In court this week
In a landmark case this week, the Supreme Court presided over by Judge Perera, awarded R.77,000 damages to the family of Robin Jourdan Henriette, the young man who was tragically gunned down by police officers at point blank range while unarmed and defenceless at Morne Blanc, Port Glaud, on the 12th January 2005. The deceased’s family filed a delictual claim before the Supreme Court claiming substantial damages for pain and suffering, grief, mental anguish and bereavement. The government admitted liability for the death in Court and the Judge considered the issue of damages only.
The 2nd plaintiff is the mother of the said de cujus while 3rd and 4th plaintiffs are his minor children. The 5th and 6th plaintiffs are brothers of the deceased, the 7th plaintiff is a half brother, while 8th, 9th, 10th and 11th plaintiffs are his sisters. The 12th plaintiff is the common law wife of the deceased person. The Plaintiffs brought the action against the Government of Seychelles and the Commissioner of Police in their capacity as heirs, legal representatives and ayants droits of the deceased person.
The Judge remarked, “Liability being admitted, the assessment of damages in a case of this nature is dependent on whether the de cujus dies instantly or sometime after the fatal injury. In this respect, Sauzier J in the case of Elisabeth v. Morel & Ors (1979) S.L.R 25, cited Le Tourneau, Le Responsabilite Civil 2nd Edition paragraphs 171, 172, 173 and 174 –
“In law, the heirs of a deceased are entitled to claim in that capacity, damages for prejudice, material and moral, suffered by the deceased before and until his death and resulting from a tortious act whether he had, or had not commenced an action for damages in respect of the tortious act before his death, provided he had not renounced it. When death is concomitant with the injuries resulting from the tortious act, the heirs cannot claim in that capacity and may only claim in their own capacity as in such a case, the cause of action of the deceased would not have arisen before he died”.
The 1st plaintiff claims in her capacity as mother of the deceased person, and the Administrator of his estate. The deceased was a self employed farmer. There is no evidence regarding his income. However, he was 25 years at the time of his death. He had a common law wife and two children to support. As regards loss of expectation of life, although Sauzier J in the case of De Sylva & Ors v. D’offay (1970) S.L.R. 99 made an award, the Supreme Court of Mauritius sitting in appeal over that case, set it aside on the ground that there was no juridical foundation. The quantum of damages payable would therfore be limited to the prejudice caused to the deceased by way of pain and suffering, anxiety arising from his impending death, and shock. In this respect, a sum of Rs.50,000 is claimed. I consider this to be a reasonable amount in all the circumstances of the case. Accordingly a sum of Rs.50,000 is awarded. From this amount, the 3rd and 4th plaintiffs the two minor children as heirs, will be entitled to Rs.25,000 each. The amounts to be deposited in minors’ accounts.
The mother of the deceased also claims in her own capacity as the 2nd plaintiff in respect of distress, anxiety and shock, a sum of Rs40,000. She is 58 years old. She did not see the shooting, but saw her son in hospital. She testified that when she heard that her son had died, she suffered shock. This would undoubtedly be the natural feeling of a mother. In the circumstances I consider a sum of Rs10,000 to be a suitable award.
As regards the other plaintiffs, the 5th and 6th plaintiffs and 8th to 11th plaintiffs are full brothers and sisters of the deceased person. They testified that they suffered mental pain and grief consequent to the sudden death of their brother. They claim Rs30,000 each. These brothers and sisters are all above 30 years, and are living independently. However the prejudice they suffered could not be as much as that suffered by the mother. As was held in Choonia v Pitot (1914) M.R.53, the Court in making awards in these circumstances should bear in mind that the claims should not be made “an occasion of coining profit out of an affliction and turning family bereavement into pecuniary advantage”. Taking all factors into consideration, I award nominal damages in a sum of Rs2000 each to the 5th, 6th, 8th , to 11th, plaintiffs. The 7th plaintiff Rerens Hortere is a half brother of the deceased. He did not appear in Court on the hearing day to testify. Hence no award is made.
Judge says “concubine” is also entitled to damages in law!
As reward the 12th plaintiff, the common law wife of the deceased, the Courts in Mauritius adopted a strict approach in the case of Naikoo v. Societe Heritiers Bhogun (1972) M.R.66, the Court held thus –
“It seems clear that a concubine is not entitled to normal damages as such. As for material damages the question is not free from difficulty, but the better opinion seems to be that the concubine cannot recover such damages, not because concubinage is illegal or immoral, but because it is not a relation protected by law. In other words, the action of the concubine fails not because it is a moral fault, but because it is a legal fault; the parties by their own choice have placed themeselves outside the protection which the law offered to them within the marriage bond”.
Sauzier JA, in the case of Hallock v. D’offay 3 S.C.A.R (Vol 1) Page 295 explained the reluctance of the Courts in
“In
The learned Justice of Appeal, in his dissenting judgment exercised equitable powers under Section 5 of the Courts Act, as the law in
This Court had an opportunity in the case of Marthe Albert v. Kevan Hoareau & Or (C.S. 78 of 1992) (unreported) to consider the liberal view of Sauzier JA in the Hallock case (supra) which was based on division of property, to a delictual claim filed by the common law wife of a deceased person. The attention of Abban C.J. (as he then was) was drawn to the Administration of Justice Act 1982 (U.K) which amended the Fatal Accidents Act 1882 – 1976, and made provisions for a cohabitee to be treated as a dependent who could claim compensation from a tortfeasor. Section 3 of that Act, defined a “dependent” as any person living with the deceased in the same household at the time of the death of the deceased. It was also submitted by Counsel for the plaintiff that in
“I must confess that I almost gave in to the the request of Learned Counsel for the plaintiff. But after giving further thought to the matter, I had to decline the invitation. I strongly felt that such radical departure from the law, as it stands now in
Accordingly, the claim of a cohabite, who had lived in a common law relationship with the deceased for a period of 12 years, and who had been totally dependent on him was dismissed. However, could this reluctance to deviate from the rigid application of French principles in claims for moral damages in delictual cases be perpetuated in view of Article 32 of the Constitution which provides for protection of families. The prescribe derogations are marriages between persons of the same sex, and persons within certain family degrees. Under that fundamental right, the state undertakes to promote the legal, economic and social protection of the family. No distinction is drawn between families composed of married persons and persons in a common law relationship. The State has already provided legal protection to a co-habitee as a dependant for benefits under the Social Security Act (Cap 225), and under the Tenants’ Rights Act (non abolished, save for limited purposes). There may be a justification to insist on legislation in respect of property rights accruing to a cohabitee as provisions of the Civil Code would need amendment. However, when moral damages are claimed in a delictual action in respect of grief and sorrow, mental agony, anxiety, and shock, there is no legal or moral jurisdiction to draw a distinction between a surviving married spouse, and an unmarried spouse. It is of interest that the word “dommage” in Article 1382 of Code Napoleon (the word “damage” in the same Article in the Civil Code of Seychelles) was considered in the case of Gopal v. Mooneeram 1936) This view that moral prejudice does by itself give rise to damages, independently of material damage, and moral damages should be assessed by the Judge rather arbitrarily if need be, but without allowing family bereavement to be made an occasion of coining profit, was followed with approval in the case of Rohimun v. K. Gopal (1937) M.R.100.
Hence I am fortified in the view that a conbubine should be entitled to moral damages even where material damage has not been established. Accordingly I award the 12th Plaintiff, a sum of Rs5,000 as moral damaged for distress, anxiety and shock.
Judgment is accordindly entered in favour of the plaintiffs, save the 7th plaintiff, in a total sum of Rs77,000, together with interest and costs. The plaintiffs were represented by lawyer Antony Derjacques who has expressed disatisfaction with the overall sum awarded and has said that his clients intend to appeal to the Seychelles Court of Appeal against the figure. Mr. Ronny Govinden represented the defendants.