Davidson & Ors v Cerf and Surf Properties Ltd (CS 41 of 2014) [2017] SCSC 189 (2 March 2017)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS41/2014 [2017] SCSC 189 1. Ian Davidson 2. Carolyn Davidson 3. Melissa Davidson 4. Catherine Davidson Plaintiff versus Cerf and Surf Properties Ltd Defendant 1. Sea Fever Charter 2. Dominique Marie Third Parties Heard: Counsel: 21 January 2016 – 11 January 2017 Mr. Pesi Pardiwalla, Senior Counsel and Ms. Tamara Christen for Plaintiff Mr. Bernard Georges for Defendant Mr. Basil Hoareau for First Third Party Mr. Nichol Gabriel for Second Third Party Delivered: 2 March 2017 JUDGMENT M. TWOMEY, CJ [1] On the 8 February 2013, at around 10 pm, the vessel Plaisance set off from Roche Caiman, Mahé to Sainte Anne Island with staff and guests of the Sainte Anne Resort. Its skipper was Dominique Marie who was assisted by Mervin Battin, a boat boy. At around the same time, a larger vessel, a catamaran, the Cerf Resort 1, skippered and navigated by Stephan Barreau left the Marine Charter pier at Mahé to travel to Cerf Island to collect staff and passengers. [2] At some point during the journey of the two vessels, the Cerf Resort 1 collided with the rear and starboard side of the Plaisance causing extensive damage and injury to three passengers. One of these passengers Rebecca Davidson (the Deceased) died within an hour of the accident from severe injuries. [3] The pathologist, Maritja Zlatkovic, in her report outlined the following injuries sustained by the Deceased: contusion of the frontal lobes of the brain, fracture of the cervical spine and 350 mm of blood in the left pleural cavity, fractures of 2, 3, and 4 anterior ribs, fractures of the left posterior ribs 2 to 8, further fractures of the 2, 4, 5 and 6 left anterior ribs, bilateral sub pleural haemorrhage and a focal lung haemorrhage, rupture of the pericardium, rupture of the heart with a fragment of the heart found in the left thorax, 1200ml of blood in the left and right abdomen, multiple ruptures of the right lobe of the liver, two linear ruptures of the spleen and a focal sub capture of the left kidney. She concluded that the Deceased died of polytrauma (multiple injures) hypovolemic shock (severe blood loss) and fracture of the cervical spine (broken neck). [4] In a criminal trial arising from the incident, one Stephan Barreau was found guilty of the manslaughter of the Deceased arising from his “omission amounting to culpable negligence” (see section 192 of the Penal Code). At the time of the incident Stephan Barreau was employed by the Defendant. [5] The Deceased’s father, mother, and two sisters claimed for their loss arising from her death. The First Plaintiff, the father of the deceased claimed SR1, 788,196.86 consisting of pecuniary damage and moral damage, the Second Plaintiff, the mother of the Deceased SR 208,160.53, also consisting of pecuniary and moral damages, the Third Plaintiff, a younger sister of the Deceased, SR 126,663.08 consisting of pecuniary and moral damages and the Fourth Plaintiff, the youngest sister of the Deceased SR100, 000 for moral damages. [6] As this matter was part heard by my brother Karunakaran, I accepted the request of the parties to adopt the evidence adduced and to continue the hearing and deliver a decision. [7] While liability for the accident is not denied by the Defendant, it has argued that it is only contributorily responsible for the accident as at the time of the incident the Plaisance, owned by St. Anne Resort did not have an anchor light functioning, and this contributed to the collision between the two vessels. It is also the Defendant’s submission that the Plaisance, although owned by St. Anne Resort is operated by the First Third Party. For this reason, Dominique Marie, the Second Third Party in this action and the skipper of the Plaisance on the night of the incident and an employee of the First Third Party, are brought as parties to this action by the Defendant. It is the Defendant’s case that the two Third parties share responsibility for the accident. [8] Learned Counsel for the Defendant, Mr. Georges did not call any witnesses but relied on a statement of agreed facts and evidence adduced at the criminal trial of Stephan Barreau. [9] Walter Larue testified on behalf of the First Third Party. He stated that the First Third party had never operated the Plaisance. He stated that he owned two other boats, Bel Air and Exora, which on the day in question were doing transfers to and from St. Anne for staff of the resort. He stated that there was no contract with St. Anne Resort, to operate the Plaisance. He testified that if Dominique Marie, the Second Third Party was skippering the Plaisance on that fateful night he was doing so not as an employee of the company but on a frolic of his own for which he was subsequently suspended and for which the First Third party is not liable. [10] It must be pointed out that after the Plaintiffs had closed their case, the Defendant moved the Court for an amendment to his Statement of Claim against the Third Parties to the effect that the Plaisance was owned or operated by the First Third Party. [11] The motion was resisted by the First Third party on the grounds that the amendment would prejudice it and change the action from one nature to the other. I allowed the amendment and reserved the reasons for so doing in my decision. Subsequently, Learned Counsel for the First Third Party conceded to the amendment on the admission of the Defendant that the vessel Plaisance was not owned by the First Third Party but rather by Sainte Anne Resort. I do not therefore have to address this issue. [12] The matter of the correctness of Third Party proceedings in Seychelles was also raised by the First Third Party in its closing submissions but as this matter was settled by the trial judge in a ruling on 5 August 2014, it would be improper at this stage for this Court to stand as a court of appeal against a decision of this very court albeit by a different judge. I find this issue settled at this level and find it unnecessary to consider any further the submissions on this issue. [13] In so far as the apportionment of fault is concerned, I have considered the evidence in the criminal trial of R v Barreau (Cr. Side 13/2013) adduced in the Statement of Agreed facts. [14] Article 1383(2) of the Civil Code of Seychelles provides: “The driver of a motor vehicle which, by reason of its operation, causes damage to persons or property shall be presumed to be at fault and shall accordingly be liable unless he can prove that the damage was solely due to the negligence of the injured party or the act of a third party or an act of God external to the operation or functioning of the vehicle. Vehicle defects, or the breaking or failure of its parts, shall not be considered as cases of an act of God.” [15] The strict liability of drivers of motor vehicles in respect of other persons is therefore qualified. Learned Counsel for the Defendant, Mr. Georges relying on the case of Jorre de St. Jorre v Bouchereau and Or (1980) SLR 99 has rightly pointed out that where two motor vehicles collide the presumption of fault arises for and against both. It is his submission that the fact that the Plaisance did not have functioning navigational lights contributed to the Cerf 1 colliding into it. [16] I have focused my attention in particular on the discrepancy in the evidence of the Defendant and the two Third Parties. I note that all the prosecution witnesses at the criminal trial make a distinction between what they term navigation lights and the anchor light. The Second Third Party; the boat boy, Mervin Battin; the supervisor and a skipper by profession Alexandro Intermaggio and Mr. Charles Simeon the night duty manager of the Saint Anne Resort were all adamant that navigation lights (running lights or operational lights) consist of the red port side and green star board lights. The other lights of the boat namely the anchor light, the cabin light and the search light are not navigation lights and do not have to be switched on when navigating. [17] All these witnesses were also adamant that both navigation lights were in perfect working order. Mr. Intermaggio explained that the navigation lights are run on one switch and the anchor light on a different switch. Mr. Simeon stated that as the operational lights were functioning and only the anchor light not working, he had taken the decision to operate the Plaisance. The Second Third Party was categorical that he would not have taken the boat out if the navigation lights were not working. [18] On the other hand there is evidence that navigation lights include the operational lights and the anchor light. Stephan Barreau called the anchor light the all-round white light. [19] The two nautical experts, Captain Khan a master mariner and Captain Valmont, the harbour master both stated that the operational lights on a vessel of less than 12metres are the star board light, the portside light and all-around white light. [20] It would appear that a certain amount of confusion has arisen from the word anchor in the phrase anchor light. I gather that when a ship drops anchor it has an anchor light to indicate where it is anchored. I have also looked at the definition of the phrase in the online nautical dictionary (http://www.seatalk.info/cgi-bin/nautical-marine-sailing- dictionary). In that dictionary an anchor light is defined as : “A single white light showing 360 degrees displayed high in the rigging or at the masthead at night when a vessel is at anchor.” [21] To add to further confusion, Rule 25 of The International Regulations for Preventing Collisions at Sea (COLREGS) provides in relevant part (a). A sailing vessel underway shall exhibit: (i). sidelights; (ii). a stern light. (b). In a sailing vessel of less than 20 metres in length the lights prescribed in paragraph (a) of this Rule may be combined in one lantern carried at or near the top of the mast where it can best be seen. (c). A sailing vessel underway may, in addition to the lights prescribed in paragraph (a) of this Rule, exhibit at or near the top of the mast, where they can best be seen, two all-round lights in a vertical line, the upper being red and the lower green, but these lights shall not be exhibited in conjunction with the combined lantern permitted by paragraph (b) of this Rule. [22] However, section 46 of the Harbour Act provides: (1) All mechanically propelled craft when moving in the harbour at night shall carry a white light and side lights or a tricoloured lantern showing red, white and green over the port side, the bow and starboard side respectively (emphasis mine). [23] The provisions of the Harbour Act are the applicable rules insofar as the operational lights for a vessel moving in Victoria Harbour is concerned. It would be unusual to say the least that the Plaisance which was not fitted with an all-around white light plying the harbour waters would have passed the seaworthiness examination by the Seychelles Maritime Safety Administration. I can only conclude that for all intents and purposes the anchor light and the all-around white light refer to the same light. It was accepted by the prosecution witnesses that the Plaisance did not have a functioning all-around white light. It was therefore a delictual act on the part of the skipper and the owner or operator of the vessel. [24] However, the Plaisance was rear ended by the Cerf 1. Stephan Barreau, the skipper of the Defendant admitted that he had taken alcohol and smoked marijuana. He says neither affected his navigational skills. He also admitted that his GPS slid from him and he reached across to retrieve it. He also admitted going at a fast speed. He was doing about 25-27 knots when the boat’s maximum speed was about 35 knots. He had no boat boy or look out to assist him while skippering. [25] As was pointed out by the Court of Appeal his omission was monumental : “When the relevant proximate time is looked at, the skipper of Plaisance had passed the intersection point and was directing its attention to the course ahead. Appellant was coming from behind at a speed of 25-27 knots, had failed to see a white object in front of him, which he however did see after impact. If he saw a boat after impact, he could have seen it before and should have seen it before. That he did not do. Also, in the minutes and seconds prior to the collision, there was a duty on appellant, if his GPS was slipping away, to slow down or stop for the purpose of picking it up. At that moment in time, he left Cerf 1 basically without control. The manner in which he says he was flung and Cerf 1 hit Plaisance twice shows the degree of negligence with which he was operating his catamaran.” [26] Article 1384 (3) of the Civil Code provides: “Masters and employers shall be liable on their part for damage caused by their servants and employees acting within the scope of their employment. A deliberate act of a servant or employee contrary to the express instructions of the master or employer and which is not incidental to the service or employment of the servant or employee shall not render the master or employer liable.” [27] The Plaintiff has relied on the conviction of Stephan Barreau for the manslaughter of the Deceased and the provision of Article 1384(3) to establish the negligence and vicarious liability of the Defendant. In Solo v Payet (unreported) CS 24/2014, I reviewed the law relating to the reliance on a decision of a court of criminal jurisdiction for proof of a civil action. Learned Counsel for the Plaintiff, Ms. Christen has submitted extensively and accurately on this issue. For completion I reproduce the relevant parts of the decision in Solo which are applicable to the present case: “Article 1351 of the Civil Code of Seychelles provides in relevant part: “3. The admissibility and effect of judgments given by a Court of criminal jurisdiction shall, in civil matters be governed by and decided in accordance with the principles of English law.” The applicable English law on this issue was explored by Perera J (as he then was) in Saunders and Ors v Loizeau (1992) SLR 214. The rule against the inadmissibility of such evidence to prove a civil case was contained in Hollington v Hewthorn (1943) KB 587. The rule however was abrogated by section 11(1) the English Civil Evidence Act of 1968 which made admissible a conviction for proving that a defendant in a civil action committed the act for which he was convicted. The Act was adopted in the jurisprudence of Seychelles by virtue of the fact that applicable English law in Seychelles in terms of evidence is that in force when Seychelles became independent on 1st January 1976 (See Kimkoon and Co v R (1965) SCAR 64, Vel v Tirant and or (1978) SLR 9, Bouchereau v Francois and ors (1980) SLR 77). The Seychellois Evidence Act by amendment in 1990 imported this statutory provision of the English Civil Evidence Act 1968 into our laws. Section 29 of our Evidence Act provides in relevant part: “(1) In a trial the fact that a person, other than, in the case of a criminal trial, the accused, has been convicted of an offence by or before any court in the Republic shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in the trial, that that person committed the offence or otherwise, whether or not any other evidence of his having committed that offence is given.” (2) In a trial, other than in a civil trial for defamation, in which by virtue of this section a person, other than, in the case of criminal trial, the accused, is proved to have been convicted of an offence by or before a court in the Republic, he shall be taken to have committed that offence unless the contrary is proved. … 5) Where evidence that a person has been convicted of an offence is admissible under this section, then without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based (a) the contents of any document which is admissible as evidence of the conviction; and (b) the contents of the information, complaint or charge sheet on which the person was convicted, shall be admissible in evidence for that purpose.”” [28] The effect of these statutory provisions is that the contents of the file of proceedings of the criminal trial before the Supreme Court proves that the Defendant’s employee (préposé) committed the offence of manslaughter by his gross acts of omission. The conviction was upheld on appeal (Barreau v R[2015] SCCA 45). Section 29(2) of the Evidence Act shifts the legal burden onto the Defendant to show on a balance of probabilities that its employee (préposé) has not committed the offence. [29] I am unable to conclude on the evidenced adduced in the present case that Mr. Barreau did not do so. [30] The Defendant has not attempted to rebut its vicarious liability as the employer of Stephan Barreau. Learned Counsel for the Plaintiff, Ms. Christen, in her submission has also relied on the equivocal nature of the Defendant’s Statement of Defence and the numerous occasions where Counsel for the Defendant has conceded liability. [31] Given the provisions of the law in regard to mandatory navigational lights I am therefore unable to find either the Cerf 1 or the Plaisance solely liable for the accident. On the evidence adduced I find that the skipper and owner of the Plaisance did bear some responsibility for not having an all-around light when sailing on the night of the incident but that responsibility is far outweighed by that of the skipper and owner of Cerf 1. I do not attach much weight to the fact that the boat boy on the Plaisance as submitted by Mr. Georges did little to warn of the impending collision. When a vessel is travelling forward one’s attention is to the front of the vessel and not to the back. There was much more responsibility on the part of the Cerf 1 to have a boat boy on board which it didn’t. In the circumstances, I find the contributory negligence of the Plaisance at 25% and for the Cerf 1 at 75% [32] It is admitted by the Defendant and the First Third Party that the owner of the Plaisance is Saint Anne Resort. Yet Saint Anne Resort was not made a party to his action. There is equivocal evidence as to who was operating the vessel on the night in question. Mr. Charles Simeon in the criminal trial stated that the operation of the vessel at night was the responsibility of the First Third Party. Mr. Larue in this trial was adamant that he operated his own vessels (the Bel Air and Exora) to transport staff from the resort and not that of the resort. His evidence was not undermined in anyway in cross examination. I have no reason to disbelieve him. [33] I cannot find on this equivocal evidence that, the First Third Party is responsible for the operation of the Plaisance. In terms of the provisions of Article 1315 of the Civil Code, the Defendant who is averring the obligation of the First Third Party has not discharged the onus placed on it. Furthermore, I do not find it proven that the Second Third Party was acting on the express instructions of the First Third Party in taking the Plaisance on its fateful trip. [34] Insofar as the Second Third Party is concerned, whether he was on a frolic of his own on the night in question or acting in the general scope of his employment with the Second Third Party or Saint Anne resort for that matter, he is not absolved personally of his statutory responsibility of taking out a boat when one of the navigational lights was not functioning. [35] To conclude insofar as the Plaintiffs are concerned, the Defendant is wholly liable to them. In regard to the Defendant it can be indemnified to the extent of 25% against the Second Third Party. [36] I now turn to the quantum of damages to be awarded. The Plaintiffs individually claimed moral damage consisting of the pain and suffering of the Deceased together with their own loss of a family member. In addition the first three Plaintiffs claimed pecuniary loss. [37] Mr. Georges has submitted that the Deceased died very soon after the accident and in any event became unconscious at the time of impact. He surmises that she therefore did not suffer long. He has not cited any authorities on the issue of quantum. Ms. Christen cited both old and more recent authorities on this issue. She has also provided an extensive comparative review of other jurisdictions. [38] As we have pointed out before Seychelles is ill served by the fact that it has no book on the quantum of damages. However, in determining the quantum of damages although the assessment is often arbitrary and more like an exercise of discretion, a court needs to have regard to comparable cases (See Mousbe & Or v. Elizabeth (unreported) SCA 14 of 1993 and Seychelles Breweries v Sabadin (unreported) SCA 21/2004 in which was held that the assessment of damages was an estimate which was necessarily a matter of degree and any figure that was arrived at during the assessment of damages could not be other than artificial and must basically be a conventional figure derived from experience or from comparable awards). [39] There is however a distinction in the quantum of damages awarded for the heirs of a de cujus who dies instantly and one who dies after a fatal injury having experienced pain and suffering. It is surmised by the Plaintiffs that the Deceased died within an hour of the collision. Mr. Georges has submitted that she lived for about ten minutes after the collision based on the fact that the collision happened at around 10 pm and she was certified dead at 10.11pm. In any case, the Deceased survived the collision albeit briefly. [40] In this respect, Sauzier J in the case of Elizabeth v Morel (1979) SLR 25, cited Le Tourneau, La Responsabilité Civile (2nd ed), para 171, 172, 173 and 174 as follows: - 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. [41] As the death of the Deceased was not concomitant with her injuries, the Plaintiffs are entitled to claim for moral prejudice caused to her before she died. We cannot speculate on how much she suffered and for how long. However there is no getting away from the fact that her injuries were horrific and her pain great. In Jouanneau v Government of Seychelles (2007) SLR 99, the sum of SR50, 000 was awarded as moral damages for pain and suffering of the Deceased who had been shot and did not live long. In Adonis v Ramphal (2013) SLR 387, a global sum SR 250,000.00 was awarded as moral damages for suffering trauma, loss of quality of life and loss of amenities. In that case the Deceased lived for two and a half years before she died. [42] Ms. Christen has submitted that it is high time for the courts of Seychelles to increase moral damages in order to reflect the social and economic times we are in. The Court is certainly in agreement with this view. In Government of Seychelles v Rose (2012) SLR 364,Msoffe JA in delivering the Court of Appeal decision stated: After looking at some of those authorities and after addressing our minds to them, we wish to make the following points: - One, the appellant has cited to us ten or so authorities relating to comparative awards in the assessment of damages. In principle, we have no serious quarrels with those authorities in view of the context in which they were decided. However, in those authorities, except David vs. Government of Seychelles SSC 199/2007 and Jouanneau (supra), it will be noted that these were cases which were decided before the year 2003 or thereabout. Our view is that since then there have been many changes in the society such that there is now a need to approach the issue of damages for personal injury cases with a new, fresh and different view point and outlook. We think that although finally each case has to be decided on the basis of its own facts the time is now ripe to award damages which reflect the socio-economic situation of the day and the seriousness of the injury in question. In this sense, there is need to ensure that damages reflect this reality of life and hence be on the higher side in order to redress losses for personal injuries, particularly where death is involved. [43] In France, whose civil law we have inherited, a scale is used, which specifies differing degrees of pain (very light, light, moderate, medium, quite severe, severe, very severe). The First Plaintiff has not particularised the amounts for moral damage but has prayed for the global sum of SR200, 000 for both the Deceased’s pain and suffering and the moral damage for the loss of his daughter. Bearing in mind the authorities above and the current socio-economic situation, I feel a departure from small awards is justified, I therefore award the sum of SR 75 000 as moral damage for the pain and suffering of the Deceased, which I feel would have been very severe, to be shared among all the Plaintiffs. [44] The death of a child is painful for every parent. The Deceased’s sudden death far away from the loving care of her family and her home must no doubt have intensified the suffering of the Plaintiff. I cannot imagine the suffering he endured travelling such a distance, identifying her body, collecting her remains and not having been able to say good bye to her. With regard to moral damage for the loss of his daughter, I award the First Plaintiff the sum of SR100, 000 as claimed. [45] Insofar as the Second Plaintiff is concerned, no separate award can be claimed for the pain and suffering endured by her daughter. I do however grant her the sum of SR100, 000 moral damage for the loss of her daughter for the same reasons that I have granted it to the First Plaintiff. [46] Similarly the Third and Fourth Plaintiffs cannot claim separately for the pain and suffering of their sister. That amount has already been granted in the sum of SR75, 000 to be shared. [47] Built into the Plaint is an inference that the moral damage for the loss of a sibling is less than for the loss of a daughter. Although I am not fully of the same opinion and in view of the fact that I have already granted each sibling the sum of SR25, 000 for the pain and suffering of the Deceased I grant them each SR75,000 for the loss of their sister. [48] I now turn to the pecuniary loss of the Plaintiffs. In our civil law regime the following principles apply for the award of damages: first, the damage sustained has to be certain, direct and personal to the Plaintiff (damages arising from the extravagant choices due solely to the personal will of the victim are not payable: Trib. Chartres, 28 oct. 1938, D. H. 1939, 31); secondly the victim must be placed in the same position that he/she would have been in had the accident not occurred ( See Civ. 2e , 28 oct 1954, J. C. P. 1955. II.8765, note SAVATIER (“Le propre de la responsabilité est de rétablir aussi exactement que possible l’équilibre détruit par le dommage, et de placer la victime, aux dépens du responsable, dans la situation où elle se serait trouvée si l’acte dommageable n’avait pas eu lieu”), thirdly the court exercising its discretion must decide what sum is adequate; fourthly compensation for indirect victims (victimes par ricochet) are recoverable on the same principles as that of direct victims ( See Francois Terré, Philippe Simler and Yves Lequette, Droit civil: Les obligations, (10e ed, Dalloz 2009)). [49] With these principles in mind I now consider the claims of the Plaintiffs. The First Plaintiff has claimed SR 1 465,487.11 for expenses incurred for travel, repatriation of the Deceased’s remains and funeral costs. The Defendant has not disputed the funeral expenses and freight costs for the total amount of New Zealand $ 9,138.43. It has also not disputed other funeral expenses amounting to New Zealand $ 12,105.64. [50] The Defendant has also not disputed the financial loss incurred by the First, Second and Third Plaintiffs. They are therefore also awarded. [51] There are 13 items that are not accepted as reasonable expenses by the Defendant and I shall go through each of them in turn. Item 16, 29 and 30 relate to the closing of the Deceased’s estate in Dubai. Mr. Georges has submitted that these items relate to fees that have no link with the accident. I disagree. Simply put, had the Deceased not died there would have been no need for the First Plaintiff to engage lawyers to wind up her estate. These are directly linked to the Deceased’s death, are reasonable and are therefore allowed. [52] Items 12, 15, 25 and 39 are contested. They are in respect of airfares to Seychelles. Mr. Georges has submitted that items 12 and 15 which are airfares from New Zealand to Seychelles in respect of the First and Second Plaintiffs for their attendance at the criminal trial of Stephan Barreau were not necessary. He states that their attendance was not required as they were not witnesses in the trial. Ms. Christen has submitted that the Plaintiffs as parents of the Deceased attended the trial to achieve a measure of closure and to understand the circumstances in which their daughter had died. I find this explanation reasonable and the incurred costs certain, direct and personal to the Plaintiff in the event of the criminal trial arising from the manslaughter of their daughter. [53] The Four Plaintiffs attended the civil trial, the subject of this action. Plaintiffs are expected to attend their own court case especially when they have to testify and where they claim damages separately. I cannot see how else they could prosecute their claim. The expense is reasonable and well in keeping with the principles outlined above and are therefore allowed. [54] Mr. Georges has contested the necessity for a headstone. I do not follow his reasoning. People who pass away are buried and a headstone erected to mark their graves and their memory. The Deceased’s death was not expected or natural. Mr. Georges has also not demonstrated the extravagance of the headstone by comparisons to other headstones. The erection of a headstone is directly linked to the events surrounding her death. It is therefore allowed. [55] Items 24, 33, 34, 35 and 36 are also contested by the Defendant. These expenses were incurred in respect of a legal action and a settlement in respect of Mr. Grant Tutchten, the Deceased’s boyfriend. . Mr. Georges has submitted that they do not directly relate to the death of the Deceased. Ms. Christen has stated that had the settlement not been made, a court action by the Deceased’s boyfriend would have tarnished the reputation and memory of the Deceased. These items are not directly related to her death to be allowable. I therefore do not make an award in this respect. [56] I have made the awards in rupees using the rate of 1 NZ $ to SR 10.097 as was claimed in 2014. That rate has not been challenged by the Defendant. [57] I therefore order Defendant to pay the following sums: 1. For moral damage in respect of the pain and suffering of the Deceased (to be shared equally between the Plaintiffs SR 75 000 2. For moral damage for the loss of a daughter by the First Plaintiff SR 100,000 3. For moral damage for the loss of a daughter by the Second Plaintiff SR 100,000 4. For moral damage for the loss of a sister by the Third Plaintiff SR 75,000 5. For moral damage for the loss of a sister by the Fourth Plaintiff SR 75,000 6. For financial loss incurred by the First Plaintiff SR122,710.75 7. For financial loss incurred by the Second Plaintiff SR 8,160.53 8. For financial loss incurred by the Third Plaintiff SR26,663.08 9. For the initial travel to Seychelles, repatriation of the Deceased’s body, funeral expenses and incidentals (NZ $ 9138.43 + 12,105.64)SR 122,225.901 10. For the closing of the Deceased’s estate in Dubai (NZ $ 13,859.47) SR139,939.07 11. For travel to Seychelles for both trials (NZ $36, 492) SR368,459.72 12. For the memorial headstone NZ $3850 SR38, 873.45 Total SR1,252,032.501 [58] I order the Defendant to pay the costs of this suit and interests on the award. [59] I order the Second Third party to indemnify the Defendant to the extent of 25% of the total award, costs and interests of this suit. Signed, dated and delivered at Ile du Port on 2 March 2017. M. TWOMEY Chief Justice 17