Ferley & Ors v Ragain (CS 7/2014) [2017] SCSC 897 (10 July 2017)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS 7/2014 [2017] SCSC Q,Cy:;:, !. JANELLE MADELEINE FERLEY 2. JANELLE KERRIE FERLEY 3. JEAN LUC THIERRY FERLEY (a minor rep. by his guardian) & Ors Plaintiff versus JEAN ANDRE RAGAIN Defendant Heard: Counsel: Mr. J. Camille for plaintiff Mr. D. Lucas for defendant Delivered: 11 July 2017 JUDGMENT Renaud J Background [!] On 26th July, 2009 al Union Vale, Mahe, Marie Claire Leontine Agathe (hereinafter "the deceased") died as a result ofa motor vehicle accident involving the Defendant as the driver of vehicle S 14219 at the material time. As a result, the 6 children and the husband of the deceased in their capacity as her legal heirs, are suing the Defendant and claiming the total sum of SR2,71 J ,460.00 as moral and pecuniary damages. [2] The Plaintiffs claimed that the accident was caused by the negligence and/or faute of the Defendant because he failed to steer the vehicle on the proper side of the road. He also failed to heed the presence of the deceased on the road and also failed to keep any proper look out. He further failed to stop, slow down, S\verve, or otherwise steer or control the vehicle so as to avoid hitting the deceased. [3] On the other hand the Defendant contended that the deceased suddenly and without warning daited onto the road and into the path of the Defendant's vehicle. Despite all efforts at evasion by the Defendant, the Plaintiff collided with the vehicle. The Defendant denied being liable for all or any particulars offaute or negligence. [4] The Defendant averred that the deceased was solely at "faute" for the accident. The Defendant averred that on an overcast evening at around 7 pm the deceased suddenly and without any warning darted across the road in front of the Defendant's vehicle. The Defendant also averred that he reflexively swerved away from the deceased who kept running in the same direction and collided with the Defendant's vehicle. The Defendant further averred that he was driving carefully and at a reasonable speed at all material time and given the circumstances there was nothing he could have done to avoid the accident. The Defendant therefore claimed that he is not liable to the Plaintiffs as claimed. [ 5] The Plaintiffs averred that the deceased suffered injuries as a result of the accident resulting in her death which caused the Plaintiffs to suffer loss and damages. Following the accident the deceased was immediately brought to the Casualty Department where she was declared dead. Post mottem revealed that she died of head injury and fractures on the base of the skull. [6] The Defendant denied liability in any manner or amount. Alternatively, in the event that he is found liable he averred that the deceased was contributorily negligent and at faute in an extremely high proportion. In any event the claims of the Plaintiffs are grossly inflated, unreasonable, excessive and the loss and damages claimed are unsustainable in law and fact. [7] On 22nd March, 2012, the Defendant was convicted only for the offence of driving a motor vehicle with alcohol concentration above the prescribed limit. The Court dismissed the charges of driving recklessly driving at a speed dangerous to the public. [8] The Defendant finally averred that the Plaint is bad in Jaw in that it discloses no cause of action against the Defendant, and ftnther, that the Plaintiffs have no locus standi, capacity or rights to pursue or maintain this action. He sought for the dismissal of this suit with costs. Hearing [9] The Court heard the evidence of the Plaintiffs with the exception of the 6th Plaintiff Maxwell Ferley. Four documents were introduced as exhibits. The Plaintiffs' witnesses testified on the issue of damages rather than on liability as they did not witness the accident. [10] Exhibit Pl is a Certificate of Death dated 30th July, 2015 cettifying that the deceased Marie-Claire Leontine Agathe died in Seychelles on 26th July, 2009. [11] Exhibit P2 is the judgment of the Supreme Cou1t in Criminal Side 32 of2009 delivered on 22nd March, 2012 in which the trial judge acquitted the Defendant of the offences of manslaughter contrary to section 192 of the Penal Code and the offence of causing death by dangerous driving contrary to section 25 of the Road Transport Act. The Court found the Defendant guilty only of the offence of driving a motor vehicle with alcohol concentration above the prescribed limit contrary to Regulation 3(1) and 9(1)(a) of the Road Transport (Sober Driving) Regulation 1995 of S.l. 109 of 1995. Exhibit P3 is the imposition ofa fine ofSRl0,000.00 on the Defendant and the suspension of his licence for 5 years. [ 12] In the case of Saunders v Loizeau ( 1992) SLR 214 the Court held that evidence of previous conviction is admissible only to prove that a defendant committed the offence. Once admitted for this purpose, the burden of proof shifts in a civil trial to the defendant to prove the conviction was erroneous and that failure to do so results in a defendant being treated for all purposes as having committed the offence for which sentenced. Locus Standi [13] By its written submissions, Learned Counsel for the Defendant raised the issue of locus standi of the Plaintiffs and submitted that the Plaint discloses no cause of action in Jaw since the Plaintiffs have not led any evidence to establish that they have locus standi and that they are entitled to claim or have legal rights flowing and arising from the death of the deceased. Learned Counsel submitted that in view of the lack of proof of locus standi by the Plaintiffs the Plaint must in !aw, fail and be set aside. Other Issues [14] It is an issue as to whether the accident occurred solely as a result of the negligence or faute of the Defendant or was it caused by the negligence or contributory negligence of the deceased. [15] Another issue is whether the sum claimed as damages by the Plaintiff are grossly exaggerated and/or justified in law. Pica in Limine Litis [ 16] Learned Counsel for the Defendant raised the issue of locus standi of the Plaintiffs and submitted that the Plaint discloses no cause of action in law since the Plaintiffs have not led any evidence to establish their locus standi entitling them to claim or have legal rights flowing and arising from the death of the deceased. Learned Counsel submitted that in view of the lack of proof oflocus standi by the Plaintiffs the Plaint must in law, fail and be set aside. [ 17] I read into this plea that Learned Counsel when stating - ''the lack of proof of locus standi by the Plaintiffs", by that he meant to establish that fact beyond reasonable doubt as is required in criminal cases. If an issue as to age arises in a criminal case where proof of age or civil status is an element to prove the charge, the best evidence is the official certificate of birth, marriage or death. [18] In a civil suit the standard of proof is that of a balance of probabilities. In the instant case the Plaintiff pleaded that they are the children and spouse of the deceased yet they did not produce any official certificate to establish that fact beyond reasonable doubt. However, each of the Plaintiffs when testifying in Court asserted that they were either the child or husband of the deceased. Such fact is not supported by official certificate of civil status. However, they were duly examined and cross-examined when testifying. It is now for this Court to assess their testimonies on the issue of the respective status and to make a finding on a balance of probabilities. [ 19] Each Plaintiff stated under oath that they are either the child of the deceased or her husband. All but one bear the surname "Ferley" and one bears the surname "Agathe". The one bearing the surname Agathe testified that he is the child of the deceased fathered by another and the other Plaintiffs confirmed that. [20] The claim of other Plaintiffs that they are the children of deceased is duly corroborated by the evidence of each other who testified, as well as the one claiming to be their father and husband of the deceased. The status of the one claiming as husband of the deceased is also corroborated by the evidence ofthose claiming to be his children. The one claiming to be the lawful husband of' the deceased and father of the other claimants bear his surname, namely, "Ferley". It is in dispute that the name of the deceased as stated in the amended Plaint is Marie Claire Leontine Agathe. The name of the 6th Plaintiff is also stated as Steven Agathe who claims to be the son of the deceased. [21] In my considered opinion, none of the Plaintiffs would allow any person to claim the status of being the children and/or spouse of the deceased, especially if they are expecting financial damages which would eventually have to be distributed. [221 I have observed the demeanour of all the Plaintiffs when testifying and cross-examined; I take note of their respective surname; l have made an overall assessment of the testimonies of the Plaintiffs who testified and find and conclude, on a balance of probabilities, that the status claimed by the Plaintiffs is true. [23J For reasons discussed above, I overrule the point of law raised by the Defendant in limine lit is. [24J To avoid such situation that the Court has to review all the facts of the case to establish status ofa party when that is in issue, Learned Counsel ought to facilitate the case of their clients by producing official certificate to establish status. Failing which may lead their client to lose a civil suit on that technicality. Observation [25] That I have made a general observation with regard to apparent expectation of litigants in a civil case claiming damages arising out of motor vehicle accident. [26] It appears to me that there is always an apparent belief by such claimants, heir or ayant droits that if a pedestrian got involved in an accident with a moving motor vehicle it should always follow that the driver of that vehicle must always be at fault. Such expectation is grossly erroneous and unfounded. In many instances it is evident that it is the very pedestrian victim who is at fault either totally or partially. As such the victim must also bear the responsibility in such case. Facts [27] The !st to the 5th Plaintiffs are the children and the 7th Plaintiff is the husband of the deceased, who as a result ofan accident died on 26th July 2009. The Defendant was driving vehicle Sl4219 at Union Vale, Mahe which was involved in the accident. A!I the 7 Plaintiffs are the legal heirs of the deceased. [28] Learned Counsel for the Plaintiffs adduced in evidence the judgment of the Supreme Court in criminal case CR32/09 when the Defendant was convicted for the offence of the offence of driving a motor vehicle with alcohol concentration above the prescribed limit contrary to Regulation 3(1) and 9(l)(a) of the Road Transport (Sober Driving) Regulation 1995 of S. I. 109 of 1995. The Learned Trial Judge made his findings beyond reasonable doubt on the basis of the facts he deduced from the evidence of the witnesses who testified. The Defendant, who was the accused then, did not appeal that judgment. [29] At the hearing of the criminal case an eye witness who saw the accident testified and the Learned Trial Judge believed his testimony which forms the basis of the facts upon which he made his guilty finding. In a nutshell the deceased was drunk and she suddenly attempted to cross the road in front of the vehicle of the Defendant. The Defendant in his attempt to avoid the deceased, swerved to one side of the road but the deceased also moved in the same direction the vehicle had swerved and a collision occurred. The Defendant had consumed alcohol drink at the material time and in my judgment, that contributed to the cause of the accident. [30] In the circumstances I find the Defendant is liable for causing the accident. However, I also find that the deceased equally contributed to causing the accident by suddenly crossing in the lane of the vehicle of the Defendant whilst she was under the influence of alcohol. For these reasons I hereby apportioned the liability equally on the deceased and the Defendant and any award of moral damages to the Plaintiffs shall be reduced by fifty percent. Damages [31] The 1st to 6th Plaintiffs as the children of the deceased each is claiming as damages SR I 00,000.00 for pain and suffering, distress and anxiety; SRI 50,000.00 for bereavement and SR200,000.00 for the loss of a mother. f321 The 7th Plaintiff as the husband of the deceased is claiming as damages SRI00,000.00 for pain and suffering, distress and anxiety as well as SR75,000.00 for bereavement. [331 No doubt the surviving heirs of the deceased suffered morally upon the sudden passing of their mother and wife. Whether the deceased was an 'ideal' mother and wife or not, whether she was making much financial contribution to the household or not, yet her sudden demise and the tragic way that it happened obviously brought suffering to her children and husband which cannot be substituted in money terms. However, the law provides that in such cases the suffering parties are entit!ed to a certain amount of financial reward as a solace and such amount is to be determined by the Court. [34] In assessing monetary compensation in such cases, the Com1 considers the merits of each case, drawing guidance in other similar cases where necessary. Such considerations include and not necessarily limited to, the domestic circumstances of the deceased and the claiming parties prior to the accidental death; the intimacy of their relationship prior to the death; the material contributions the Plaintiffs will be deprived of because of the death; the age of the deceased in relation to the age of claimants; the moral or intrinsic support the Plaintiffs will by the sudden death of the deceased and the consequence on the life in general of the claimants after the passing away of the deceased. [35] After considering all the factors outlive above and the merits of the whole claim, I conclude that the following financial m:vards are justified in the circumstances in respect of each Plaintiff. I have endeavoured to follow recent pattern with appropriate adjustments and award each of the children of the deceased the sum ofSR145,000.00. I award the husband of the deceased the sum of SR70.000.00. 1st; 2nd; 3rd; 4th; 5th and 6th Plaintiffs each (a) For pain, suffering, distress and anxiety SR 35,000.00 (b) Bereavement (c) Loss of mother 7th Plaintiff SR 50,000.00 SR 60.000.00 SR145,000.00 (a) For pain, suffering. distress and anxiety SR 30,000.00 (b) Bereavement SR 40 000.00 SR 70,000.00 [36] For reasons set out above, the Defendant shall be required to pay half of the damages awarded in view of the apportionment declared above. (37] The Plaintiffs are claiming SR4,400.00 as funeral expenses; SR400.00 for Mortuary; SR 1,460.00 for SPTC buses; SRS00.00 for taxi fares; SR 1,500.00 for flowers, bouquet and wreaths; SR3,000.00 for printi ng offuneral books and SR200.00 for cemetery fees, making a total of SR 11,460.00. Although the Plaintiffs have not provided this Court with supporting documentary proofs for these expenses, I am satisfied that such expenses are reasonable when undertaking a funeral in Seychelles and it is neither fanciful nor excessive. [38) Under this head of claim, I award the Plaintiffs the whole sum of SR 11,460.00 wh ich shall not be apportioned. (39) Judgment is accordingly entered in favour of the 1st, 2nd, 3rd, 4th, 5th and 6th Plaintiffs in the sum of SR72,500.00 each, and SR35,000.00 in favour of the 7th Defendant, and SRI 1,460.00 for all the Plaintiffs, as against the Defendant in the total sum of SR48 l ,460.00 w ith interest and costs. Signed and dated at Ile du Port on 17th May 2017 Judge of the Supreme Court Read in ope ourt oy Robinson J, on l l th July 2017 Q ;~ 9