Sakoor Dawood Patel, Mrs Bilkiss Banu Patel and Mohamed Patel v Anandsing Beenessreesingh and Sicom Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumption |
| Judgment Date | 23 May 2012 |
| Neutral Citation | [2012] UKPC 18 |
| Date | 23 May 2012 |
| Docket Number | Appeal No 0079 of 2011 |
| Court | Privy Council |
[2012] UKPC 18
Privy Council
Lord Hope
Lord Brown
Lord Mance
Lord Dyson
Lord Sumption
Appeal No 0079 of 2011
Appellant
Yanilla Moonshiram
Mithilesh Lallah
Subash Lallah SC
(Instructed by MA Law (Solicitors) LLP)
Respondent
Antoine Domingue SC
(Instructed by Edwin Coe LLP)
Heard on 26–27 March 2012
Litigation about personal injuries, generally arising out of traffic accidents or accidents at work, is likely become an increasingly important part of the work of the courts of Mauritius as it has in other jurisdictions. There is, however, only limited authority on the computation of damages in Mauritius, and none that deals with the matter at the level of general principle.
On 13 August 2002, Shabana Patel was a passenger in a vehicle driven by Miss Kaleena Beenessreesingh, when it was involved in a collision with another car near Bambous in Mauritius. She was seriously injured. Miss Mannick, another passenger travelling with her, was killed. The present actions were brought by her father in his capacity as her provisional administrator, and by her father, mother and brother in their personal capacities. The first Defendant, Anandsing Beenessreesingh, was the owner of the car, and the second Defendant is his liability insurer. The third and fourth Defendants were respectively Mr. Koenig, the driver of the other car, and Mr. Koenig's insurer. The trial judge found that the collision was entirely due to the negligence of Miss Beenessreesingh, and that finding is now accepted. The Second Defendant ultimately accepted liability under the policy shortly before the trial. It follows that the third and fourth Defendants are no longer involved in these proceedings. The sole outstanding issues are the quantum of damages awardable against the first Defendant and the question what if any interest should be awarded upon those damages.
The events of August 2002 have had tragic consequences for Shabana. At the time of the accident she was eighteen years-old. She had recently passed her baccalauréat. She had been offered places to read law by four distinguished universities in the United Kingdom in addition to a place at Nantes University, which she had accepted. A bright future seemed to lie ahead of her. This prospect is now almost certainly dashed. She has sustained serious brain damage and multiple injuries to her head, collarbone and pelvis. For a month after the accident she remained in a deep coma, and she was semi-comatose for four months thereafter. Throughout this period she was in intensive care, dependent on mechanical life support. The evidence of Dr. May, the neurosurgeon who has treated her in Mauritius since November 2002, was that after recovering consciousness she was in need of "constant rehabilitation". Facilities for providing it are not available in Mauritius. She was therefore taken in February 2003 to India, where she spent two years, from February 2003 to January 2005, in a treatment and rehabilitation facility at the Christian Medical Institute at Vellore. During this period, she recovered the ability to swallow semi-solid foods and to breathe without the aid of life-support equipment. A further period of a year was spent at Vellore between January 2006 and February 2007.
Her condition and prognosis at the time of the trial in 2008 was described by the Judge on the basis of Dr. May's evidence as follows:
"However as at today, six years after the accident, she is still 100% incapacitated and dependent. She needs twenty-four hour care and is unable to do any single thing by herself, she has to be fed, bathed, cleaned and needs permanent care and attention. Medically speaking, there is not much hope that she will make a complete recovery and according to Dr May, the neurosurgeon who is treating her in Mauritius, it is difficult to envisage that she will ever be able to completely take care of herself. The maximum physical improvement in the long term, as to which there is only a hope, is that she is able to stand up, walk a few steps and say a few words, express herself and respond better. She has, according to the doctor, a good level of understanding, a good memory and she remembers people and previous experiences, she understands much more than she can express. The discrepancy between what she understands and what she can express, is a great distress to her. However her mental level cannot be tested because she must improve physically in the first place so that she is physically able to use her mental development. In fact, according to her mother, Shabana knows in what state she is and suffers when she sees herself in that condition. This stresses her, at night she is often found staring at the ceiling and unable to sleep."
As to the future, Dr. May's evidence was that Miss Patel would require continued rehabilitation if she was to avoid a deterioration of her current clinical condition and to have any prospect of even the limited degree of improvement envisaged in the judge's summary. Because of the need to travel to India for this purpose, and the time required for her to adapt to her new surroundings after travelling, the most satisfactory course was to take her to India for rehabilitation for a continuous period of six months in each year. It is impossible to say how long this will continue to be necessary, but it is likely to be a considerable period.
On 5 September 2008, Mrs. Justice Mungly-Gulbul gave a combined judgment in the present action and two other actions arising out of the same collision. In the present action, she awarded a total of Rs. 23,195,727 in damages. She declined to award statutory interest on that sum. On appeal, the Court of Appeal reduced the award of damages to a total of Rs. 9,850,000. They affirmed the Judge's decision about interest.
The fundamental rule of Mauritian civil law, derived from French jurisprudence, is that civil responsibility for personal injury extends to all pecuniary prejudice suffered by the claimant which would not have been suffered but for the injurious act: Le Roy, L'évaluation du préjudice corporelle, 19 th ed. (2011), para. 3. While there is no general duty of mitigation of the kind recognised by English common law, a loss will not be treated as flowing from the delict so far as it arises from extravagant choices due solely to the personal will of the victim: Trib. Chartres, 28 oct. 1938, D.H. 1939, 31.
Damages for personal injury are likely to fall under one or more of four main heads, each of which will need, in the generality of cases to be separately considered and quantified. They are (i) material (i.e. pecuniary) damage in respect of (a) expenditure occasioned by the injury up to the date of judgment, (b) future costs of care and treatment and (c) loss of earnings both before and after judgment; (ii) moral damages, representing physical and mental suffering, loss of amenity, and, more generally, what the Court de Cassation has recently called "loss of quality of life and of its normal pleasures": Cass. 2 e civ., 28 mai 2009. It is important to note that in contrast to English common law, many civil law systems, including that of France which is the foundation of the law of Mauritius, allow the recovery of moral damages by a limited category of persons close to the principal victim who have been seriously affected by the latter's injury. The case-law of Mauritius to which the Board has been referred suggests that practitioners and judges have not always been as careful as they should be in distinguishing between these heads. There has been a tendency to make global estimates covering more than one head. In the Board's opinion, this can only cause confusion, by making it difficult to know how any particular award has been arrived at. It can also, as this particular case demonstrates, lead to important parts of a claimant's loss being overlooked or understated and to relevant evidence not being put before the court.
In their original plaint served in September 2003, the Plaintiffs claimed Rs. 20,000,000 on behalf of Shabana. This was later particularised as representing "damages for loss of her prospect of life and that she will be permanently disabled and unable to lead a normal life and would for the rest of her life be handicapped." This claim was capable of covering moral damages and arguably all future material losses but not, on the face of it, material losses to date. There were further claims for Rs. 5,000,000 each by Mr. And Mrs. Patel personally, and for Rs. 1,000,000 by their son Adil. These claims were later particularised as being for moral damages. It must have been obvious to the Defendants that the Plaintiffs would be claiming expenditure occasioned by Shabana's injuries. But this was not unequivocally confirmed, nor was there any attempt to quantify that expenditure, until Mr. Patel gave his evidence in chief and produced a schedule of such expenditure, identified at the trial as "P20". No objection was taken at the time to the introduction of P20, nor to Mr. Patel giving evidence by reference to it. Objection was, however, taken in the course of final submissions, and as a result that the Plaintiffs applied for and received leave to amend their plaint to add a claim for Rs. 20,000,000 for "material loss and expenses defrayed in respect of Shabana Fatema Shakoor Patel", both past and future. Even after the amendment, no attempt was made to formulate a claim for loss of future earnings, notwithstanding that the losses under this head in the case of a talented young woman at the threshold of a promising legal career would on the face of it have been very...
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