Ag v Voysey (SCA 12 of 1995) [1996] SCCA 5 (5 July 1996)

ATTORNEY GENERAL VIS RAY VOYSEY DENISE VOYSEY ELIZABETH VOYSEY STEVEN VOYSEY 1ST RESPONDENT 2ND RESPONDENT _ 3RD RESPONDENT 4TH RESPONDENT Before Goburdhun, P .• Silungwe and Ayoola. JJ. A. Mr. A. Fernando for the Appellant Mr. B. Georges for the Respondent .: ..• - JUDGMENT OF SILUNG~E. J. A. This is an appeal against a ruling of the Supreme Court wherein it was held that the action of the plaintiffs, now the respondents, was not time-barred. The defendant and the plaintiffs in the Court below are now the appellant and the respondents, respectively, and will henceforth be referred to as such in this judgment. It is not in dispute that one 2nd Lt. Mark William Voysey, now deceased, was at the material time employed by the Government of the Republc of Seychelles as an Air Force Pilot; and that on August 30, 1987, being a duty officer, and whilst he was piloting a helicopter belonging to the Government aforesaid on a mercy mission to La Digue in response to a request from the hospital, he died when the helicopter crashed off Praslin. On August 8, 1994, nearly seven years after the -2- fateful event, the respondents (being the father, the mother, the and wife and the son, respectively, of the deceased as heirs ayants) filed a plaint in the Supreme Court against the appellant for the recovery of damages and pleaded, inter alia, as follows:- for plaintiffs the "4. The liable because faulty knowing) with the defendant was dangerous. aver that the defendant is of the deceased whether crashed because it was no way of work of the deceased the (which or plaintiffs "have the because helicopter death the 5. As a result of the death of the deceased the plaintiffs damage as suffered particularised hereunder:" have loss and In a statement of defence, however, the appellant made, inter alia, the following averment: "(6) states that:- By way of further answer the Defendant (i) this action cannot be maintained in court as it is prescribed under the Civil Code of Seychelles." This additional averment was denied in an amended plaint. The next thing that occurred was the raising by the appellant of the plea in limine litis and the hearing of submissions thereon from both sides. The Supreme Court then ruled against the appellant on the ground that the cause of the helicopter crash was ascertainable "only after a technical inquiry which the defendants were obliged to hold who alone could initiate a technical investigation." conclusion, it was held that the respondents' delay In 1n instituting proceedings in this case had "been caused by the absence of an official cause for the crash, which the defendants were obliged to provide and which was obviously within their knowledge. They cannot now -3- take advanta!5e of the situation and plead prescription." As regards the issue of the alleged concealment, the Supreme Court held that concealment involves a deliberate or reckless act with an element of fraud. The Court could not, however, prevent accident. find any element of fraud or a deliberate attempt to the respondents from knowing the cause _ of the The predominant ground of appeal as canvassed by Mr. Fernando, learned counsel for the appellant, is that this is a clear case of a five year prescriptive ~eriod which falls within provisions which stipulate that - the of Article 2271 of the Civil Code and (1) All "2271 subject five 2262 and 2265 of the Code." rights prescription except to years as of after provided action shall be period of in Articles a (Article provides for a twenty year prescription as regards real actions in respect of ownership of, and interests in, land; while Article 2265 relates to a ten year prescription concerning a title acquired for value and in good faith). Mr. Fernando's resolute stand is that the five year prescription began to run from August 30, 1987 when the helicopter crashed and killed the deceased; and consequently that the entry of the plaint on August 8, 1994, occurred long after the requisite prescriptive period had expired. This is so, he argues, because the right of action arose when the accident and the deceased's death took place. For his part, Mr. Georges contends that the respondents could not have known the real cause of the crash in the absence of an accident report following a technical enquiry which the appellant alone was obliged to institute. -4- It was not until the appellant, by letter dated October 15, (Exhibit 5 ) "disclosed for the first time", after much prompting (by the respondents' learned counsel, that the weather on the night of the accident had been bad and that the helicopter had not been "equipped for instrumental flight conditions", though this might not have been the reason for the accident. Additionally, the appellant, by letter dated December 9, 1993. furnished further information in these terms: there is no indication that there "Whilst a was it is not possible to say with absolute certainty that there was not either." malfunction, The central issue in this case is not whether the respondents were justified to await receipt of an official report as to the cause of the helicopter crash before they could commence civil action against the appellant, but rather when did the cause of action arise; in other words, when did time begin to run against the respondents? In determining when the cause of action arose in the instant case, my mind is drawn to Article 1382(1) of the Civil Code which stipulates that - Every "1. damage it occurs to repair it." whichever of man that causes to another obliges him by whose fault act This article defines fault (vide paragraph 2 thereof) as meaning "an error of conduct which would not have been committed by a prudent person in the special circumstances in which the damage was positive act or caused. ,t . . an omlsslon. It may be the result of a Clearly, the act complained of here is the helicopter crash which culminated in the deceased's death; and the resultant damage is the loss which the respondents suffered thereby and for which the appellant -5- was allegedlY liable. Mr. Geor~es hit the nail on the head when he stated this (at page 71 of the record of appeal) during argument in the Court belo~: I is s av for the liable really "r defendant deceased. more on defendant dama~e. plaint. information for bring out in eV. Ldence." averment in paragraph 4 is that the o_f the the death do not need to aver any I aver the crash, I aver the then I aver loss and need to do in the to any more to why I aver there is liability That is left up to me to then That I as death. liable is I need that was give and not all the do There can thus be no doubt that the cause of action here arose on August 30, when the fateful event occurred. In the course of its ruling, the Supreme Court made reference to section 120 of the Louisianna Civil Law Treatise (Vol. 12) which states that: "Where the prescription that would circumstances. the a The of action jurisprudence commission to an sue a sustaining " on both to is begins plaintiff reasonable of damage is not immediately apparent, run only from the time conscious or aware, as similar under tort and damage." applicable rationale where be appears a tort does not per se give rise To entitle one to in tort, must allege and prove the loss or damage as a result therefrom person the of damages. that the he to In the circumstances of this matter, it cannot conceivably be argued that the damage was "not immediately apparent" as the contrary was the case. The respondents were "conscious or aware" of both the delict (negligence i.e. fault) and the damage that they had consequently suffered. The effect of this is that the respondents should have instituted their action against the appellant within the prescriptive period "\ -6- of five years; and that the waiting for the official information on the helicopter crash was done at their peril since they had obviously known all along that their case lay in negligence. The official report was seemingly intended to confirm the respondents' case. In any event, the fact that a plaintiff might have a weak, though not a helpless or frivolous case, cannot per se preclude him/her from prosecuting it. I would venture to say that where a prospective plaintiff is not certain whether or not he/she can maintain an action in court which action is subject to prescription he/she should take appropriate steps to preserve his/her rights by, for instance, commencing the action, even if this might necessitate requesting the Supreme Court Registry to delay service of the court process where this is legally permissible. I am satisfied that the action by the respondents was time-barred. The appeal succeeds and the ruling of the Supreme Court is set aside. The record of appeal shows that the respondents have been paid some compensation by the appellant which is obviously regarded as inadequate. The. Government may consider that this is a suitable case for it to make an appropriate ex gratia payment, of course, taking into account the compensation already paid. I will make no order as to costs. Delivered on the \s\- day of tf\~ 1996. (A. M. SILUNGWE) OF APPEAL