IN THE SEYCHELLES COURT OF APPEAL

[Coram:     A. Fernando (J.A) , M. Twomey (J.A), F. Robinson (J.A) .

Civil Appeal SCA 36/2016

(Appeal from Supreme Court Decision CS 35/2012)

Civil Construction Company Limited

Appellant

Versus

Frederick Leon

Celine Accouche

Sedrick Leon

Sebastien Leon

Reuben Leon

Leroy Leon

1st Respondent

2nd Respondent

3rd Respondent

4th Respondent

5th Respondent

6th Respondent  

Heard:             07 December 2018

Counsel:          Ms. Edith Wong and Mr. Francis Chang Sam for Appellant  

                        Mr.Anthony Derjacques for Respondent 

Delivered:       14 December 2018

JUDGMENT

M. Twomey (J.A)

Background to the Appeal

[1] The Appellant, a company registered in Seychelles, was engaged in quarry works at Cap Samy, Praslin and the Respondents were at the time a family of two adults and four minor children living in close proximity to the quarry. The Respondents entered a plaint in which they claimed that they were inhabitants of a house and property owned by the 1st Respondent and that as a result of the Appellant’s quarrying works suffered loss and damage. We reproduce at length some of the pleadings in the Plaint filed in the court a quo as they are relevant in our consideration of this present appeal .

[2] The Respondents averred that the acts of the Appellant, “through its employees, servants, and agents constitute a faute in law for which the Appellant was vicariously liable” to the Respondent. They particularised the Appellant’s faute as follows:

1.   Failing to carry out an Environmental Impact Assessment Plan prior to the commencement of the quarry project.

2.   Failing to consult the community in any meaningful manner.

3.   Blasting the terrain and granite surface areas in proximity to the Plaintiff’s properties and residence.

4.   Extracting and crushing granite boulders in proximity to the said properties.

5.   Causing dust and noise pollution on Respondents’ property.

6.   Causing pollution through activity including personal, transportation and habitation (sic).

7.   Causing fright and alarm upon use of explosives.

8.   Causing pollution through fuel and heavy machinery emissions.

9.   Causing shock waves and vibrations upon the usage of explosives, heavy equipment and machinery.

10. Causing cracks to the Plaintiff’s houses.

[3] They further averred that they had been put to loss and damage for which the Appellant was liable in law to them. The damages were particularised as follows:

1.   Repairs, labour and materials to repair cracked walls (house)      SR277,500.00

2.   Repairs, labour and material to House 2                                       SR 1,055,000.00

3.   Loss of value to property                                                            SR 6, 023,800.00

4.   Moral damages for stress, inconvenience, anxiety, psychological harm, distress, fright for a.  1st Plaintiff                                                                         SR50,000

    b. 2nd Plaintiff                                                                      SR 50,000

    c. 3rd Plaintiff                                                                       SR 50,000

    d. 4th Plaintiff                                                                       SR 50,000

    e. 5th Plaintiff                                                                       SR 50,000

    f. 6th Plaintiff                                                                        SR 50,000       

                   5. Special damages for constant colds, flues (sic) coughs

                       and ill health of Plaintiffs                                                                     SR 100,000

          They therefore prayed for a total of SR 7,7 706.300 and a mandatory injunction ordering the Defendants to immediately cease their works.                                                        

The Evidence at Trial

[4] At the trial, the first two Respondents and the Sixth Respondent testified. The First Respondent stated that he purchased land in 1989 and built two houses thereon; the first of which was completed in 1990. There is no evidence as to when the second house was built but the First Respondent testified that it took five years to complete and there is documentary evidence that planning approval was given for the house in July 1999.

[5] The First Respondent, a pastry chef by profession, admitted that no engineers were involved in the construction of either house. The first was built by a licensed mason, the second by a mason with his help. The quarry became fully operational in 2009 with rock blasting, extraction and rock crushing for aggregate and dust. Lorries travelled back and forth to the quarry to transport the materials. This caused dust, noise pollution and vibrations from the quarry. He testified that all this caused the walls and floors of his two houses to suffer cracks.

[6]  The Second Respondent lives with the First Respondent. She stated that the house they occupy is about 150 meters from the quarry. She testified that since 2006 she would hear explosions and the breaking of boulders from the quarry. This caused cracks to the house they occupied and created dust which affected her health and that of her children. She had to bring them to the doctor and they had to use nebulisers. The dust affected the furniture in the house. She stated that she first noticed the cracks in 2007 and they were repaired but then occurred again in 2008. She stated that from the time the second house was being built until 2004 she was living with her children at her mother’s house at Anse Boudin.

[7] Two “expert” witnesses were called by the Respondents. Cecile Bastille, a quantity surveyor valued the damage to “House No 1” at SR227, 500 and to “House No. 2” at SR1, 055, 00. Her report considered that the presence of the quarry had depreciated the market value of the property. She valued the property at SR2, 997,000. She also stated in her report that in the absence of the quarry, the market value of the property would be SR 9,020,800. The evidence given was confused and unsubstantiated. When pressed about the basis used for her calculations she said she was not going to provide a reply.  

[8] Mr. David Port Louis, a civil engineer, visited the houses and reported on their structural state. He found cracks in the houses as he did in other houses in the area.   He explained that he used the British standard guide lines for ground borne vibrations. He admitted, however, that he did not measure the vibration from the blasts and took his client’s word regarding the severity of the blasts. In his conclusion he states “the blasting is more probably contributing to the cracks that occurred on the residential houses” (sic). He also opined that “ground borne vibrations cause indirect effect on the comfort of living of the local residence” (sic) and that “human are also affected by vibrations” (sic). In his testimony he accepted that he did not know how often blasting took place and did not check buildings in the quarry site for cracks. He did not know the type of blasting in operation and the number of charges used.

[9] The Sixth Respondent, aged 16 at the time he testified in 2013, stated that the blasting and machinery disturbed the peace they used to enjoy. He said the blasting which he sometimes heard “made his heart stop.” He admitted that could not state how often the explosions occurred but could hear them once or twice a day even.” He stated that he had sinus problems because of the dust but admitted that there was not so much dust of late. He also admitted sneaking into the quarry site with his friend.

[10]          The Appellant called Mr. Sunny Khan, its managing director. The Appellant obtained a lease from the Government in 2000 to operate a quarry at Cap Samy. In the beginning, the company operated with a small machine excavating rocks. They subsequently cleared the site and relocated two families who were in the vicinity of the quarry proper. An Environmental Impact Assessment was carried out in 2009 by Mr. Louis Barbé. Meetings about the impact of the quarry were held with local residents. The house vacated by one of the families which was relocated was still there and used as an office. Evidence was brought that this house had no cracks. Nor were there any cracks in the abattoir which was also situated in the quarry. Mr. Marie operated a chicken farm situated closer to the quarry than the Respondents’ house. He had no complaints. Mr. Khan stated that the measurements taken indicated that vibrations were kept low, as were noise and dust. The machine for testing vibrations only became operational in 2012.

[11]          Mr. Nigel Valentin, a quantity surveyor, also prepared a valuation report. He found major cracks on the older, smaller house. He stated that he noticed that part of that house was built on a glacis (a rock outcrop) and the other part on back-fill retained by a wall. He stated that the material used in construction were blocks made with gravel. He found more cracking on the side of the house built on softer soil. In his report, he concluded that it would not be economical to perform remedial works on the older house and valued the house at its current market value of SR 538, 713.09. He estimated that the newer house could have its minor defects repaired at the cost of SR39, 675.00.

[12]          Mr. Louis Barbé performed the Environmental Impact Assessment of the quarry in 2009. As part of the scoping exercise a public meeting was held. The Respondents did not attend the meeting. Mitigation measures including the suppression of dust and noise and hard surfacing the road which he proposed were implemented. He also monitored the vibrations at all the Appellant’s quarries. He demonstrated the operation of a seismograph which was calibrated in Canada annually. A measurement was done at Mr. Leon’s house in his presence and the vibration recorded was 1.02 mm per second.  He stated that blasting at the quarry only took place once every two or three months. He stated that the Respondents’ house was about 400 metres from the blast site.

[13]          Mr. Anel Marie, a chicken farmer operating next to the quarry also testified. He had built his house before the quarry was operational. His house was closer to the quarry than that of the Respondents. He stated that he always got prior warnings of blasts. He had no problem with dust. He stated that there was no blasting at all in 2009. His chickens were not affected by the quarry’s operations.

[14]          Mr. Martin Lewis, an employee of CCCL testified that the office on site only had “wear and tear” cracks.  A water tower situated in the quarry site had no cracks. The office at the quarry gate also had no cracks although it was built in 2010. He described all the mechanisms in operation to suppress dust and noise from the quarry.

[15]          Mr. Thomas Marie, the master blaster also testified. Although there was no instrument to measure vibrations until 2012, the standard and type of blasting was the same. He stated that blasting takes place every two to three months.

[16]          Mr. Andre Low Nam, a structural engineer with training in construction designed to withstand seismic activity, also testified. He measured the vibration from the test blast. The peak particle velocity (PPV) was 1.02 mm per second. He observed cracks to the Respondents’ two houses. He stated that cracks could be formed for “various reasons and blasting [was] one of them.” The vibration as measured would cause minimal cosmetic damage but not structural damage, which would only occur if the PPV reached 50mm per second. His report states that cosmetic damage would occur when PPV reaches 15mm per second. He visited other houses nearer the quarry where vibration would be higher and they had no cracks. He stated that one of the Respondents’ houses was partly built on a glacis which is a very hard material and the other part on man-made material. If the latter was not compacted properly the house on it was bound to settle. The soft part would settle first after rain as opposed to the part of the house resting on the glacis and this would cause cracks. This happened when a house was not built on homogenous material. The second house had almost no cracks as it sat on homogeneous material.  He admitted that he did not have records of measurements for blasts that had taken place prior to 2013.

[17]          No medical or further evidence was brought by the Respondents regarding the injury to their health.

The Supreme Court Decision

[18]          In a decision delivered on 30 November 2016, the learned trial judge found that the cracks could have been caused by multiple causes. He found that:

“ground vibrations arising from blasting, heavy traffic or the running of heavy machinery could cause or contribute to the cracks in the [Respondents’] house. But so could faulty workmanship, faulty or inferior materials, or ground conditions upon which the houses were built that could cause uneven settlement.”

[19]          He then relied on English tort’s “but for test” and the “efficient proximate cause test” in Davies v Swan Motors Co (Swansea) Ltd [1949] 2. C. B 291 and found that the vibrations materially increased the risk of the cracks appearing. The Respondents had built their houses at a time when it could not be foreseen that there would be quarry in the area.  Hence, the Appellant’s acts constituted the primary cause for the damage. He found that the necessary causal link had been established and that it was sufficiently proximate to the damage caused.  He went further in finding a duty of care under Lord Atkins “neighbour principle” in Donoghue v Stevenson (1932) AC 562 by one’s acts or omissions.  He relied on another English authority, namely Caparo Industries v Dickman (1990) 2 AC 605 to find that the Respondents should have reasonably foreseen the effects of their works and since their negligence had been established, liability followed for all the consequences which were the direct outcome of it.

[20]          He rejected the claim for ‘special damage’ as there was no proof to authenticate their claim for ill health. He also refused to grant the injunction.

[21]          He found that the claim for moral damages (stress, inconvenience, anxiety, psychological harm, distress and fright) “remained unproven” and that the inconveniences they claimed to experience “were minimal if not none at all…their claim remains unproven”. He nonetheless granted each Respondent “a nominal sum of SR 10, 000”.

[22]          As for the claim for loss of value to property he granted them SR 300, 000 being 10% of the estimated depreciation. In terms of the cost of repairs to the house, he took into account the age of the house and the fact that they would have had to be maintained in any case and awarded 50% of the sum claimed in the newer house, that is SR 113, 750 and 25% for the sum claimed in the older house, that is, SR 263,750.

The Appeal

[23]          It  is from this  judgment that the Appellant has appealed on the following summarised grounds:

1.    The learned trial judge erred in applying English law in finding that the Appellant owed the Respondents a duty of care and neglecting to take into consideration the evidence adduced to show that vibrations from the blasting could not have cause cracks in the houses.

2.    The learned trial judge erred in law in finding the Appellant negligent in failing to carry out tests on the blasting site to ascertain how much shock the houses in the area could withstand.

3.    The learned trial judge erred in law in his assessment of damages.

4.    The learned trial judge erred in law in awarding the 3rd to 6th Plaintiffs damages as they had no standing to appear on their own as parties to the claim.

Ground 1- applicability of English law

[24]            Learned Counsel for the Appellant, Ms. Wong has submitted that this Court has in Nanon & Anor v Ministry of Health Services [2015] SCCA 47 (17 December 2015) and the Supreme Court in Octobre v Government of Seychelles SCSC 941 (25 November 2016) reiterated that the Seychellois law of delict is based on French law and that English principles and authorities have no application. The learned trial judge therefore erred by relying on English tortious principles and authorities to find the Appellant liable.  

[25]            Learned Counsel for the Respondents, Mr. Derjacques in response has submitted that the Seychellois legal system is a mixed jurisdiction composed of common law and civil law and that overlaps are therefore inevitable. In his words “the judge [has] a discretion to apply English and common law case law in reaching a decision in [any] given case.” He relied on my own book on the matter as support for the matter.

[26]          We believe that Learned Counsel for the Respondents, has misconstrued the source on which he seeks to rely. While Seychelles is a mixed jurisdiction, the mixing concerns the fact that our bodies of law stem from different sources – our public law except to the extent that it is amended by the Constitution and statute is based on the common law and our private law is based on French civil law. Our rules of procedure including evidence is largely based on English law. Our legal system is mixed in the sense that it contains aspects of both these sources. However, individual areas of law remain distinct from each other. To suggest that there is mixing within a particular field of our legal system would undermine the coherency of that area of law. For example, there can be no mixing of French law inquisitorial principles in the field of criminal law except through specific legislation. Nor would it be appropriate to introduce English principles of consent in contract into our interpretation of the Civil Code.

[27]          Although it is trite, we are minded to repeat that our laws relating to delict are contained in five Articles of the Civil Code (Articles 1382-1386). That Civil Code is derived from and to a large extent translated directly from the French Civil Code. We have developed our own jurisprudence but often refer to authorities or doctrinal writings from other civilist traditions such as Mauritius or France when we lack local jurisprudence on a particular issues. These jurisdictions have almost identical Civil Codes and therefore the underlying doctrines are the same. They are therefore better persuasive sources than legal systems from countries that do not share the same underlying doctrines.

[28]          The principles of delict in French law or tort in English law are starkly contrasted. In English law, liability for negligence generally depends on the existence of a duty of care, a breach of this duty, and causation. The duty is based on foreseeable damage, relational proximity and the fairness and reasonableness of imposing a duty to act as a reasonable man. This duty (the neighbour principle) has evolved from Lord Atkins’ observations in the landmark case of Donoghue v Stevenson (supra) in which he posed the question:  

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour?  The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question”.

[29]          Furthermore, in English law there is a restriction placed on the type of breach of duty that is recognised as giving rise to a tort. These include trespass, negligence, nuisance.

[30]          In contrast, French law makes no reference to the concept of a “duty” in order to establish liability. Unlike tort law, the law of delict is not hampered by the burden of proving a specific duty of care. This is because Articles 1382 and 1383 of our Civil Code do not contain any limitations as to the class of protected (proximate) persons. In other words, under our law, as in the French law of delict, there is no limitation which might arise from the necessity to prove the existence of a duty of care towards the plaintiff. Every plaintiff who can prove fault, damage and causation can claim compensation. Furthermore, there is no restriction in delict on the type of faute (fault) which may give rise to liability. 

[31]          From this point of view, we cannot emphasize enough that our delict law is very different from English tort law, in that it does not impose any limitations on the kind of action under which liability arises or on the group of persons that are protected and can benefit from compensation arising from injury caused by another person’s fault.  

[32]          While the common law bases tortious liability on unlawfulness, negligence and fault, liability in French law is generally based on the single concept of fault. The classical theory of French law is that fault (faute) is a necessary condition of civil liability. Articles 1382 and 1383 set out the general causes in which fault may be attributed to the actor. The provisions of Article 1382 clearly state the three elements necessary to establish delictual liability: fault, damage and causality. Liability of a defendant under Article 1382 can however be absolved totally or partially. This is the case where there is an act exterior to the actions of the defendant or by reason of the acts of the victim. It is in these circumstances that doctrinal writings have emerged on the two divergent theories submitted to us by Learned Counsel for the Appellant Ms Wong: l’équivalence des conditions or la causalité adequate. This discussion would have been relevant if the case had been brought under Article 1382.

[33]          However, in the present case, it is not entirely clear to us whether the action was brought under Article 1382 or 1384 (3). The Appellant has submitted that it is brought under Article 1382. When the question was put to Learned Counsel for the Respondents Mr. Derjacques he said it was a mixture of Articles 1382 and 1384(3). That cannot be so. Our uncertainty arises from the fact that paragraph 7 of the Respondents’ pleading, which we have reproduced at paragraph 2 above, avers quite clearly that the acts of the Appellant, “through its employees, servants, and agents constitute a faute in law for which the [Appellant] was vicariously liable” to the Respondent. (Emphasis added.)

[34]          It is important to know under which provision a delictual action is brought because the burden of proof is different for each of these provisions.  As we have stated, the wording of Article 1382 clearly shows that three elements are necessary to engage liability:  a fault, a damage and a causal link between the two. The burden of proof of all these elements falls on the claimant.

[35]          In contrast Article 1384 provides that:

“1. A person is liable not only for the damage he has caused by his own act but also for the damage caused by the act of persons for whom he is responsible, or by things in his custody.”  

[36]          The Cour de Cassation held in its famous Jand’heur v. Les Galeries Belfortaises, judgment of 13 fevr. 1930, Cass. ch. reun.D.1930.1.57, that the first sentence of Article 1384 constitutes the legal basis of a general and autonomous strict liability for all things. Jand’heur was followed in Seychelles in the case of Attorney General rep. Government of Seychelles v Jumaye (1978-1982) SCAR 348. Lalouette JA in Jumaye stated that in France, liability under Article 1384 is not based on faute (fault) but on “objective liability independent of faute”.

[37]          Hence, in such cases the victim of the damage must allege and establish only the causal role of la chose (the thing) by which the damage has occurred. Otherwise he benefits from a presumption of causality (responsibility) by the custodian although the custodian of the thing may be exonerated fully or partially if he can show that there existed natural events (e.g. vis major), the intervening act of a third party or the act of the victim himself.

[38]          It is clear, therefore, that the burden of proof in Article 1382 and Article 1384 is different. The claimant must only prove that the thing caused him damage or an injury under Article 1384. Under that Article the person who is the “custodian” of the “thing” is liable unless he can prove liability by an act exterior to the “thing” in his custody. “Custody” is defined by case law as “powers of use, control and management of the thing” (see Cass. Ch Reunies 2 December 1941).

[39]          With regard to the present case the distinctions we have highlighted between a case grounded in Article 1382 and one on 1384 are stark. While a case under Article 1382 requires the proof of all three elements (fault, causation and damage) by the claimant, one brought under Article 1384 only requires the proof of the damage. The burden of proof would have shifted to the Appellants to show that the cracks and other damage suffered was not as result of the acts of things in their custody act but as  a result of natural events (e.g. vis major), the intervening act of a third party or the act of the victim himself (see Jumaye (supra) See also Dalloz, Encyclopédie de Droit Civil, Verbo Responsbilité du Fait des Choses  Inanimés (2nd edn, Paris 1951-1955)104, Henri Mazeaud, Louis Mazeaud and André Tunc, Traité Théorique  Et Pratique De La Responsabilité Civile Delictuelle Et Contractuelle, Tôme 1 (6th edn, Montchrestien 1965)  405-08).

[40]          Further, Article 1384 (3) provides that masters and employers are strictly liable for the damage caused by their servants and employees acting in the scope of their employment. There is therefore a presumption of fault on the part of employers for the acts of their employees. However, in this case, the Respondents have failed to show at any point that there were any acts by the Appellants employees, servants or agents which would attract the strict liability of the Appellant. We therefore cannot see how this case as pleaded could be brought under Article 1384(3). Furthermore, as the Appellant is a company, an action under Article 1382 would not have been appropriate.

[41]          The Respondents’ pleadings do not support an action under either article. The plaint and its particulars must clearly disclose whether direct or vicarious liability is being alleged.

[42]          In the case of Confait v Mathurin (1995) SCAR 203, the Court of Appeal found that parties are bound by their pleadings, the purpose of which is to give notice of its case to the other party. The Court went on to state that:

“Where a party claims damages against another for damage caused him by an act, he must state in his pleading where the damage is caused by the act of the other person himself or by the act of a person for whom he responsible. By Article 1384 of the Civil Code a person is responsible for the damage which is caused by his own act or by the act of persons for whom he responsible. The cases in which one person must answer for the acts of another are specified…where  a party avers that the liability is based on the act of the other party himself, he should not set up a case at the trial based on liability for the act of a person for whom he is responsible. Where the case of the plaintiff is that the defendant is sued for the act of a person for whom the defendant is responsible, the plaintiff must aver by his pleadings and prove the relationship which gives rise to such liability unless such is admitted.”

[43]          Similarly to Confait, the learned trial judge in the present case imposed liability on the Appellant by its fault in operating the quarry. However, it is clear from the pleadings that the fault is attributed to acts of the Appellant, through its employees, servants and/or agents. The acts of these persons were never pleaded, established or proved and therefore the Appellant could not have been held liable. Ours being an adversarial system of civil justice it was not necessary for the court to explore the circumstances in which the Appellant was liable. This finding alone is sufficient to allow the appeal. Out of respect for Counsel the other submissions made in respect of grounds 3 and 4 are now also considered.  

Ground 3 – the assessment and award of damages.

[44]          Our Civil Code contains provisions specifying the type of damage recoverable in delict namely, damages for injury, loss of rights to personality, pain and suffering, aesthetic loss and the loss of any of the amenities of life (see Article 1149 (2). Jurisprudence has classified these damages under material damages and moral damages. In Barbé v Laurence (unreported) CS 118/2013, the Court explained that there are in effect three types of damages in cases of delictual harm: corporal damage, material damage and moral damage. In explaining the differences between those three different heads of damages the court stated: 

“The corporal damage or injury is the bodily injury caused to the victim… In some cases it can be the death of a person. These damages are meant to compensate for the diminution in the enjoyment of life of the victim. It includes the physical pain and suffering of the victim.

The material damage can be the destruction of things caused by the delict but also economic damage brought about by the inability of the victim to work or make a living. 

The moral damage reflects the moral and/or psychological suffering, pain, trauma and anguish suffered by the victim as a result of the delict.”

[45]          It is therefore necessary to claim damages under these heads exclusively. The learned trial judge did not find any proof of corporal damage, that is what the Respondents called special damages for colds, flus etc.

[46]          The material damage would have been the cost of the repair of the houses if liability would have been proven under either Article. In the present case the Learned Judge appeared to take for granted that there was liability and proceeded to a discussion of quantum. However, for the reasons given above we are not of the view that liability was proven under either of the available provisions of the Civil Code. Despite the technical difficulties of the pleadings, the evidence adduced was in any case not sufficient to prove liability.

[47]          With regard to the moral damage, which comprises all types of psychological pain granted under one head only, the Learned Judge, having found that their claim was not proven, grants each of the respondents “a nominal sum of SR10,000”. No justification for this finding was given. The concept of nominal damages is simply not part of our law of delict and does not arise. The learned Judge was incorrect to develop our law in this way without any justification. No damages could be granted given the fact that liability had not been proven.  

Ground 4 – standing of minors

[48]          Respondents 3 to 6 were minors at the time the suit was filed. They had no capacity to sue in their own right given the provisions of Article 450 (1) of the Civil Code. As in the case of Rose and others vs Civil Construction Company Limited [2014] SCCA 2 (11 April 2014), there was no representative action taken on their behalf. Either of the parents of the minor children would be entitled to sue in a representative capacity as the guardians of the children under section 73 of the Seychelles Civil Procedure Code. However, the plaint should have stated that representative status, and it did not.

[49]          In In Re Tottenham v. Tottenham. [1896] 1 Ch. 628A, in a case where a creditor sued a testatrix stating in the last paragraph of his pleadings that he was suing on behalf of all the other creditors of the deceased, the court found that this fact ought to appear in the title of the statement of claim, and not merely in the body thereof, otherwise it would be of no use to show the representative capacity in which he sued. The rule followed by the court in that case (Order 6 and rule 3 of the UK Supreme Court Rules) is akin to section 73 of the Seychelles Code of Civil Procedure.

[50]          In the present case, the plaint was therefore wrongly brought on behalf of the minor children, the Third to Sixth Respondents. We therefore uphold this ground of appeal

[51]          The cases referred to by Mr. Derjacques with regard to the court condoning mistakes in procedures to achieve the ends of justice can be distinguished from the present suit. The oft quoted statement by Domah JA that “…procedure is the hand-maid of justice and should not be made to become the mistress” in  Ablyazov v Outen & Ors [2015] SCCA 23 concerned a suit started by petition instead of by plaint. Similarly for the cases of Mary Quilindo and Ors v Sandra Moncherry and Anor (unreported) SCA 29 of 2009 and Toomany and Anor v Veerasamy [2012] UKPC 13). They have no bearing on the present appeal.

[52]          There must be a limit as to how far the court in the name of justice should make a case for the plaintiff. Ours is an adversarial legal system and judges are not advocates for the parties. We cannot engage in this exercise. 

[53]          We therefore allow the appeal.

M. Twomey (J.A)

I concur:.                                ………………….                                           F. Robinson (J.A)

Signed, dated and delivered at Palais de Justice, Ile du Port on 14 December 2018

A. Fernando (J.A)

1.  The Appellant has appealed against the judgment of the Supreme Court in favour of the Respondents (then Plaintiffs) as against the Appellant (then Defendant) whereby the Appellant had been ordered to pay the Respondents the total sum of SR 737,500.00 (Respondents had claimed SR 7,706,300.00 in their Plaint) with interest at the legal rate and costs of the action. A breakdown of the amount awarded is as follows:

i.   Repairs, labour and materials to repair cracked walls in House No.1 – SR 113,750(Respondents had claimed SR 227,500.00 under this head in their Plaint),

ii.  Repairs, labour and materials to House No.2 – SR  263,750.00 (Respondents had claimed SR 1,055,000.00 under this head in their Plaint),

iii. Loss of value of property – SR 300,000.00(Respondents had claimed SR6,023,800.00 under this head in their Plaint),

iv. Moral damages for stress, inconvenience, anxiety, psychological harm, distress, fright for the 1st to 6th Respondents – a nominal sum of SR 10,000.00 for each of the Respondents, making a total of SR 60,000.00 (Respondents had claimed SR 50,000.00 each making a total sum of SR 300,000.00  under this head in their Plaint).

2.  The Respondents had filed action against the Appellant for damage caused to their two houses as a result of the activities in relation to the quarry works of the Appellant at ‘Cap Samy Praslin Quarry’ which involved extraction of granite boulders by blasting the terrain and granite surface, causing shock waves and vibrations by the usage of explosives, the use of heavy equipment and machinery in areas in proximity to the Respondents properties and residence, mass transportation in and out of the said quarry which resulted in causing cracks to their houses; crushing of the said boulders causing dust and noise pollution on Respondents property, and causing pollution through fuel and heavy machinery emissions. It had been the Respondents position that “the said acts of the Appellant, through its employees, servants and agents, constituted a faute in law for which the Defendant is vicariously liable in law to the Plaintiffs”. This case was therefore based on articles 1382(2) read with articles 1383(1) and 1384(1) of the Civil Code of Seychelles Act. The Appellant had stated in its Written Submissions filed before the Trial Court: “This case falls under article 1382 of the Civil Code.”

3.  Article 1382(2) states: “Fault is an error of conduct which would not have been committed by a prudent person in the special circumstances in which the damage was caused. It may be the result of a positive act or an omission.”

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

Article 1384(1) states: “A person is liable for the damage that he has caused by his own act but also for the damage caused by the act of persons for whom he is responsible or by things in his custody.”

‘Fault’ is an error of conduct which may be the result of a positive act or omission. Although ‘fault’ is an amorphous term, French courts have given it content. According to Ripert, Note, D.P. [1907] 1. 385, it has been professed that the word ‘fault’, in the context of interferences with the use and enjoyment of land, describes (i) acts intended to harm another, or (ii) acts that are harmful to another and arise out of negligence or imprudence imputable to the actor, or (iii) acts merely harmful to another if the harm is greater than ought to be tolerated (fault by implication). In my view liability for damage arising from blasting work in a quarry can only be avoided by provingthat the damage was solely due to the fault of the other party or by the act of a third party or by an act of God external to the operation or functioning of the quarry.

4.  The Respondent’s Defence was one of a denial of the averments in the Plaint pertaining to the damage to the Appellants houses as a result of its activities. All that the Appellant had averred in its Defence is that it had obtained the permission of the Government to start quarry activities at Cap Samy on Praslin and had started certain activities in June 2002. The Appellant had also averred that it started a full quarry operation on the site at the beginning of 2010 after an Environment Impact Assessment (EIA) had been carried out sometime in August 2009.

5.  The Appellant had filed the following grounds of appeal:

By way of relief the Appellant had sought for an order allowing the appeal and quashing the judgment of the learned judge in its entirety and to award costs to the Appellant.

6.  The Appellant complains that the learned Trial Judge “erred in looking to English law authorities to determine causation instead of French law on causation.”It has been its submission that “the principle is that French law applies to delict and therefore it is to French law that the Learned Judge ought to have looked at when considering the principles of faute.”I find this statement to be a misconception of the Seychelles legal system. A. G. Chloros in his book ‘Codification in a Mixed Jurisdiction, The Civil and Commercial Law of Seychelles, Introduction and Texts [1977] states: “Clearly, the Civil Code of Seychelles cannot be properly understood without some knowledge of the principles and techniques of the Common law. Equally, a Common lawyer without some knowledge of the principles and techniques of codified systems will be ill-equipped to grasp fully the operation of the Civil Law of Seychelles. It is for this reason that the law of Seychelles may be described as a system of mixed jurisdiction.”Mathilda Twomey in her book ‘Legal Metissage in a Micro-Jurisdiction: The Mixing of Common Law and Civil law in Seychelles’ [2017] states: “The double colonisation of Seychelles, together with the lack of an indigenous people or culture, combined to create a mixed jurisdiction of civilian and common law traditions. The inherited laws from two successive colonial administrations, namely France and Great Britain, the former, civilian in tradition and the latter of the common law tradition, have left deep imprints, the components of which have either survived intact or have melded into an amalgamation of laws from both traditions.”The use of English terminology from common law of tort, such as ‘prudent person’[in article 1382(2) of the Civil Code of Seychelles Act] and ‘voluntary assumption of risk’[in article 1382(5) of the Civil Code of Seychelles Act] shows this metissage. 

7.  According to the Appellant’s submission in its Skeleton Heads of Argument, French law on causation recognizes two theories, namely:

a)  ‘l’equivalence des conditions' -  that all conditions which could have caused the damage are equal and therefore all conditions are taken to have caused the damage and

b)  ‘la causalite adequate’ -  the different events are separate and it is required of the Judge to make a determination as to the more probable cause of the damage and this would require him to use an expert to establish causation, where the matter is not obvious.

8.  The English authorities of McGhee V National Coal Board [1972] 3 AER 1008;Barker V Corus [2006] UKHL 20; and Davies V Swan Motor Co (Swansea) Ltd [1949] 2 CB 291 cited by the learned Trial Judge of which the Appellant is complaining about, is in line with the theory of ‘l’equivalence des conditions'. In Barker V Corus Lord Hoffman had said: “...there is no reason why your liability should be reduced because someone else also caused the same harm.” And Lord Denning in Davies V Swan Motor Co (Swansea) Ltd stated: “...the efficiency of causes does not depend on their proximity in point of time. It is enough that the cause forms part of a chain of events which has in fact led to the injury.” The Appellant in complaining that the learned Trial Judge looked to English law authorities to determine causation instead of French law on causation, has overlooked the provisions of article 5(2) of the Civil Code of Seychelles Act which states: “Nothing in this Act shall invalidate any principle of jurisprudence of civil law or inhibit the application thereof in Seychelles except to the extent that it is inconsistent with the Civil Code of Seychelles.” The Appellant has failed to show how the above referred to principles of English civil law jurisprudence is ‘inconsistent with the Civil Code of Seychelles’. I am reminded of the words of Roscoe Pound in ‘The Call for a Realist Jurisprudence’ [1931] 44 Harvard Law Review 697,711: “But in the house of jurisprudence there are many mansions. There is more than enough room for all of us and more than enough work.”

9.  It is the Appellant’s submission that had the learned Trial Judge applied the theory of l’equivalence des conditions, he should have taken into consideration that there were other conditions such as poor workmanship in building the houses, and the fact the houses had been built on different strata (one of the houses was constructed on a glacis and partly manmade backfield materials); which could be attributed to the damage caused to the Respondents houses and therefore “there ought to have been a finding against the Respondents as well”, namely, since all conditions are equal “the Respondents were also responsible for the damage caused”. This is a statement by the Appellant that the Respondents are also liable on the basis of contributory negligence. Contributory negligence is an affirmative defence [Spriggins V Broadmoor Esso Service Center, 263 So.2d 365 as reported in Louisana Civil Law Treaties, by F. F. Stone (1977) Vol 12] and should have been specifically pleaded by the Appellant in their Defence. In Boulle V Mohun [1933] M.R. 242the Court held that contributory negligence should be first raised as an issue in the pleadings before the Court may pronounce itself thereon. Also see the cases of Tirant v Banane 1977 SCA 219; Therese Sophola v Antoine Desaubin SCA 13 of 1987; Andy Confait v Sonny Mathurin SCA 39 of 1994; Equator Hotel v Minister of Employment and Social Affairs SCA 8 of 1997; Georges Verlacque v Government of Seychelles SCA 8 of 2000; Kevin Barbe v Jules Hoareau SCA 5 of 2001; Etienne Gill v James Gill SCA 4 of 2004 and Vandagne Plant Hire Ltd VS Camille [SCA 03/2013] 2015, SCCA 17.Section 75 of the Seychelles Code of Civil Procedure states: “The statement of Defence must contain a clear and distinct statement of the material facts on which the defendant relies to meet the claim…”In Marie-Ange Pirame V Armano Peri SCA 16 of 2015this Court said: “Evidence outside the pleadings although not objected to and relief not pleaded for, cannot and does not have the effect of translating the said issues into the pleadings or evidence.”

10.         It is also the Appellant’s submission had the learned Trial Judge applied the theory ‘la causalite adequate’; he ought to have considered the expert evidence available before him, including the blasting report, which was provided by the Appellant.

11.         It had been the Appellant’s position that the damage to the Respondents houses resulted from building on different strata and was not due to the blasting. The Appellant finds support for its argument by claiming in its Skeleton Heads that “the yellow house and the other structures inside the compound of the Appellant and Mr. Erikson Anael Marie’s house which is slightly further away but which are all much closer to the blasting site than the Respondent’s house did not suffer damage.” I wish to state that this argument is misconceived as it strays away from the main issue, namely is there clear expert evidence to show on a balance of probabilities that the Respondents houses would have suffered the cracks even if the quarry was not there. One must not lose track of the fact that all houses in a given area are not built at the same time, with the same type of material, with the same type of workmanship and that they are all built on the same type of floor surface, especially in the Seychelles, where the terrain differs from one place to another. Therefore unless there is clear expert evidence that even without the Appellant’s actions, the cracks would still have occurred; the liability of the Appellant would still remain under both theories, namely ‘l’equivalence des conditions' and  ‘la causalite adequate’. Once the Respondents on a balance of probabilities established that the damage to their houses was a result of the activities in relation to the quarry works of the Appellant at ‘Cap Samy Praslin Quarry’, I am of the view that the burden shifted to the Appellant to prove if it was otherwise, namely, that the Respondents houses would have suffered the cracks even if the quarry was not there. But as stated at paragraph 9 above it was not pleaded in the Defence that damage to the Respondents houses resulted from building on different strata, faulty workmanship or faulty or inferior materials.

12.         I am also in agreement with the learned Trial Judge when he stated: “It must also be remembered that when the 1st Plaintiff (1st Respondent) originally constructed his houses he did so based on the standard prevailing at the time and in the circumstances that then existed. It was not incumbent on him to have foreseen that in the future there will be blasting going on in the area therefore he had to construct his house to withstand vibrations caused by the rock blasting and quarrying”.

13.         The Appellant’s submission as referred to at paragraph 9 above, namely that “there ought to have been a finding against the Respondents as well”, namely, since all conditions are equal “the Respondents were also responsible for the damage caused” is in conflict with the Appellant’s submission at paragraph 11 above that the actions of the Appellant could not have been the cause of the damage.

14.         The Appellant relied on the judgment of this Court in Francois Rose and 4 others VS Civil Construction Company Limited SCA 26 of 2012 of which I too was a member in seeking to interpret article 1382(1) of the Seychelles Civil Code. Having reconsidered the matter I now tend to disagree with the opinion expressed therein concerning the interpretation of article 1382(1) of the Seychelles Civil Code. Article 1382(1) states as follows: “Every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it”. This Court did state in Francois Rose that “The operative word in this context is causes.” and endorsed the view of the Trial Judge in that case where he had stated that “It is not enough for the plaintiff to show that the defendant’s acts could be one of several possibilities that could have caused the damage he or she has suffered. The defendant’s acts must be the cause of the damage.” I am now of the view that in interpreting article 1382(1) one has also to consider alongside the word “causes” the words: “Every act whatever of man” and “by whose fault it occurs” which is in line with the theory of ‘l’equivalence des conditions', which the Appellant itself had placed reliance on, as stated at paragraph9 above.

15.         The learned Trial Judge has made the following findings in law: “The most important and the most contested issue is whether the works that were going on at the quarry carried out by the Defendants on their property solely caused or contributorily caused the damages (cracks) to the Plaintiffs; two houses.”The learned Trial Judge had also stated, “Where there are multiple causes, the claimant does not have to prove that the Defendant’s breach of duty was the main cause of the damage provided that it materially contributed to the damage. It may be sufficient for the claimant to show that the Defendant’s breach of duty made the risk of damage more probable”. He had made these findings having also considered the following factors. “No doubt it is possible that ground vibrations arising from blasting, heavy traffic, or the running of heavy machinery could cause or contribute to the cracks in the Plaintiff’s houses. But so could faulty workmanship, faulty or inferior materials, or ground conditions upon which the houses were built that could cause uneven settlement.”

16.         I am in agreement with the learned Trial Judge’s statement: “The Plaintiffs had lived on their property for more than 25 years and in 2010, 1st Plaintiff made his complaint to the site manager at that time. I find it hard to fathom that after 25 years the houses began to crumble due to poor workmanship etc. Hence, I find on the evidence and conclude that there exists the necessary causal link and proximity between the acts of the Defendants and the damage caused to the Plaintiffs’ property. I hold the view that the vibrations caused by blasting and movement of heavy machinery contributed materially to the damages…”.This pronouncement is in accordance with the theory of ‘la causalite adequate’ for it had been obvious to the learned Trial Judge that the more probable cause of the damage to Plaintiffs’ houses was as a result of ground vibrations arising from blasting, heavy traffic, or the running of heavy machinery. In my view the 1st Respondent’s evidence, in accordance to the theory of ‘la causalite adequate’, that the cracks started to appear in their houses only after the quarry started its operations and that after about 20-25 years after the houses had been built makes it obvious that it was the vibrations caused by blasting and movement of heavy machinery that contributed materially to the damages. That in my view was sufficient evidence to establish the link and proximity between the acts of Appellant and the damage caused to the Respondents property, even without any expert evidence. This in my view is where the common law doctrine of ‘Res ipsa loquitor’ (The thing speaks for itself) applies. In Osborn’s Concise Law Dictionary, 9th edition, “The doctrine is applicable in cases where there is prima facie evidence of negligence, the precise cause of the incident cannot be shown, but it is more probable than not that an act or omission of the defendant caused it and the act or omission arose from a failure to take proper care for the claimant’s safety.”

17.         Ms. Cecile Bastille, a Quantity Surveyor, and a graduate from Notingham University, England, testifying on behalf of the Respondents had stated that she had been in practice for over 15 years. Although the Appellant claims she was not an expert it transpired during her evidence that she had done land valuation for the Supreme Court of Seychelles for many years, which evidence the Appellant had failed to contradict. Testifying about her work she had stated that she values properties, and deals with financial aspects of construction. In this case she had done a valuation of the damaged done to the Respondents houses and as to what the present value of the property would have been if there was no quarry. It had been her evidence that all the cracks in the house were due as a result of the quarry operation. She had gone on to state that whatever repairs done to the house will be only short term unless the owner of the house spends millions of money to use shockproof materials, which is not feasible. According to her testimony if the quarry doesn’t stop the cracks will definitely continue.

18.         In the case of Francois Rose and 4 others VS Civil Construction Company Limited relied on by the Appellant, the plaint of a neighbour of the Respondents for damage caused to their houses by the blasting activities of the Appellant was dismissed, as the claim pertaining to cracks to the houses was unproven, according to the judgment of this Court. This Court said: “It is clear to us that the only person able to provide professional expertise in the circumstances would have been a civil or structural engineer, failing which someone acceptably competent in the field. It was incumbent on the appellants (plaintiffs in that case) to bring evidence from a structural engineer or any other expert competent in the field to eliminate these possibilities.”

19.         In this case, David Port-Louis, a qualified civil engineer from the University of Manchester, with 13 yrs experience, testified on behalf of the Respondents. He had visited the houses of the Respondents. According to his testimony the cracks and structural damage was due to the excessive blasting, ground borne vibration, big machinery, and heavy trucks. The Appellant’s position that faulty workmanship or ground conditions upon which the houses were built that could cause uneven settlement, had not been put to him by the defence in cross-examination.

20.         In the case of Mrs. M. De Silva and four others VS UCPS Ltd, SC 237 of 1993 (unreported), a case where the facts were similar to the instant case, the then Chief Justice stated: “In spite of conflicting expert evidence, I am satisfied that ground vibration caused by defendant’s activities have resulted or aggravated cracks in the first plaintiff’s house….taking everything to account, I would say that the defendant’s activities have contributed at least to one third of the damages. Other factors have also contributed to cracks such as water penetrating in the foundation, the differential settlement, the difference in the nature of the soil partly rock, partly filled soil, partly dry stone wall.”

21.         In Francois Rose this Court also stated: “We recognise that it is impossible for any plaintiff to prove conclusively the link between injury or damage and the tortfeasors’ activities. In such cases the court has adopted a probabilistic approach of causation whereby the offender who caused the damage or increased the most probability of the damage is held liable as in the case of Desaubin, De Silva and recently Isnard (supra). Hence even if causation cannot be established with absolute certainty, courts may find in favour of the plaintiff. The sensible approach would be to rely on cogent evidence, at best on experts to establish that a suspected facility increased the risks of or caused damage...”

22.         In De Silva, where the pleadings as stated in the judgment, were very much similar to that of this case, the learned Trial Judge went on to state: “This case falls to be decided under the principle of ‘faute’ under article 1382 and 1383 of the Civil Code of Seychelles. It is trite law that, however careful or prudent one could have been, if one’s action affects the rights of one’s neighbour beyond what is called the measure of the ordinary obligations of neighbourhood this constitutes a ‘faute’ and ‘abus de droit’ attracting civil liability and resulting in award of damages.” A similar view was held in Desaubin V United Concrete Products (Seychelles) Ltd, 1977 SLR, No.36, 164. In that case Sauzier J. quoting Capitant in a note to a case decided by the Cour d’Appel de Bordeaux on the 5th March 1903 and reported in D.P. 1908.2.49 states it is for the trial Judge to assess on the facts whether the damage exceeds the measure of the ordinary obligations of neighbourhood. Liability arises due to the fact that damage is the inevitable consequence of the exercise of the industry.

23.  In a recent judgment the Cour d'appel de Fort de France, 17 janvier 2014, n° 11/00154 stated that as a result of the combined application of articles 1382 and 1383 a sharing of responsibility between the parties to the litigation was required in view that the cracks to the construction were due to both ground vibrations and the failure to carry out the construction in accordance with the rules of the art applicable at the time, and in particular the DTU standards.

24.         It is stated in Amos and Walton’s Introduction to French Law, 3rd edition: “It is recognized in French law that there is a kind of fault which consists in the abusive exercise of a right…Cases which in England would be regarded as falling within the law of nuisance are looked upon in France as instances of abuse of rights.”

25.         The doctrine of abuse of rights or the tort of nuisance is an amalgam of concepts with links to the non-absolute character of property rights emanating from article 544 (“Ownership is the widest right to enjoy and dispose freely of things to the exclusion of others, provided that no use is made of them which is contrary to laws or regulations.”), with the law of obligations as quasi-contractual liability under article 1370 (rights and duties between neighbouring owners which arise without agreement) and tortious liability under article 1382 of the Civil Code of Seychelles Act. It has evolved in such a way so as not to require the proof of fault.

26.         The doctrine of abuse of rights is found, in some form, in almost all civil law jurisdictions. According to Gutteridge, ‘Abuse of Rights’ 5 Camb. L.J. 22, 35 (1935); the underlying philosophy of the abuse of rights is that a right is granted for a socially useful purpose and cannot lawfully be exercised in a manner inconsistent with that purpose. In a society in which the diverse interests of its members clash, fault ought to appear as soon as one makes himself ‘intolerable’. In Societe Miniere des Terres Rouges V Poncier et Grosse, Colmar, 19 mai 1938, D.H. [1938] 425 the Cour d’Appel stated: “an owner who, by the manner in which he uses and occupies his immovable property, causes to his neighbours harm exceeding the limits of the ordinary obligations of the neighbourhood is at fault if he neglects to take precautions which have to be taken in order to prevent these inconveniences.” Also see Dupont V Lacante, Civ, 18 fevrier 1907, D.P. [1907] 1. 385.  According to Capitant, Note D.P. [1908] 2.49, a long line of decisions has established that, despite the fact that all reasonable precautions, short of cessation of activities, have been taken, mere interferences with the use and enjoyment of land are actionable, if they exceed the measure of the ordinary obligations of the neighbourhood.

27.         This Court following the decision in Desaubin V United Concrete Products (Seychelles) Ltd stated in Green V Hallock [1979] SCAR 141, stated: “It is not necessary that the author of the nuisance should have been negligent or imprudent in not taking the necessary precautions to prevent it. Liability arises even in cases where it is proved that the author of the nuisance has taken every possible precaution and all the means not to harm or inconvenience his neighbours and that his failure is due to the fact that the damage is the inevitable consequence of the exercise of the industry.”

28.         The doctrine of Abuse of Rights is similar to the rule in Rylands v Fletcher [1868] UKHL 1.In that case, Fletcher employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris, they chose to continue work rather than properly blocking them up. Shortly after being filled, the reservoir burst and flooded the neighbouring mine of Rylands, causing damage. Rylands brought a claim under negligence, against Fletcher. The House of Lords held that Ryland had the right to enjoy his land free of interference from water, and that as a result  Fletcher was guilty of trespass and the commissioning of a nuisance. This led to the development of the ‘Rule of Rylands v Fletcher’; that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

29.         The learned Trial Judge had stated:“The Defendant (Appellant now) was negligent in failing to carry out tests from the very beginning when they commenced blasting on their site. They should have carried out tests within the neighbourhood to ascertain how much (level) of shock or vibrations the houses built in that area could sustain before damage can be caused.”The learned Trial Judge had pronounced that the tests subsequently carried out by the Appellant, “not to hold water”. He had gone on to state: “In as much it may be true that on that particular day the reading was 1.02, it does not account for the time that the Defendant (Appellant) was operating on the quarry without the machine that measures the level of vibrations. It is feasible that before the introduction of the machine, the blasting could have caused vibration readings that were much higher than this.” The Cour de Cassation held, in Floret V Zunino Civ, 29 juillet 1886, D.P. [1886] 1. 165  that where a municipal ordinance had prohibited the use of explosives in quarries within a certain distance from human habitations, a resident of this zone had a cause of action against the defendant blaster who had not observed the distance requirement, even if no actual harm could be proved.

30.         There had been a difference of opinion in the testimonies of the experts from the Appellant’s and Respondents side. It is trite law that a court is not bound to accept the evidence of any expert. It is also trite law that it is for the Judge to determine whose evidence it wishes to accept and rely upon, for they are essentially findings of fact. It had been suggested in the Skeleton Heads of Argument of the Appellant, that this court should contradict the findings of fact by the Trial Judge as regards to the cause for the damage to the houses of the Respondents. On a reading of the testimonies of the experts on both sides it is not possible with certainty to exclude the possibility that the damage to the houses of the Respondents were not due to the blasting. This also becomes clear from the findings of the learned Trial Judge at paragraph 15 above. An appellate court accepts findings of facts that are supported by the evidence believed by the trial court unless the Trial Judge’s findings on credibility are perverse. The facts of this case, and the findings in this case, is similar to those in the case of De Silva referred to at paragraph20 above.

31.         The principle enunciated in De Silva that civil liability arises when one’s action affects the rights of one’s neighbour beyond what is called the measure of the ordinary obligations of neighbourhood is similar to the well known English law principle of ‘duty of care’ established in  Donoghue V Stevenson (1932) AC 562, relied upon by the learned Trial Judge. This is in accordance with article 5(2) of the Civil Code of Seychelles Act, referred to in paragraph 8 above and is relevant in determining liability under article 1382(1) and 1384(1). In Donoghue V Stevenson Lord Atkin establishing the ‘neighbour principle’ stated: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.”In De Silva the Court stated: “In an ordinary case of ‘faute’ assuming that a duty of care has been established, the vital question is ‘Did the defendant take reasonable care?’ If he did there can be no liability. In cases of ‘nuisance’ however, the defendant does not necessarily escape liability even if he has taken reasonable care.”

32.         In view of what has been stated above I have no hesitation in dismissing grounds 1,2 and 3 of appeal.

33.         In ground 4 the Appellant’s complaint as elaborated in the its Skeleton Heads of Argument is that the finding of the learned Trial Judge that the Appellant was negligent in failing to carry out rock blasting tests at the beginning of the blasting was ultra petita as this was not a faute pleaded in the Plaint. At the very outset I wish to point out that the complaint is against a ‘finding’ the learned Trial Judge made in this regard and not against any relief granted to the Appellants on this basis and thus a misunderstanding of the ‘ultra petita’ rule. There is nothing in the judgment to state that damages had been awarded on the basis that the Appellant was negligent in failing to carry out rock blasting tests at the beginning of the blasting. At paragraphs 7 - (iii), (ix), and (x) of the Plaint the Respondents (Plaintiffs then) had pleaded, that the acts mentioned therein of the Defendant (Appellant now),...constitute a faute in law, for which the Defendant is vicariously liable in law to the Plaintiffs. The said acts are (iii) blasting the terrain and granite surface areas in proximity to Plaintiffs properties and residence,(ix) causing shock waves and vibrations upon the usage of explosives, heavy equipment and machinery, (x) causing cracks to Plaintiffs houses. Faute is an error of conduct not merely by an act but also by negligence or imprudence which causes damage. I am of the view that once the above matters were pleaded the failure of the Appellant to carry out rock blasting tests at the beginning of the blasting became a matter of evidence. I therefore dismiss ground 4 of appeal.

34.         As regards ground 5 of appeal the Appellant had argued in its Skeleton Heads of Argument that the learned Trial Judge erred when making an award for nominal damages for inconvenience to the Respondents when he accepted in paragraph 67 of his judgment that their claim for moral damages remained unproven. It is clear from a reading of paragraphs 67 and 68 what the learned Trial Judge had stated is that the claim of R 50,000.00 as moral damages for stress, inconvenience, anxiety, psychological harm, distress and fright remained unproven. What was unproven therein was the quantum, namely the amount claimed in relation to the stress, anxiety, psychological harm, distress and fright suffered by the Respondents. Undoubtedly the learned Trial Judge had taken into consideration the noise, shock and the fear the Respondents experience when a blast occurs which he had however considered to be minimal and thought it fit to award each of the Respondents a nominal sum of SR 10,000.00 for inconvenience. The evidence of the 1st, 2nd and 6th Respondents bears testimony to this. I therefore dismiss this ground of appeal.

35.         I see no merit in the argument put forward in grounds 6 and 7 to the effect that since the land and houses belonged to the 1st Respondent, the award of SR 300.000.00 for loss of value of property and the award of SR 377.500.00 as costs for the repairs of the houses to all the Respondents was incorrect. Surely as per the Plaint, the 1st Respondent was the chief householder and the 2nd Respondent was his wife and the 3rd to the 6th Respondents were their children. What was claimed in the Plaint in respect of loss of value of property and costs for the repairs of the houses was a global figure and in respect of all the members of the household and what was awarded was the same. Again, the amounts awarded for the loss of value of property and costs for the repairs of the houses could not be any different even if the award was only for the 1st Respondent. The challenge in ground 6 of appeal to the learned Trial Judge’s decision to place reliance on Miss Bastille’s evidence is without a basis. It is also incorrect to state that the Respondents did not adduce other evidence, when the 1st, and 2nd Respondents and David Port-Louise all testified before the Court as regards the damage to the houses as a result of the explosions. There is nothing in the judgment to suggest as stated at ground 7 of appeal that there was a mixing of issues in relation to the repairs to the houses with depreciation of the houses in making the award. I therefore dismiss grounds 6 and 7 of appeal.

36.         It is clear that the learned Trial Judge had not based his awards in respect of costs to repairs of the house and the loss of value of property, solely on the amounts set out in the report of Miss Bastille. In fact the amounts awarded are far less than what has been estimated by Miss Bastille. It is for the Trial Judge who saw the Valuers for the Respondents and the Appellant who testified before him producing their respective reports to determine what amount should be awarded in respect of the respective claims and not for the Appellant’s Counsel to argue that he should have gone by the valuation put forward by its Valuer. It is also not the function of an appellate court to do a revaluation of the costs to repairs of the house and the loss of value of property, as they are necessarily findings on facts, unless it has been proved that awards made by the trial court are clearly wrong and perverse. There is no allegation in the grounds of appeal that the damages awarded are manifestly excessive or extremely high.

37.         In Michel V Talma [2012] SLR 95 this Court cited Mousbe V Elisabeth (SCA 14/1993 unreported) where it was held that in determining damages, the court should not substitute its own judgment of appropriate damages for that of the trial court. This Court in Dialoo V Bonte Civ App 15/1987 cited with approval Flint V Lovell [1935] 1 KB 354 (CA) where Greer LJ said:“This court will be disinclined to reverse the finding of a 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 award of damages it will generally be necessary that this court should be convinced either that the judge acted on a 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 damages to which the plaintiff is entitled.” Silungwe JA in Mousbe V Elizabeth, CIV App 14/1993, SCAR 1993-1994 in an appeal against the quantum of damages awarded to the respondent by the Supreme Court stated: “In my judgment I would say that quantum assessed was seemingly on the high side but that it was not manifestly excessive, regard being had to all the circumstances of this case.”

38.         In Government of Seychelles V Rose SLR 2012, 365 this Court  stated: “It is settled law in Seychelles as per this court’s decision in Ventigadoo SCA No 28 of 2007 that the fundamental principle of law by which this court is guided when considering the adequacy or ortherwise of an award for damages by an inferior court is –Before interfering with an award of damages, the Appeal Court must be convinced that:- (i) that the trial court acted on some wrong principle of law; or (ii) the amount awarded was so high or so very small as to make it, in the judgment of the Appeal Court, an entirely erroneous estimate of the damage to which the plaintiff was entitled.”

39.         It has been the submission of the Appellant in their Skeleton Heads of Argument in respect of ground 8 of appeal; basing itself on the judgment in Francois Rose and 4 others VS Civil Construction Company Limited SCA 26 of 2012; that the 3rd to the 6thRespondents, being minors, should have been represented by their parents in Court and this ought to have been pleaded as being so, as required under section 73 of the Seychelles Code of Civil Procedure. The Appellant had also relied on article 450 of the Civil Code of Seychelles Act which states that the guardian shall represent the minor in all legal acts. It is the Appellant’s argument in view of the failure to do so, no award should have been made in respect of the 3rd to the 6th Respondents by the court. Section 73 of the Seychelles Code of Civil Procedure states: “If the plaintiff sues … in a representative character, the plaint must state in what capacity the plaintiff … sues.”I am of the view that section 73 becomes applicable in cases where the sole claimant in the suit is a minor or are minors and their guardian brings the action on their behalf or in other words in a representative capacity; but where the action is brought by the parents along with their children in respect of the same cause of action, it would not be fatal to the Plaint or maintenance of the suit, if in the caption of the Plaint no special mention is made as to the capacity in which the children sue, provided there is reference in the Plaint that they are the children of the parent. At paragraph 3 of the Plaint it had been stated that the “3rd,4th, and 5th and 6th Plaintiffs are the children of the family and inhabitants of their said houses”. The requirement in section 73 of the Seychelles Code of Civil Procedure, that an action by a minor be brought in a representative capacity flows from the general duty of the court to protect the interests of minors. I am at a difficulty to understand that a minor whose personal rights and property has to be protected by court whenever they are in jeopardy, is to be denied his rights by that very court, merely because there is no statement in the caption that he or she is suing in a representative capacity, which is a mere technicality.

40.         According to article 389 (1) of the Civil Code of Seychelles Act: “The father during marriage shall be administrator of the property of his minor unemancipated children…He shall be accountable … for the property…” and under article 389 (2): “If the father cannot act or if he is deprived of his administration, the mother shall have such administration with all powers that the father previously enjoyed.” To interpret section 73 of the Seychelles Code of Civil Procedure, which is a procedural law, in the manner submitted by the Appellant, in a case like this at the appeal stage, and thereby deny an award to the 3rd, 4th, 5th, and 6th Respondents, would be in conflict with article 389 of the Civil Code of Seychelles Act. It would also impede the exercise of the rights of the 3rd, 4th, 5th, and 6th Respondents guaranteed to them in article 31(c) of the Constitution of the Republic of Seychelles which recognises the right of children to special protection against physical dangers; and article 27(1) which guarantees the right to equal protection of the law including the enjoyment of the right to decent shelter conducive to health and well-being (article 34) and the right to live in and enjoy a clean, and healthy environment (article 38).

41.         In the Indian case of Sonachalam Pillai V Kumaravelu Chettiar AIR 1928 Mad 445, it was held that even if the cause title did not describe the suit as being brought in a representative capacity, one has to see whether the plaintiffs did in substance bring the suit in a representative character or capacity and whether the defendants contested the suit on the larger question affecting the plaintiffs on record as well as others they were representing. It is clear from the evidence of the 1st and 2nd Respondents that they had brought the suit in a representative capacity. At the very commencement of their evidence the 1stand 2ndRespondents had given the names and ages of their children and said they all lived with them in the house. They both had testified as to the effects the blasting activities had on their children and Counsel for the Appellant had cross-examined them about that. Counsel for the Appellant had not, raised a plea-in-limine litis against the joinder of the 3rd to the 6th Respondents or objected to the evidence of the 6th Respondent on the basis of section 73 of the Seychelles Code of Civil Procedure, or under article 450 of the Civil Code of Seychelles Act, even after coming to know he was a minor. In fact he had gone on to cross-examine the 6th Respondent. 

42.         It was held by a Constitutional Bench of the Supreme Court of India in Bhagwati Prasad VS Shri Charamaul, AIR 1966 SC 735 that the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed where the substantial matter relating to the title of the parties to the suit was touched, though indirectly or even obscurely in the issues, and evidence has been led about them. “What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it?”

43.         The principle was reiterated by the Supreme Court of India in Ram sarup Gupta (dead) by LRs. vs. Bishun Narain Inter College [AIR 1987 SC 1242]:“The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal." (emphasis added)

44.         The above principle was reiterated again by the Supreme Court of India in Bachhaj Nahar VS Nilima Mandal and Anr, Civil Appeal Nos 5798-5799 of 2008.

45.         I am also of the view that the transparent nature of modern litigation requires that Counsel at a trial should have, at the very outset of the trial, raised the issue that there should have been a pleading that the 3rd to the 6th Respondents were suing in a representative capacity; rather than wait until the conclusion of the trial to file a ground of appeal on such a minor procedural or technical matter. If Counsel deliberately omit and subsequently raise a procedural issue in the appellate court then in the absence of any cogent reason, it should be held against the party as having employed a deliberate tactic to find an appeal point. The raising of technical procedural issues in this way is a useful trial function and in following it, counsel assist not only in achieving a fair trial but also they act in the interests of justice. The appellate courts, in my view should not look favourably on cases where counsel have held their seats, hoping for an appeal point, when such issues should have been raised at the very outset. It is to be remembered that a trial before a court is not a contest between counsel of the parties to the litigation, but an exercise in the administration of justice. Please see the Fiji cases of Alfaaz –v- State [2018} FJCA 19, AAU0030 (8 March 2018), Raj –v- State Petition for Special Leave to Appeal No CAV0003 of 2014: 20 August 2014 [2014] FJSC 12 and Varasiko Tuwai –v- State [2016] FJSC 35 (26 August 2016).I therefore dismiss ground 8 of appeal.

46.         At the hearing of this appeal an issue was raised whether the Respondents case before the Supreme Court was based under direct liability or vicarious liability and whether the pleading at paragraph 7 of the Plaint was in conformity with article 1384 (3) of the Civil Code of Seychelles Act, since the words “acting within the scope of the employment”, had not been specifically pleaded. Paragraph 7 of the Plaint states as follows: “The Plaintiffs aver that the said acts of the defendant, through its employees, servants and agents, constitute a faute in law, for which the Defendant is vicariously liable in law to Plaintiffs”.  In my view this was not a case where on the facts there was a doubt as to whether the employees of the Appellant had been acting deliberately and contrary to the express instructions of the employer and their activities were incidental to their employment, to warrant such a pleading. Such a pleading may be necessary in a case where on the facts there could have been a doubt as to whether the employees were acting on a frolic of their own. This was a case where the Appellant being a company had to necessarily carry out its activities through its employees, servants and agents as averred at paragraph 7 of the Plaint. According to the Defence and the evidence led at the trial the Appellant had not denied responsibility for the activities of its employees. At paragraph 4 of the Defence the Appellant had averred: “that it obtained the permission of the Government of Seychelles to enter the land which constitutes the quarry site at Cap Samy on Praslin (the “site”) and to start quarry activities”. This was not a case where the evidence showed that the acts causing damage were that of another person, for whom the Appellant could be held responsible as was in the case of Confait V Mathurin Civ App 38/1994, 1995 SCAR, 203. This was a case where the Appellant being a company acted through its own employees. The Respondents had not departed from their pleadings by raising new issues at the trial, as to occasion an injustice to the Appellant.

47.         There is no requirement under section 71 of the Seychelles Code of Civil Procedure, which sets out the particulars that has to be contained in a Plaint, to plead the law. What is required is “a plain and concise statement of the circumstances constituting the cause of action and where and when it arose and of the material facts which are necessary to sustain the action” and “a demand of the relief which the plaintiff claims”. I am of the view that in a delictual action, once you plead the material facts which constitute the cause of action, the court will determine which of the articles in chapter II of Title IV of the Civil Code of Seychelles Act applies. It can be one or a combination of several articles, as set out in paragraphs 2 and 3 above.  It is in this same manner that the cases of De Silva V USPS, Desaubin V UCPS and Green V Hallock, referred to earlier, had been decided.

48.         In view of what has been stated above I dismiss the appeal with costs to the 1st and 2nd Respondents.

A. Fernando (J.A)

Signed, dated and delivered at Palais de Justice, Ile du Port on14 December 2018