment the learned Chief Justice found the Appellant liable for the Respondent’s injuries, loss and damage.  He however, disallowed claims for loss of earnings and costs for the medical report.  He awarded Rs.1,000,000.00 for injuries and Rs.200,000.00 for moral damages. In total, he decreed a sum of Rs.1,200,000.00 in favour of the Respondent.

[8]  There are five grounds of appeal which read as follows:

“i.   The learned Judge erred in law when he delivered final judgment at the stage of a “no case to answer” submission.  The Appellant submits that the procedure adopted was erroneous in law.

ii.   The learned Judge erred in law when he failed to put the Appellant to his election at the “no case to answer” stage.

iii.  The learned Judge erred when he made a finding of employment of the Respondent by the Appellant on which he based liability.  The Appellant submits that at best the Respondent was an “Independent Contractor” but certainly not an employee of the Appellant being still at school at the time of the accident.

iv.  The learned Judge erred when the awarded damages in favour of the Appellant in sum of SCR1,200,000.00 since the awarded sum is manifestly excessive and was not supported by evidence.

v.    The learned Judge erred when he awarded SCR1,200,000.00 damages in favour of the Respondent since the same is manifestly excessive and has no basis in law or in fact the principle governing damages being “compensatory” and not “punitive”.”

[8]   Hence, on the basis of the above grounds the Appellant is praying that an order be made remitting the matter to the Supreme Court to be heard de novo before a differently constitutional Bench.

GROUNDS 1 and 2

[9]   In order to appreciate the gist of the complaints in grounds 1 an 2 it is instructive that we reproduce part of the proceedings of 19/7/2012 appearing at page 49 of the record before us, thus:-

“Mr. Raja:  No re-examination. As I have submitted to the Court my Lord I close my side.

Mr. Elizabeth:  Your Lordship the defence would not be calling any witnesses and the defendant be testifying but we’ll make a submission on no case to answer my Lord.

Mr. Raja:  My Lord suddenly my friend has got liberty to submit on no case to answer but we all be mindful that if at all he doesn’t succeed my Lord and certainly he would not be entitled to adduce any evidence.

Mr. Elizabeth:  My lord I’ve been at the bar for over 15 years and I (sic) certainly the procedure and that is why I took the risk and I know what I’m doing.

Court:  Of course it is perhaps just for my benefit.

Mr. Elizabeth:  I’m sorry my Lord.  My friend is right I will forfeit my right if my Lordship rules against me on the submission on no case to answer the procedure is that I forfeit my right to call nay (sic) evidence for the defendant.”

                                    [Our emphasis.]

[10]  It is trite law that a submission of “no case to answer” may be made in both criminal and civil trials.  In both cases, the rules are however different.  In a criminal case, at the close of the prosecution case, the defence may freely submit that the defence has no case to answer.  In a civil trial this has to be done with extreme care because the Judge may require counsel to “elect” upon a submission of no case to answer.  This means that unless counsel submits that he will stand by his submission and call no evidence if the Judge rules against him, the Judge will not entertain his submission ? see 24 Malaya Law Review 79 (1982) as per Velupillai, J.  Also as was stated by a Bench of three Judges in Bansal Hermant Govind Passad and Another v Central Bank of India [2003] 2 SLR 33, a “no case to answer” submission could be made where, by accepting the plaintiff’s evidence at its face value, no case could be established in law.  Alternatively, the submission could be made on the basis that the evidence led for the plaintiff was so unsatisfactory, or unreliable, that the Court should find that the burden of proof had not been discharged.

[10]  It is common ground that the Seychelles Code of Civil Procedure is silent on a submission of “no case to answer” in civil cases.  This being the case, we have to resort to English procedure viz section 7 of the Courts Act which provides:- 

In civil matters whenever the laws and rules of procedure applicable to the Supreme Court are silent, the procedure, rules and practice of the High Court of Justice in England shall be followed as far as practicable.

[11]  In England the practice of requiring counsel to elect before making the submission of “no case to answer” originated from the common law.  In the Supreme Court Practice 1979, Volume 1, page 571, under heading “No Case to Answer”, it is stated as follows:-

“As to the inconvenience of asking a Judge sitting alone to hold that there is no case to answer at the conclusion of the evidence of the party on whom the onus lies, see Alexander v Rayson (1936) 1 K.B. 169.  The Judge should generally refuse to rule on such a submission by the defendant unless he makes it clear that he does not intend to call evidence [Laurie v Raglan Co. (1942) 1 K.B. 152 CA] but the Judge is not bound so to refuse, and if he does not put the party to his election whether to call evidence or not, the latter retains his right to call it if his submission fails [Young v Rank (1950) 2 K.B. 510; Storey v Storey (1961) P.63 CA].  A submission of no case may be made either if no case has been established in law or the evidence led is so unsatisfactory or unreliable that the court should hold that the burden has not been discharged [ibid. and Yuill v. Yuill (1945) p. 15.]”

[12]  A number of Seychelles cases have dealt with the issue of “no case to answer” before.  Notable among these cases are Victor v Azemia [1977] SLR 195 and Public Utilities Corporation v Vista do Mar Ltd. [1999] SLR 77.  In Azemia (supra) the Court quoted with approval the Judgment of Lord Greene in Yuill v Yuill [1945] (supra) at page 15 that:-

The practice which has been laid down amounts to no more than a direction to the Judge to put counsel who desires to make a submission of no case to his election, and to refuse to rule unless counsel elects to call no evidence.  Where counsel has so elected he is, of course, bound, but if for any reason, be it through oversight or through a misapprehension as to the nature of counsel’s argument, the Judge does not put counsel to his election, and no election in fact takes place, counsel is entitled to call his evidence just as if he had never made the submission.

                                    [Our emphasis.]

[13] In Vista do Mar (supra) the Court went on to emphasize under part of item (iii) thereto that the failure to succeed on a “no case to answer” plea precludes the defendant from adducing evidence.

[14]  One point emerges, or rather, comes out very clearly from a close reading of the above authorities.  That is, once the defendant has made a submission of no case to answer it is irrevocable.

[15]  It is clear from page 49 (supra) of the record of proceedings that learned counsel for the Appellant was well aware of the implications of making the submission of “no case to answer”.  So, once he chose to rely on his submission of “no case to answer” and call no evidence, the learned Chief Justice was entitled to move to summary judgment, as was the case here.

GROUND 3

[16]  It is the Appellant’s contention in this ground that at best the Respondent was an “Independent Contractor” and not an employee, being still at school at the material time.

[17]   With respect, it is not fair to say that the Respondent was at best an independent contractor.  In common parlance it is envisaged that an “Independent Contractor” will be a specialized person who provides a contract for services.  That was not the case here.  The Respondent was a young man performing a contract of service so clearly employed.  At any rate, this point is being raised for the first time.  In his written statement of defence (D1) the Appellant did not suggest anywhere that the Respondent was an “Independent Contractor”.

[18]  In our own appreciation of the pleadings and the evidence on record, it is evident that under section 2 of the  Employment Act [Cap 69] the Respondent was a casual worker who was employed by the Appellant to do the job contracted to him to do on that day.  For all intents and purposes, this was a contract of employment in terms of section 19(1)(d) of the said Act and under section 25(1) thereto  and the contract was not required to be in writing.

[19]  Since there was a contract of employment between the parties the Appellant was duty bound in law to provide a safe system of work for the Respondent in line with the requirements set out under section 4 of the Occupational Safety and Health Decree, 1978, which provides:-

“4. (1)    It shall be the duty of every employer to ensure, in accordance with the Decree and any other written law, the health, safety and welfare at work of all his employees.

     (2)   Without prejudice to subsection (1) those duties include –

1. the provision and maintenance of plant and systems of work that are safe and without risks to health;

2. arrangement for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

3. the provision of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of his employees;

4. as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks;

5. the provision and maintenance of a working environment for his employees that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work;

6. the provision of protective equipment for his employees and training them to use such equipment.”

            [Our emphasis.]

GROUNDS 4 and 5

[20]   The main complaint arising from these grounds is that the damages awarded were excessive and punitive.  In the Appellant’s view, the main principle in awarding damages is that they ought to be compensatory and not punitive and that the learned trial Chief Justice ought to have been guided by this principle.

[21]  It is true that under French Law damages are compensatory and not punitive ? See Article 1149 of the Civil Code.  But there is no indication from the record that the damages were punitive.  The Court did not say anywhere that it was awarding punitive damages.  At any rate, learned counsel did not come up with any Judgment to show that the learned Judge’s assessment of damages was otherwise than fair and reasonable in the circumstances.

[22]  In an appeal such as this one, the principle has always been that the damages awarded by a trial Court can only be reversed on the ground that it was manifestly excessive only if the trial Court’s assessment was unreasonable and excessive.  In this case, there is no such evidence.  This is a young man paralyzed for life ? see Mousbe v Elizabeth [1993 ? 1994] SLA 207.  As a result of the paralysis the Respondent cannot lead an independent life.  His prospects of life were dimmed at an early age.  He cannot engage in a sexual relationship.  He cannot carry out bathroom functions in privacy without the assistance of someone, etc.

[23]  Another principle is that this Court would only interfere in the amount of damages awarded where it is satisfied that the trial Judge acted upon some wrong principle or that the amount awarded was so enormously high or was so small as to make it, in the Judgment of this Court, either manifestly excessive or manifestly inadequate ? see Ruiz v Borremans [unreported] SCA 22/1994.

[24]  In this case no principle was violated in assessing damages.  Therefore, there is no basis or justification for disturbing the amount of damages awarded to the Respondent.

[25]  In the event, for reasons stated, there is no merit in this appeal.  We hereby dismiss it with costs.

S. Domah                                            Mathilda Twomey                                  January Msoffe

Justice of Appeal                                Justice of Appeal                                   Justice of Appeal    

Signed, dated and delivered at Palais De Justice, Ile du Port on 12^th December 2014.