University of Technology, Mauritius v Gopeechand
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge |
| Judgment Date | 08 October 2018 |
| Neutral Citation | [2018] UKPC 26 |
| Docket Number | Privy Council Appeal No 0069 of 2017 |
| Court | Privy Council |
| Date | 08 October 2018 |
[2018] UKPC 26
Privy Council
Michaelmas Term
From the Supreme Court of Mauritius
Lady Hale
Lord Kerr
Lord Wilson
Lord Hodge
Lord Lloyd-Jones
Privy Council Appeal No 0069 of 2017
Appellant
Ravindra Chetty SC
(Instructed by Axiom Stone)
Respondent
Katherine Deal
Emily Moore
(Instructed by Hunchun Gunesh)
Heard on 12 July 2018
The University of Technology, Mauritius (“UTM”) appeals with the permission of the Supreme Court of Mauritius (“the Supreme Court”) against a judgment of the Supreme Court which held UTM liable in damages to the respondent, Ramraj Gopeechand (“Mr Gopeechand”). The claim for damages, which was pleaded as a breach of contract, was for injuries which he sustained in a road traffic accident on 9 March 2007 when he was being driven home after work by another employee of UTM, Mr Khemraj Singh Ramtohul (“Mr Ramtohul”). The accident was the result of “faute” (or negligence) on the part of Mr Ramtohul, who was criminally prosecuted as a result and had to pay a fine.
At the time of the accident, section 18 of the Labour Act 1975 imposed an obligation on an employer to provide a worker with transport between his place of work and his usual place of residence, if he lived more than three miles from his usual place of work, or to finance his use of public transport if a bus service was available. UTM operated a system by which employees could apply to its office superintendent for the use of UTM vehicles, including to get home after work. UTM had an application form in which the applicant requested the use of a vehicle and specified both the reason for which a vehicle was required and the proposed itinerary. The applicants submitted the form to the office superintendent, who ascertained if transport was available, checked by an employee in the finance department and approved by the office of the UTM registrar. On the afternoon of 9 March 2007 Mr Gopeechand and a colleague, Mr Veeru Botia, applied for use of a UTM vehicle using this form and their application was approved. The form, which in the proceedings in this case has been described as Form A, is the only documentary evidence of the existence of a contract between Mr Gopeechand and UTM.
Mr Gopeechand raised his action for damages in the Intermediate Court of Mauritius. In his proecipe, or claim form, he pleaded that UTM provided him with transport under contract or custom and that UTM “as employer and provider of the transport [had] failed to convey him safe and sound to his place of residence and therefore committed a breach of contract”. In his answers to demand of particulars Mr Gopeechand explained that there was no express provision in his contract of employment which required UTM to provide transport but that it was its accepted practice to provide transport when employees worked into the evening and that UTM had provided the car under a verbal (ie oral) arrangement. In its pleadings UTM denied that it was in breach of contract and asserted that it was not bound to provide him with transport under his contract of employment.
Mr Gopeechand's claim went to trial before the Hon Ms A Ramdin, Vice President of the Intermediate Court (“the Magistrate”). Mr Gopeechand alone gave oral evidence and produced documentation and medical reports in support of his claim for damages. No evidence was led on behalf of UTM. In his brief submissions counsel for Mr Gopeechand founded on Form A as evidence of a contract for transport between UTM and his client, pointing out that it specified the passengers, the time and the itinerary.
The Magistrate in a judgment dated 30 May 2014, held that there was a contract of transport by which UTM undertook to provide transport to Mr Gopeechand and Mr Botia. She treated Form A not as a written contract but as a “commencement de preuve par écrit”, ie as admissible evidence of both the existence of the contract and its terms. Such evidence can be supplemented by other evidence, such as that which Mr Gopeechand gave. In the light of all of the evidence before her, the Magistrate held that Mr Gopeechand had applied for transport after working hours in his capacity as employee and UTM had contracted to provide that transport. She held:
“… the employer UTM was under a duty to provide safe transport to the plaintiff as the latter worked overtime and the plaintiff was still under the employer's care until he reached his place.”
She concluded that Mr Gopeechand had proved his case of breach of contract.
It is not clear from the Magistrate's formulation (above) whether she had concluded that the contract imposed strict liability on UTM to carry Mr Gopeechand safely to his home or a less stringent form of liability, such as an obligation that the driver, as UTM's agent, would exercise reasonable care in his driving. But that was not an issue at the trial, because, as the Board has observed, it was not disputed that Mr Ramtohul had been guilty of careless driving.
UTM appealed to the Supreme Court against the Magistrate's order that it pay damages and costs to Mr Gopeechand. In a judgment dated 23 May 2017 the Supreme Court (Judges A F Chui Yew Cheong and O B Madhub) concluded that the Magistrate had not come to the wrong conclusion when she held that UTM had been under a duty to provide safe transport to Mr Gopeechand and that it had failed to do so. UTM's arguments before the Supreme Court were (a) that it did not breach the parties' contract of employment which did not extend to the provision of transport, (b)...
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