Marengo v Gamatis (CS 120 of 2018) [2023] SCSC 242 (16 March 2023)

IN THE SUPREME COURT OF SEYCHELLES In the matter between: JOSIANNE MARENGO (rep. by F Elizabeth) and JULIUS GAMATIS (rep.by F Bonte) I) Reportable [2023] SCSC .~ ~ CS 120/2018 Plaintiff Defendant Neutral Citation: Marengo v Gamatis (CS 120/2018) Govinden CJ Before: Summary: Faute in law, moral damages for injuries Heard: 26th Seprember 2022 Delivered: 16th March 2023 [2023] SCSC'2..lj-2.(16 March 2023) I award the total sum of SCR50,000 for the moral injuries suffered by the Plaintiff ORDER JlJDGMENT R GOVINDEN, CJ [1] The Defendant has admitted liability in this case, but disputes the extent of the injury he caused to the Plaintiff. The Defendant averred that he had already compensated the Plaintiff as a result of a compensation order given before the Magistrates Court in a criminal case based on the same facts. As a result, the Defendant contests the damages claimed, which he claims are excessive. The Plaintiff is claiming SCR400,000 for moral damages. [2] The facts of the case can be summarised as follows. On the 16th of June 2014 when the Plaintiff exited a bus at Anse Royale, the Defendant came over to her and asked her what she had said before. He then kicked her and she fell on the ground and she got cut on her 1 face, which had to be stiched up. She also received some injuries on her elbow. As a result of the assault she had to take sick leave from her work. [3]· The sentence of the Learned Magistrate was produced in evidence and in it he made a finding of fact in which he held tha the Plaintiff sustained injuries in the form of small lacerations on hands and legs and a 1.5 cm lacerations on her lips requiring stiches which she refused. As a result the Learned Magistrate found the Defendant guilty as charged and ordered that a sum of SCR2,OOObe paid by the Defendant to the Plaintiff as compensation, out of a fine of SCR8,OOO. TheMedical Report of the Plaintiff, done soon after the incident, was also produced by the Plaintiff and it largely corroborated the findings of the Learned Magistrate. The Defendant did not call any witnesses and neither did he testify. [4] Having thoroughly examined the facts of the case and having carefully considered he evidence, I find that the Plaintiff is truthful and I rely on her testimony. It appears that she might have forgotten the nature and exten of her injuries and even the fact that she might have refused medical treatment in the form of being stiched, but this does diminish the veracity of her case. I am of the view that she suffered all the injuries stated as a result of the acts of the Defendant, which consist of an unlawful act and a faute in law. [5] The main principle of liability for delict in the Civil Code is Article 1382 which provides: "Every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it. " [6] To succeed on a claim of delict, the Plaintiff must prove three elements, that is to say fault, injury or damage and a causal link. This was the position confirmed by this Court in the matter of Emmanuel v Joubert SCA 49/1996, LC 117. [7] The claim arises at the earliest time when these three co-exist and it is from that time that it is open to the aggrieved person to bring an action to enforce the claim that has arisen (see Emmanuel v Joubert supra). In the present case, it is admitted that the Defendant assaulted the Plaintiff, and as a result he was at fault in assaulting her. Further, the Plaintiff has convinced me on a balance of probabilities that she suffered both physical as well as psychological injuries, and that there was a causal link between the assault and the injuries she suffered. As such, the Defendant cannot escape liability. He commited a faute and is obliged to repair the damage that he caused the Plaintiff. The Plaintiff has, however, claimed damages only for psychological injuries and the court will proceed on this basis. [8] Having come to this conclusion I also find that the sum of SCR2,000 paid as compensation in the criminal case does not sufficiently compensate the plaintiff for her loss and that this sum is too trivial in the circumstances. [9] In the case of Mousbe & Or v. Elizabeth (S. C. A. No 14 of 1993) it was held that the assessment of damages was an estimate which was necessarily a matter of degree and that such assessment was more like an exercise of discretion than an ordinary act of decision, and that therefore, 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 fromSomparable awards. [10] Article 1149(2) of the Civil Code provides for the recovery for injury to rights that cannot be measured such as pain, suffering and aesthetic loss. In Servina v Richmond sees 342/2004 a sum of SCR 10,000 was awarded for pain, suffering and moral damage for injury awarded in respect of laceration to the right arm. Similarly in Dufrene v Bacco se CS 109/2003 an award of SCR20,000 was made in respect of lacerations to the palm of the plaintiffs hand and another SCR8,OOOfor the permanent scar. [11] I bear in mind the time elapsed since the authorities cited above and the changes in the socio-economic context of this country since then and I make the following award: the total sum of SCR50,000 for the moral injuries suffered by the Plaintiff. [12] I make no order as to costs. Si~eJiVered at lie du Port on day lo'" of March 2023. R. J. Govinden Chief Justice 3