Pool v Canarya (CS 30/2013) [2016] SCSC 304 (09 May 2016);

IN THE SUPREME COURT OF SEYCHELLES

Civil Side:  30/2013

[2016] SCSC 304

 

 

ANEESA POOL

versus

LENNY CANARYA

 

 

Heard:                         24 September 2015

Counsel:                      Mr. Derjacques for plaintiff

                                   Mr. Camille for defendant

 

Delivered:                   9 May 2016

 JUDGMENT

 

Karunakaran J

 

[1]               This is a delictual action brought under Article 1382 of the Civil Code of Seychelles. The plaintiff in this action claims the sum of Rs500, 000/- from the defendant towards loss and damage, which the plaintiff suffered, as a result of a “fault” allegedly committed by the defendant. The defendant in his defence denied the entire claim of the plaintiff and sought dismissal of the action. However, during the course of the hearing the defendant admitted liability and invited the court only to assess the quantum of damages payable to the plaintiff.

[2]               The Plaintiff Ms. Aneesa Pool is a young woman. She is 21. She is working as an Immigration Officer at the Civil Status Office in Victoria, Mahé. She is living with her family at Au Cap, Mahé. She is a very friendly, outgoing and socializing person. She has many friends. It is not uncommon for her to go out during weekend- evenings to nightclubs to socialize and spend time with her friends. Occasionally she used to go to Tequila Boom night club at Belombre, Mahé socialize with her friends and then return home late nights by hiring taxi cabs.

[3]               The defendant is also a young man. He is 24. He is a student at the Seychelles Industrial Training Institute (SIT) and living with his parents at Anse Aux Pins, Mahé. Sometimes he used to provide unlicensed transportation services to the public for a fee using his car registration number S1079.

[4]               It is not in dispute that on the 11thday of February 2012, in the night the Plaintiff and her friend one Ms. Jordanna Chang Sam, a resident of Petit Paris socialized at the Tequila Boom night club at Belombre, Mahé. Then late night, at around 2 am the Plaintiff and her friend wanted to return home by taxi. They approached the defendant, who was then in the business of operating unlicensed taxi and engaged him to convey them to their houses for a fee.

[5]               Defendant agreed to drive the Plaintiff to Au Cap and en route drop her friend Ms. Jordanna Chang Sam at Petit Paris for a fee of R 300/-. Accordingly, the Defendant dropped off Plaintiffs friend at Petit Paris and proceeded drive the plaintiff towards south. The defendant, during the said trip, did not-stop the vehicle at Plaintiff’s residence at Au Cap but proceeded, at a speed of approximately 45 km to 60 km per hour and southwards and stated that:

1.      He wanted oral sex from Plaintiff or he would not stop the vehicle;

2.      He would sexually assault the Plaintiff forcibly;

3.      He would not drop off the Plaintiff at her home.

[6]               The Plaintiff, who was sitting at the back, frightened and opened the vehicle door in a panic and jumped out of the moving vehicle. She rolled on the road and consequently sustained scratches, aberrations and severe bodily injuries.  According to the plaintiff, she had to jump out of the moving car as she was scared and had no other option to save her from the defendant’s sexual abuse and threat. The plaintiff pleaded, requested and even begged the defendant to stop the car near the lane that leads to her house. At one point she even slapped the defendant from behind forcing him to stop, but he did not. The testimony of the plaintiff showing the degree of fear in this respect, runs thus:

“I fell down and rolled all over the road and then saw him stop the car and that time I thought he would pick me up and put me back in the car. So I felt really scared and got up from where I was and started running for my life and seeking help from the casino”

[7]               Some good Samaritans from the nearby casino called for ambulance, helped and transported the injured plaintiff immediately to Anse Royale Hospital.  The duty-doctor one Dr. Christian Annase - PW1- saw the plaintiff at around 3.30 am, and treated her for the injuries. The Doctor testified that the plaintiff came with the history of having sustained injuries as she jumped out from a moving vehicle. Upon examination, the Doctor found that in her musculoskeletal system there was a laceration to the skull near temporal region on the right side of the head and there was an aberration on the right shoulder and right hip vide exhibit P1. There were soft tissue injuries to the head, right shoulder and right hip. The wounds were cleaned, sutured and she was prescribed antibiotics and pain killer.  Subsequently, the matter was reported to the police. Criminal law was set in motion against the defendant. He was arraigned before the Magistrate Court on the 9thof March 2012 in criminal side No 92 0f 2012, with the following offences under four counts:

(1)         Assault Occasioning Actual Bodily Harm contrary to Section 236 of the Penal Code;

(2)         Causing harm by negligent act contrary to Section 230 of the Penal Code;

(3)     Insulting the modesty off a woman contrary to Section 153 of the Penal Code; and

(4)     Abduction contrary to Section 133 of the Penal Code.

[8]               After a successful plea bargaining with the prosecution, the defendant pleaded guilty only to charges under count 1 and 2 above. The other two charges under count 3 and 4 above were withdrawn by the prosecution. The defendant was accordingly convicted for offences under counts 1 and 2 and sentenced to pay inter alia, a sum of Rs5,000/- to the victim of the offence, the plaintiff in this matter.  Being dissatisfied with the quantum of compensation awarded by the Magistrate’s Court in the connected criminal case, the plaintiff has now come before this court claiming the following sums totalling               Rs 500,000/- from the defendant for loss and damage, she suffered from the said traumatic episode:

(1)     Compensation for the laceration to the temporal scalp on the right side of the head, abrasion on the right shoulder and right hip and soft tissue injuries to head, right shoulder and hip in the sum of SR 300,000-00

(2)     Moral damages for fear, fright, mental anguish, humiliation and psychological harm in the sum of Rs 200,000/-

[9]               It is the case of the plaintiff that since the Defendant’s said acts constitute a fault in law, he is liable to make good the loss and damages the plaintiff suffered.

[10]            On the other side, the defendant testified that during the journey the plaintiff talked to him nicely in a friendly manner but he never asked her to have oral sex with him. However, he admitted that he did not stop the car at the lane, where she wanted to get down. As he continued driving passing that lane, for no treason the plaintiff opened the door and jumped out and sustained injuries. The defendant stated that he was in no way responsible for the incident and the plaintiff sustained injuries because of her own fault.  Thus, according to the defendant, he was not at fault nor was he negligent in causing those injuries to the plaintiff. Hence, the defendant denied liability.

[11]            In fact, delictual liability in Seychelles is basically governed by Article 1382 of the Civil Code of Seychelles. This is the most famous of all the articles of the Civil Code as it embodies the codified law of delict, which has a more limited and rational character than its un-codified counterpart namely, “tort” under the English legal system. Paragraph 1 of this article, lays down the general rule for all torts, which is that liability rests on the general concept of fault. This paragraph is obviously - word by word - a replica of the corresponding article in the French Civil Code, which was in force prior to the coming into operation of our present Civil Code. In fact, “fault” is defined in paragraph 2 of this Article as being 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 also stresses that the fault may be the result of a positive act or omission.

[12]           In the instant case, I believe the plaintiff in her testimony in that,

1.            The defendant wanted oral sex from Plaintiff and threatened her by telling that he would not stop the vehicle;

2.            He did issue out threats that he would sexually assault the Plaintiff forcibly; and

3.            He intentionally did not drop off the Plaintiff at the lane leading to her home.

 

[13]           De hors, the admission of the defendant for delictual liability in this matter, I also find on evidence and hold that the defendant is liable in delict to compensate the plaintiff, for the consequential loss and damages. According to the Doctor, who treated the plaintiff for the injuries testified that the injuries were not sever in nature and extent on a strict scale of severity. Also I note, acts and offences of this nature against women carry a scar of psychological trauma throughout their lifetime.  However, the amount claimed by the plaintiff under each head of loss and damage, appears to be exaggerated, unreasonable, exorbitant and disproportionate to the actual injuries he suffered.

[14]           Having taken into account the entire circumstances surrounding the episode including the nature and extend of the bodily injuries and the psychological trauma the plaintiff suffered, I award her the following sums:

(1)     Compensation for the bodily injuries, pain and suffering in the sum of SR 35,000/-

(2)     Moral damages for fear, fright, mental anguish, humiliation and psychological harm in the sum of Rs15,000/-

Total SR 50,000-00

[15]            Since the defendant has already been partly compensated in the sum of Rs5, 000/- by the Magistrate’s Court along with the fine the defendant paid in Criminal Case No. 92 of 2012, this sumRs5, 000/- ought to be discounted from the amount awarded in the present action.

[16]            Accordingly, I enter judgment for the plaintiff and against the defendant in the sum of Rs45, 000/- with interest at 4% per annum - the legal rate on the said sum as from the date of the plaint and with costs to be taxed in accordance with Magistrate Court’s scale.

 

 

 

Signed, dated and delivered at Ile du Port on 9 May 2016

 

D Karunakaran
Judge of the Supreme Court