Mangroo V Round Island Resort (CS22/2014)  SCSC 910 (21 November 2016);
IN THE SUPREME COURT OF SEYCHELLES
Civil Side: 22/2014
 SCSC 910
Round Island Resort
Heard: 13th July 2015, 28th June 2016
Counsel: Clifford Andre for plaintiff
Serge Rouillon for defendant
Delivered: 21st November 2016
M. TWOMEY, CJ
 The Plaintiff, a sous chef employed by the Defendant hotel sues the Defendant for injury sustained during working hours in his place of work, namely on a jetty at Round Island, Seychelles.
 He has quantified the injury as follows: SR200,000 for anxiety and inconvenience, pain and suffering SR 600,000, moral damage SR300,000 and loss of profitable earnings (sic) SR400,000 totalling SR1,500,000.
 The Plaintiff testified that on 9th March 2009 he went to check the cargo of provisions meant for the hotel’s kitchen on the boat that had come from Praslin when he slipped on the jetty and fell.
 He explained what took place after the incident as follows:
I got up after. The security guard picked me up and he asked me if I had anything and I told him I am not feeling anything right now. I went and checked the cargo and had it put in the transport to bring to the hotel. After one week I felt pain.
 He also explained that he slipped onto his “bum” into a sitting position. He then went to state:
It was after 3 days that I felt the pain in my hips
 He stated that he saw Doctor Albert on the 12th March 2014 and he was given pills and was told that if the pain did not stop to come back. After the three days “the pain was too much” so he went to see the doctor at Beau Vallon clinic. He was then referred to a specialist, a doctor Rebial who diagnosed a slipped disc.
 He was told he would need an operation in India and after other referrals and promises for surgical interventions by Seychelles hospital to this day has still not been operated on. He continues to suffer pain and is unable to walk for long periods of time.
 In cross-examination he denied that he had ever had back pain in the past necessitating treatment.
 Dr. Murthy Chetty, an orthopaedic surgeon from Seychelles Victoria Hospital testified. He produced a medical report in respect of the Plaintiff. He stated that according to the report the Plaintiff was first seen in the year 2000 with a complaint of low back pain radiating to the right leg. He was in the same year diagnosed with lumber vertebrae 4 and 5 spondylolisthesis and was treated conservatively.
 His symptoms persisted and in 2009 an MRI of the lumbar spine revealed spinal canal stenosis.
 In cross examination, Dr. Chetty stated that the Plaintiff’s complaint was a long standing one. In January 2015 the Plaintiff reported slipping and falling in the year 2010.
 The Defendant called one Mr. Roland Lesperance who testified that he knew the Plaintiff from school and at the Seychelles Polytechnic. At that time the Plaintiff was working as a kitchen steward and had a little limp.
 Mr. Lesperance worked as the head gardener at Round Island and remembers the Plaintiff coming to work there. He stated that it could not have been in 2009 as the hotel had just opened. He denied that the Plaintiff had ever fallen during the course of his duties but had slipped on the pontoon when he was going to Praslin on one occasion. At that time he was hanging on to the rope which was on both sides of the pontoon. He righted himself but did not fall and carried on to Praslin and then returned.
 That was a normal occurrence- he would come back and forth from Praslin every day and never complained. It was only in 2004 that it came to his notice that a claim had been made by the Plaintiff.
 Despite vigorous cross examination he maintained his testimony that the Plaintiff had never slipped and fallen onto the pontoon.
 Mr. Daniel Savy also testified on behalf of the Defendant. He worked as the Chef for Round Island for nine years and had worked for six months with the Plaintiff. On the day the latter came to the island he was limping and not moving around properly.
 He described various incidents where the Plaintiff had not carried out his duties as sous chef and it was for these reasons that his contract had been terminated. He confirmed that he joined Round Island in 2007 and the hotel was opened a year later.
 The evidence summarised above was heard by learned judge Karunakaran who was not available to deliver a decision in this matter. Both Counsel opted for this court to adopt the evidence and deliver judgment. Mrs. Jeanine Lepathy formally produced the court file containing the transcript of evidence.
 I have examined the transcript of oral evidence together with the documentary evidence adduced. I have also studied the pleadings of the Plaintiff. I am unable to discern whether the Plaintiff is alleging that the claim arises out of a breach of contract or whether it is one arising from a delict. It is not permissible to claim under both or to claim under delict when it is possible to claim under contract.
 In regards to this particular case, the law relating to delicts in Seychelles can be summarised as follows: Under Article 1382 of the Civil Code a person who causes an event to happen, and who is at fault, is liable for it. Article 1383 provides that liability is also established where conduct manifests itself in the form of an omission. Such misconduct can occur where the defendant acts in breach of a statutory duty or the rules of conduct derived from the general principle of neminem laedere.Article 1384 (1) provides that a person is liable for damage caused by things in his custody.
 In reference to Article 1384(1) Sauzier JA stated that in de Commarmond v Government of Seychelles and another(1983-1987) 3 SCAR (Vol 1) 135 at 155:
[t]he person who normally has the use, direction and control of the thing is the owner of the thing. There is, therefore a prima facie presumption that the owner of the thing is the person who has the custody of the thing.
 If the claim for damages is based on the existence of a contract, Article 1147 of the Civil Code, which establishes a presumption of fault, applies. Hence, a person who has committed a breach of contract is bound to pay damages, unless excused by force majeure, or where he has not performed his obligation correctly and in time.
 The Plaintiff produced his two temporary 3 month contracts. As an employee of the Defendant he was entitled contractually to a safe place of work although this is not specified in the contract.
 As stated above, our law does not permit concurrent liability (non-cumul des responsabilités). This is grounded in French jurisprudence which summarised, express the proposition that Articles 1382 and following are without application when the case is about a fault made in the performance of an obligation resulting from a contract (see Pool v Souris SCA 20/1995 and the French authorities of Civ., January 21, 1890, S. 1890. 1. 408; Civ. January 11, 1922, DP 1922. 1. 16).
 It would appear that the way the pleadings were written and evidence led that this is a case based on delict. The choice of action is the first issue the Plaintiff has failed to surmount to succeed in his claim against the Defendant.
 However whether the Plaint was based in contract or delict the Plaintiff has not been able to show that it was as a result of the state of the pontoon that he suffered injury. The evidence on this issue is equivocal. Further, he has not been able to demonstrate how the injury to his back or hips occurred. He states that he slipped and fell onto his “bum.” The Defendant’s witness who was present at the incident says he did not fall but slipped but righted himself by hanging onto the ropes on both sides of the pontoon.
 What is however more striking is the fact that the Plaintiff has failed to show that the injury for which he claims emanates from that fall. There is clear evidence on the contrary that the Plaintiff had an underlying back complaint. The Defendant’s witnesses confirm that he limped before the incident. The doctor confirmed that his spinal problems date back to the year 2000.
 I come to the conclusion that the Plaintiff is trying to gain financially from a slip on the Defendant’s premises for injury he already had.
 For all the reasons above I find that the Plaintiff has not proved his case in any way. The plaint is dismissed with costs.
Signed, dated and delivered at Ile du Port on 21st November 2016.