Sullivan v Magna and Anor (CS 134/2011) [2016] SCSC 491 (08 August 2016);

 

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: CS 134/2011

 

[2016] SCSC 491

 

 

     

                                                           Manuel Sullivan                                                         

 

 

 

versus

1. Philip Magnan

                                 2. United Concrete Products Seychelles

 

 

 

 

Heard:             23rd July 2013, 28th October 2013, 29th March 2016, 23rd May 2016      

Counsel:          Nichol Gabriel for plaintiff

 

                                         

 

                        Guy Ferley for defendants

 

                                         

 

Delivered:       11thJuly 2016      

 

JUDGEMENT 

 

M. TWOMEY, CJ

 

The Plaint

[1]               This is a simple action for damages arising out of a road traffic accident in which the Plaintiff, while riding a bicycle on the main road at Cascade, was hit by a lorry driven by the 1st Defendant and owned by the 2nd Defendant.

[2]               The Plaintiff in his pleadings averred that as a result of the accident he received injury to his knees for which he claimed damages in the sum of SR 604,350.

[3]               The Defendants defended the action claiming in their statement of defence that it was as a result of the Plaintiff’s own negligence that the accident happened and that in any case the amount claimed as damages was grossly exorbitant and excessive in all the circumstances of the case.

The Plaintiff’s Case

[4]               The Plaintiff testified that on the 15th May 2010 he went for a ride on his bicycle at Cascade and whilst travelling south on the road towards the airport, he gave a right hand signal to turn into his cousin’s garage. Whilst doing so he was overtaken by the 1st Defendant, driving a truck belonging to the 2nd Defendant. The truck collided with the side of his bicycle and he fell and was injured.

[5]               The Plaintiff was taken to the casualty department of the hospital wherethe injuries to his knees were attended to. He was discharged but a few days later after his wounds started bleeding again he was admitted to hospital for two days. He was unable to return to work for two weeks.

[6]               In June 2010, his lawyer Mr. Gabriel, issued a mise en demeure to the insurers of the defendants. The Plaintiff claimed SR 300,000 for his physical injuries, SR4,000 for his loss of earnings, SR 300,000 for moral damages and SR 350 for his medical report. 

[7]               In cross examination he admitted to having been in contact with the 2nd  Defendant to get compensation for his injuries, which according to him did not bear fruition, hence the necessity to file the action.

[8]               He also admitted that he had seen the 1st Defendant before the accident when the latter had stopped near the bus-stop. He also admitted that he had not heard the truck because he had earphones and was listening to music, although not loud at the time of the accident.  He admitted that he was on the right hand side of the middle line of the road at the time of the impact. He was not aware that the bicycle was not licensed to be on the road.

[9]               The Plaintiff called Dr. Kenneth Henriette, a critical care specialist at Seychelles Hospital. He testified that the Plaintiff had been treated by one Dr. Luis Gonzalez who had written a report about his injuries and treatment. According to the report the Plaintiff had bruises to his left temporal lobe, abrasions on both knees and a deep wound on the left knee but no fractures.

[10]           Dr. Henriette also testified that Dr. Moorthy Chetty, an orthopaedist also treated the Plaintiff subsequent to his first reporting. He had no fever at the time but was admitted to hospital for trauma for post traumatic cellulitis. He was treated with analgesics and antibiotics and spent two days in hospital.

[11]           In cross examination he stated that the injuries suffered by the Plaintiff were minor but that he developed complications subsequently which if not treated could have been serious. 

The 1stDefendant’s case

[12]           The 1st Defendant testified. He stated that at the time of the accident he was working for the 2nd Defendant. He stated that he had about 19 years’ experience driving large trucks.

[13]           On the day of the accident, he was driving at Cascade near the mechanic shop quite slowly when he saw the Plaintiff on his bicycle who was wearing earphones and zigzagging across the road. He hooted several times and went very slowly trying to find out what the Plaintiff was going to do when all of a sudden he crossed in front of the truck.

[14]           He stated that at the time of the accident he was going about 15 miles an hour and tried to prevent the accident. His right front indicator caught the back wheel of the bicycle and the 1st Plaintiff fell onto the road.

[15]           He stated that the Plaintiff riding the same bicycle came to see him two days later and told him that the bicycle was not his and had to be repaired. Two days later after receiving his monthly salary he gave the Plaintiff SR600.

The 2nd Defendant’s case

[16]           Mr. Steven Quatre, the Plant Hire Manager of the 2nd Defendant also testified. He stated that vehicle S10419 driven by the 1st Defendant on the day of the accident belonged to the 2nd Defendant.  He stated that drivers are not normally authorised to travel along the route used by the 1stDefendant on the day of the accident and that they are generally asked to use the highway. He stated that the 1st Defendant having breached these orders, the 2nd Defendant was not liable for the damages arising from the accident.

Liability

[17]           In written submissions to the Court, Counsel for the Plaintiff , Mr. Gabriel stated that the case was grounded on Article 1383(2) of the Civil Code of Seychelles which provides:

The driver of a motor vehicle which, by reason of its operation, causes damage to persons or property shall be presumed to be at fault and shall accordingly be liable unless he can prove that the damage was solely due to the negligence of the injured party or the act of a third party or an act of God external to the operation or functioning of the vehicle.  Vehicle defects, or the breaking or failure of its parts, shall not be considered as cases of an act of God.

[18]           Relying on the authority of Elizabeth v Laporte CS 22/2000, Mr. Gabriel submitted that Article 1383(2) raised a presumption of fault against the driver of a motor vehicle which could only be rebutted by proving that the damage caused was due to the negligence of the injured party. He added that the 2nd Defendant remained vicariously liable in its capacity as the employer of the 1st Defendant as the 1st Defendant had at the time of the accident been acting in the general scope of is employment.

[19]           The Defendants were invited to make submissions but made none.  

[20]           Insofar as the general principles of the law in relation to road traffic accidents, this Court endorses Mr. Gabriel’s submission on the applicability of Article 1383(2) and the principles of strict liability in relation to drivers of motor vehicles. This was firmly established by the case of Vel v Tirant (1978) SLR 7.

[21]           It behoves the court to also point out that the case of Attorney General v Jumaye (1978-1982) SCAR 348 established that liability for road traffic accident can also be inferred from the provisions of Articles 1382 and 1384. Hence, a victim of an accident has the choice to proceed under Articles 1382, 1383 or 1384 and liability without fault is imposed.

[22]           Vel (supra) and Gonsalvez v Wilson (1978) 202 further established the apportionment of fault under the principles of contributory negligence and Laramé v Antoine (1982) SLR 456 that the presumption of strict liability was rebuttable but it was up to the Defendants to so do.

[23]           Having examined the evidence I am of the view that the truck driven by 1st Defendant did hit the back wheel of the bicycle being ridden by the 1st Plaintiff.  I also accept the evidence of the 1stDefendant that he was driving very slowly. This is in any case not denied by the Plaintiff. Had the 1st Defendant been travelling at a greater speed in the 25 ton truck, the 1st Defendant would have suffered more than just abrasions to his knees and a cut when he fell onto the road. The fact that only the back wheel of his bicycle was damaged is further corroboration of this fact. In any case the fact that the truck’s right indicator hit the rear wheel of the bicycle at a point near the middle of the road also confirms the 1st Defendant’s version of events that the Plaintiff was zig zagging across the road and not paying heed whilst having earphones on.

[24]           I find that the 1st Defendant tailgating the bicycle indicates that he was not acting in a prudent manner either. Had he exercised more care he would have kept a safer distance from the bicycle. He has therefore only partly rebutted the presumption of liability. I also find that the Plaintiff acted negligently riding an unlicensed bicycle in the middle of a main thoroughfare whilst wearing ear phones.

[25]           I find that the accident occurred through the negligence of both the 1stDefendant and the Plaintiff. I assess their contributory negligence as follows: the Plaintiff at 50% and the 1st Defendant at 50%.

[26]           The 2nd Defendant was the employer of the 1st Defendant at the time of the accident. Article 1384 (3) of the Civil Code provides:

Masters and employers shall be liable on their part for damage caused by their servants and employees acting within the scope of their employment.  A deliberate act of a servant or employee contrary to the express instructions of the master or employer and which is not incidental to the service or employment of the servant or employee shall not render the master or employer liable.

[27]           The 2nd Defendant has attempted torebutits vicarious liability as the employer of the 1st Defendant by stating through its Plant Hire Manager that the 1st Defendant was “generally” not authorised to drive on the Cascade Road. I am unable to accept this evidence as it not given by someone who had direct responsibility for the 1st Defendant. The Plant Hire Manager did not state what his authority was in relation to the 1st Defendant and whether he gave specific instructions to the 1stDefendant not to proceed on the Cascade Road. I find in any case that his evidence is hard to fathom given the fact that the Cascade Road is a primary road, no different to the Pointe Larue road, a mere three miles further south on which the 1stDefendant would have had to drive to access the 1st Defendant’s quarry operations.  

[28]           Under the provisions of Article 1384 (3) I find the 2nd Defendant vicariously responsible for the contributory negligence of the 1st Defendant as assessed.

Quantum of damages

[29]           I have on several occasions observed how this Court is singularly unimpressed by Counsel who submit no comparators for the assessment of quantum. I have stated once too often that the Court is reluctant to be arbitrary and to pluck figures from the sky. Yet this practice continues. Counsel throws figures on a Plaint and does not support them at trial or in submissions. The Court is expected to carry out the Plaintiff’s duties. This is not acceptable. Counsel should bring together evidence and authorities to support quantum of damages claimed. Conversely Counsel for the defendant should likewise bring authorities to support its defence that the amount claimed is exorbitant and not made out.

[30]           In these cases the Court may award a sum of damages, estimated to the best of its abilities. Compensation in such cases is purely compensatory. As the Plaintiff has suffered no permanent disability and his injuries consisted of only abrasions, bruises and a deep cut, I am of the view that he should only be awarded SR15, 000. He is entitled to the cost of the medical report for which he was charged SR350. He is also entitled to his loss of earnings for one month namely SR4,000.

[31]           It has become a habit of late in pleadings to express the moral damages claimed in Plaints as broken down under various heads. Non-pecuniary damages should be expressed under one head.  Article 1149 of the Civil Code provides in relevant part:

2.  Damages shall also be recoverable for any injury to or loss of rights of personality.  These include rights which cannot be measured in money such as pain and suffering, and aesthetic loss and the loss of any of the amenities of life.

[32]           In Adonis v Ramphal (2013) SLR 387 Egonda-Ntende CJ quoted Dickson J in the Quebecois case of Andrews v Grand & Toy Alberta [1978] 2 SCR 229. The quote is apt and I repeat it:

It is customary to set only one figure for all non-pecuniary loss, including such factors as pain and suffering, loss of amenities, and loss of expectation of life. This is sound practice. Although these elements are analytically distinct, they overlap and merge at the edges and in practice. To suffer pain is surely to lose an amenity of a happy life at that time. To lose years of one’s expectation of life is to lose all amenities for the lost period, and to cause mental pain and suffering in the contemplation of this prospect. These problems, as well as the fact that the losses have the common trait of irreplaceability, favour a composite award for all non-pecuniary losses.(p. 264)

[33]           I am of the view that pain, suffering, anxiety and distress – all non-pecuniary losses should be recovered under one head only - moral damage. I assess this, without guidance and supporting authorities from Counsel at SR8,000. 

[34]           The total award in this case amounts to SR27,350. Since the Plaintiff’s contributory negligence is assessed at 50% I order that the Defendants jointly and in solido pay the Plaintiff the sum of SR13, 675.

 

[35]           Costs on the award is also granted.

 

 

Signed, dated and delivered at Ile du Port on 11th July 2016.      

 

 

 

 

M. TWOMEY

?Chief Justice