Harvey and another v Brette and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens |
| Judgment Date | 16 August 2021 |
| Neutral Citation | [2021] UKPC 23 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0049 of 2019 |
[2021] UKPC 23
Privy Council
From the Supreme Court of Mauritius
Lord Lloyd-Jones
Lady Arden
Lord Kitchin
Lord Hamblen
Lord Stephens
Privy Council Appeal No 0049 of 2019
Appellants
P Maxime Sauzier SC
Josephine Robert
(Instructed by AxiomStone Solicitors)
Respondents
Gavin Glover SC
Yanilla Moonshiram
(Instructed by Jean Christophe Ohsan Bellepeau Chambers)
The panel met on 29 July 2021 to consider the appeal on the papers
Nigel Ryan Brette (“the first respondent”), then seven years and two months, now 18 years old, sustained catastrophic personal injuries in a road traffic collision which occurred at 4.15 pm on Monday 8 March 2010. He was a pedestrian who was either walking on the footpath adjacent to the Royal Road, Mon Loisir, Mauritius, or he was in the process of crossing that road, when he was struck by a Nissan van (“the van”) owned and driven by Johann Lindsay Patrick Harvey (“the first appellant”). The first appellant's road traffic insurers were Cim Insurance Co Ltd whose obligations were subsequently taken over by Swan General Ltd (“the second appellant”).
On 19 June 2012, the first respondent and his parents (“the second and third respondents”), who are his full-time carers, commenced proceedings before the Supreme Court claiming damages against the first and second appellants. The appellants' liability is said to arise, in particular, under article 1384, alinéas (paragraphs) 1, 5 and 6 of the Mauritius Civil Code (the “Civil Code”), which provide, so far as relevant:
“1. On est responsable non seulement du dommage que l'on cause par son propre fait, mais encore de celui qui est causé par le fait des personnes dont on doit répondre, ou des choses que l'on a sous sa garde. (‘One is liable not only for the harm which one causes by one's own action, but also for the harm caused by the action of persons for whom one is responsible, or of things which one has in one's keeping.’)
…
5. Le gardien de la chose, du dommage causé par le fait de celle-ci. (‘The keeper of a thing, [is liable] for harm caused by the thing.’)
6. La responsabilité ci-dessus a lieu, à moins que … le gardien de la chose ne prouve que le dommage a été causé par l'effet d'une force majeure ou de la faute exclusive de la victime. (‘The above liability arises, unless … the keeper of the thing proves that the harm was caused by an event of force majeure or by the exclusive fault of the victim.’)”
On this basis the respondents contended that the van was a thing in the keeping of the first appellant, so that he was liable for harm caused by the van unless, as the keeper of the thing, he proved that the harm was caused by the exclusive fault of the first respondent, the victim. In the alternative the respondents contended that the road traffic collision occurred due to the “ faute”, negligence and/or imprudence of the first appellant. In addition, the respondents contended that the second appellant, as the insurer of the van, was as such jointly liable for the damages sustained by them.
The appellants denied liability and averred that the accident occurred due to the “ faute”, negligence and/or imprudence of the first respondent. In the alternative, they contended that first respondent had been contributorily negligent and as such the damages should be apportioned.
On 25 March 2014 and 10 November 2015 the case was heard before A R Hajee Abdoula J, who unfortunately died before delivering his reserved judgment. This meant that the case was reheard on 17 November 2017 and 22 February 2018, before V Kwok Yin Siong Yen J (“the judge”). Various witnesses were called on behalf of the respondents, but the first appellant did not give evidence and no other evidence was called on behalf of the appellants.
On 15 March 2018, the judge delivered her judgment. She held that since article 1384 of the Civil Code creates a presumption of liability against the “ gardien” of the van, and the appellants had admitted that the van was under “ la garde” of the first appellant, and was insured with the second appellant, the respondents did not have to prove the “ faute”, negligence or imprudence of the “ gardien”. The judge also held that it was incumbent upon the appellants, in order to be exonerated, to adduce evidence during the trial to prove that the accident was caused “ par l'effet … de la faute exclusive de la victime”, which they had not done. On that basis it was not necessary to make any factual findings as to how the road traffic collision occurred because, as the appellants had adduced no evidence at the trial, they had not discharged the obligation which rested on them to establish that the harm caused to the first respondent was due to his exclusive fault. The judge found that the appellants were liable to the respondents and awarded damages of MUR 10,100,000 which included interest at the rate of 15% on the sum of MUR 600,000 (ie the material damages) from the date of the lodging of the plaint together with costs.
On 26 March 2018, the appellants appealed to the Court of Civil Appeal (Balancy SPJ and Chan Kan Cheong J) (the “Court of Appeal”) which heard the appeal on 22 October 2018 with the judgment being delivered on 29 October 2018. The Court of Appeal held that the trial judge had misdirected herself by holding that the exception of “faute exclusive de la victim” under article 1384 of the Civil Code could only be proved upon the appellants adducing their own evidence. Rather, the exception could be established on the basis of any evidence that was adduced at the trial, including evidence adduced on behalf of the respondents. The judge ought accordingly to have considered all the evidence in order to decide whether the exception had been proved by the appellants. However, the Court of Appeal did not remit the matter to the trial judge but rather proceeded to consider the evidence itself, which was largely documentary, given that the first respondent was not capable of giving evidence and the first appellant had not given evidence. The respondents had called an eyewitness to the road traffic collision, Mr Vengrasamy, at the trial who had given evidence that the road traffic collision occurred when the van had left the road and struck the first respondent when he was on the footpath. There were some weaknesses in the evidence of this witness, but the Court of Appeal considered that those weaknesses could not be relied upon by the appellants in their endeavour to prove the “faute exclusive” or contributory negligence of the first respondent. The Court of Appeal considered that the burden of proving the “faute exclusive” or contributory negligence of the first respondent could only be discharged upon reliable evidence that the accident occurred in accordance with the version given by the first appellant in his statement to the police. The appeal failed since upon the Court of Appeal considering all the evidence it held that the judge could not reasonably have come to a different conclusion on the issue of liability.
The appellants now bring this appeal on three grounds:
(i) Having found that the judge had clearly misdirected herself when refusing to look at the evidence on record, the Court of Appeal was wrong not to have remitted the case back to the judge on the issues of faute exclusive de la victime or contributory negligence.
(ii) Because the Court of Appeal, having decided to analyse the facts of the case, was wrong not to have found that the first respondent was exclusively responsible for the accident, or that he at least contributed to same.
(iii) Because the Court of Appeal was wrong to have discarded the real and sworn evidence on record, as it related to the rough sketch, police examiner's report and the statement of the first appellant.
It is not in issue that if the first appellant is liable, that so also is the second appellant.
The appeal was listed before the Board in 2020 but adjourned at the parties' request because of the Covid-19 pandemic. The parties subsequently agreed that the appeal should be dealt with on the basis of their written submissions and on the papers.
The collision occurred on the Royal Road which is described as being “busy”. The part of the Royal Road on which the collision occurred is flat and straight with clear visibility. The road surface was dry. There is a footpath on the left-hand side of the road as one travels from Rivière du Rempart in the direction of Gokhoola. The footpath is roughly 1.10 meters wide.
The foregoing description is made from the perspective of the direction of travel from Rivière du Rempart to Gokhoola. The Board also records that vehicles are driven on the left in Mauritius.
The respondents called Mr Bhantooa, a representative of the Traffic Management and Road Safety Unit, as a witness to prove that there was a bus stop on the left-hand side of the road in the vicinity of the point where the accident occurred. He produced a plan prepared on 18 May 2007 (before the collision) and another plan prepared in June 2017 (after the collision). Both plans recorded that there was a bus stop on the left-hand side of the road which is at the start of a sugar cane track. A person, such as the first named respondent, alighting from a bus at that stop would be on the footpath.
There is a bus stop on the right-hand side of the road in the vicinity of the point where the collision occurred.
On Monday 8 March 2010 the first respondent had been at school in Rivière du Rempart and it is agreed that, unaccompanied, he was on his way back home from school. It is also agreed that he had just alighted from a bus from Rivière du Rempart, which meant that it was driving in the direction of Gokhoola. The first respondent's home is on...
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