Tucker and Another v La Digue Island Lodge (Civil Side No. 343 of 2009) [2011] SCSC 98 (01 December 2011);

THE REPUBLIC OF SEYCHELLES

IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA

Civil Side No. 343 of 2009

Alan Tucker======================================Plaintiff No.1

Danielle Tucker===================================Plaintiff No.2

Versus

La Digue Island Lodge=================================Defendant

 

Bernard Georges for the plaintiffs

France G Bonte for the defendant

 

JUDGMENT

 

Egonda-Ntende CJ

  1. The plaintiffs are husband and wife. They were paying guests at the defendant's hotel establishment on the island of La Digue, Seychelles at the material time, celebrating their 25th wedding anniversary. The defendant is a licensed hotel establishment on La Digue Island, Seychelles. On the 30 September 2009 the plaintiffs joined an excursion provided by the defendant establishment to snorkel off Coco Island, Felicite. The defendant operated the excursion through its employees or agents who at all material times were acting in the course of the defendant's employment. The plaintiffs hold the defendant vicariously liable for the actions and omissions of the said defendant's employees and agents.

  2. It is contended for the plaintiffs that the in the management of the said excursion and during the execution thereof the defendant committed a fault and its said employees and agents committed a fault for both of which the defendant is liable. Particulars of fault of the defendant are stated to be,

'(a) Failing to anticipate the state of the weather at Coco island on the day; (b) Failing to provide a dinghy with an engine in good condition; (c ) Failing to provide crew of sufficient expertise and competence to operate the dinghy in the sea conditions of the day.'

  1. It is contended for the plaintiffs that the particulars of fault of the defendant's employees were,

'(a) Failing to abort the landing at Coco Island in view of the conditions of the sea at material time; (b) Failing to handle the dinghy competently and avoid hitting disembarked passengers.'

  1. As a result of the foregoing acts and omissions the plaintiffs while being disembarked onto the said Coco Island were injured when they were thrown against the boulders and when the dinghy belonging to the defendant and operated by the defendant's employees crashed into the plaintiffs. The plaintiff no.1 suffered the following injuries:

'(a) Depressed tibial plateau fracture of the left knee; (b) Wound to left knee; (c ) Internal bruising to left calf; (d) Severe lower back bruising; (e) Multiple body scratches.'

  1. Plaintiff no.2 suffered a wound to the head and multiple body scratches. By reason of the said injuries the plaintiffs suffered pain, suffering, and inconvenience, and they were put to unnecessary expense. They suffered special damages for travelling and incidental expenses of PSG 106.20 (equivalent to SR2800.00). The plaintiffs estimate their pain, suffering, and inconvenience as worth one million rupees and fifty thousand rupees respectively. The plaintiff no.1 therefore claims SR 1,000,000.00 as moral damages and special damages of SR2,800.00. The plaintiff no.2 claims SR50,000.00 as moral damages. And both plaintiffs claim the costs of this suit.

  2. The defendant denied this claim. The defendant accepted that the plaintiffs were its guest and that it arranged the excursion referred to by the plaintiffs. However it denied liability on account of an act of God. It contended that the weather and state of the sea was an Act of God outside the control of the defendant. The defendant further contended that in the light of the foregoing it could not offer any damages to the plaintiffs and prayed that this suit be dismissed with costs.

  3. At the trial only the plaintiffs testified and called one other witness, a medical practitioner. The defendant did not or could not adduce any evidence after offering a submission of no case to answer that was rejected by the court.

  4. The available evidence establishes that the plaintiffs were guests at the defendants hotel in La Digue. They joined the excursion group to Coco Island organised and operated by the defendants servants and agents. There were about a total of 10 guests in number who joined the excursion. They were taken to a Schooner that went off. The sea was choppy but not rough. A distance from Coco Island the schooner stopped and the first batch of 4 passengers were taken by dinghy to Coco Island. As they waited for their turn, they noticed the outboard engine was cutting and the operator had to pull the chord to restart. The first group landed ashore and the dinghy came back.

 

  1. The plaintiffs and a French couple entered the dinghy and the operator set off for Coco Island. The engine kept cutting and the chord had to be pulled to re start it. The dinghy was difficult to control once the engine had cut. During the moments the engine was running the operator controlled the dinghy fairly well. As they approached the shore the engine cut and the boat started drifting sideways. They were asked to alight near some boulders. A wave swept water all over the party. The next thing that happened was the dinghy came on a wave and hit the plaintiff no.1. on his knee. He felt his leg bending the wrong way.

 

  1. The plaintiff no.2 was hit by a wave and went under the water, hit a boulder and struggled back up again. She got cuts and bruises on the head. The French guy was black and blue and his partner had a cut on her arm. In explaining who she regarded as responsible for their injuries, the plaintiff no.2 stated in examination in chief ,

Q: Mrs Tucker you heard me ask this question of your husband you don’t have to answer it in the same way as he did but nothing stops you from doing so. If you have to point the finger of blame at somebody or something who would you blame for what happened to your husband and to you?

A: I think it would be the same as he said, I think for me really is whoever was responsible for the dinghy, the motor was not working properly.

 

Q: And had the motor been working properly, do you anticipate that this accident would have happened or would you have been able to discharge properly on the island.

A: In all fairness we may have still been thrown into the rocks because of the wave. You can’t do anything about that but my husband would not have had a broken leg.

 

Q: And you?

A: I wouldn’t have gone through the trauma of watching him get better and actually not be totally better now.’

 

 

  1. A distance away was another boat that had managed to offload its passengers on the shore of Coco Island. It had a platform that was laid down for people to alight and or enter. It picked up the plaintiffs and the French couple, and raced them to La Digue Hospital.

 

  1. At La Digue hospital there were attended to. Plaintiff no.1 was put in a wheel chair discharged but after a spasm of pain the plaintiff together with the French guy were airlifted to Victoria Hospital. The plaintiff no.1’s leg was x-rayed but the x-ray was rather unclear. He was discharged the very day and allowed to travel home, with the advice that he should have a fresh examination taken on arrival at home.

 

  1. On arrival in England the plaintiff no.1 went to hospital where was he was admitted. After a couple of x-rays and scans he was notified that he had a fracture but they could not operate on him until the wound on his knee had healed for fear of secondary infection. His leg was put in plaster and after one week, he was discharged. He was re-admitted in hospital. He was operated upon and a plate and six screws were inserted in his leg. His leg was put in a plaster cast and immobilised. He spent 6 to 8 weeks at home and did not start to work until the end of January when the office brought him a computer down at his home and he could put in 4-5 hours per day.

 

  1. He subsequently attended physiotherapy sessions and has had to undertake a lot of exercises to get movement back in the affected leg. When he puts full weight on the leg it clicks and grinds. There is a dull ache. He cannot walk the distances he used to. He must stop after a short while. He finds difficult to walk downhill. Prior to the accident he had a good knee. And now he has a bad knee that may have to be replaced in due course. He has developed arthritic pain in the joints.

 

  1. The plaintiff no.2 got a few stitches at La Digue hospital as well as treatment for the abrasions she had received. Though she healed she does feel pain in the head where she was injured during moments she is stressed.

 

  1. Dr Alexander Koritnykov examined the plaintiff no.1 on 25th October 2011. He found that the leg had no deformity but there is still some swelling of the left knee. There is some discomfort and clicking in his knee. He is likely to develop osteoarthritis and will suffer all this for the rest of his lifetime. He has limitations of movement to the left knee. He estimates his discomfort to be between minor and moderate.

 

  1. Have the plaintiffs established that the defendant is liable? From the available on record as the plaintiffs were landing on Coco Island there was another boat that landed passengers too right on the beach of Coco Island. There was no incident with this landing and in fact the plaintiffs were able to be boarded on it and returned to La Digue. This demonstrates that obviously the conditions were such that it was possible to make safe landing on Coco Island at this time with the right boat. It totally dispels the defence that what happened to the plaintiffs was outside of the defendants servants, agents and the defendants control by reason of an Act of God. In any case no evidence was adduced to support the defence of act of God.

 

  1. As both plaintiffs testified that whoever was responsible for the dinghy and its faulty motor or engine is the cause for the injuries suffered by the plaintiffs. Had the motor not been faulty the operator of the dinghy would have been able to control and manage the same in such a manner that it landed its passengers as safely as possible and that it would be steered away from the landing site. Once the motor cut off power and the operator could not control the dinghy it was moved by waves to hit the plaintiff no.1. This was clearly the fault of those responsible for dinghy. These are the defendant’s servants and or agents and the defendant is vicariously liable for their actions.

 

  1. Plaintiff no. 2 in her testimony quoted above conceded that given the weather the waves may still have thrown them against the rocks where they landed, an act that would not immediately be attributable to the dinghy and its faulty motor. She blames the defendants for the trauma she has to had to suffer watching her husband injured and recovering from the injuries. This is not the damages she has claimed in this action. She claimed damages for her own injuries based on falling on the rocks. She has however conceded that this is not the fault of the defendants. In the premises the plaintiff’s no.2’s action fails on account of her own evidence.

 

  1. I find that the plaintiffs have established that the defendant’s servants and agents who arranged this trip, provided a dinghy with a faulty motor that cut too often making it impossible to control the dinghy at crucial moments. The failure to control the dinghy due to its faulty engine led directly to the dinghy hitting the plaintiff no.1 and causing the injuries that he suffered. For that the defendant must be vicariously liable for the acts of his servants and agents. I hold the defendant liable for the injuries that the plaintiff no.1 suffered on alighting at Coco Island.

 

  1. With regard to the damages claimed by the plaintiff no.2, Mr Bernard George submitted that this court must take into account that the plaintiff is a national of the United Kingdom, living in the United Kingdom and therefore the damages ought to be higher than ordinarily awarded to Seychellois. He referred to the case of Dereck Dodo Meriton v Ste Anne Resort Ltd Civil Side No. 131 of 2008 and suggested the award in this case must be higher than the award in that case that was SR265,000.00.

 

  1. I have read the said judgment by my brother, Renaud, J. The plaintiff in that case had suffered a fracture as well as other injuries. The award made was itemised as follows:

I assess damages as follows:

(a) Compound Fracture of right tibial plateau =========================SR40,000.00

(b)Right peroneal nerve damage ==SR45,000.00. (c) Permanent Foot drop, due to right peroneal palsy ======================SR60,000.00.

(d) Economic Loss (loss of salary)= SR10,000.00. (e) Psychological harm========= SR 30,000.00

(f) Loss of enjoyment of life, including football, Swimming, diving and running=== SR80,000.00

Total===================== SR265,000.00.’

 

  1. It is clear first of all that the award for SR265,000.00 was an aggregate amount for several heads of damage well beyond compensation for the fracture. The compound fracture attracted only SR40,000.00. Nerve damage and resultant foot drop garnered SR105,000.00. The figure of SR 265,000.00 cannot therefore be the guide in this matter.

 

  1. Secondly upward adjustment of the quantum of damages from the normal range awarded in this jurisdiction on account of the nationality and residence of the plaintiff per se, without more, would appear to have no legal basis. Mr George provided none. I shall not take the same into account.

 

  1. The plaintiff no.1 suffered a fracture that healed well. There is though residual swelling at the right knee. There is some discomfort and clicking in his knee. He is likely to develop osteoarthritis and will suffer all this for the rest of his lifetime. He has limitations of movement to the left knee. His discomfort is estimated to be between minor and moderate. In light of the foregoing I am satisfied that a compound award of 190,000.00 would be sufficient recompense for all the injuries that the plaintiff no.1 suffered and will continue to suffer from in the future on account of the injuries he sustained on Coco Island. I award him the costs of this action as well.

 

Signed, dated and delivered at Victoria this 2nd day of December 2011

 

 

 

 

 

 

FMS Egonda-Ntende

Chief Justice