PHOENIX INSURANCE (MAURITIUS) LTD v MAURITIUS UNION ASSURANCE CO. LTD & ANOR [2021 SCJ 364]
Mrs J. Rivalland-Robert, Attorney-at-Law
Mr P. Doger de Spéville, Senior Counsel together with Mr R. Bhookhun, of Counsel
1. THE BACKGROUND:
Phoenix Insurance (Mauritius) Ltd appealed against the judgment of the learned Magistrate of the Intermediate Court finding it liable, in respect of a road accident and ordering it to pay damages to the Respondents, with interest at the legal rate as from the date of entry of the plaint until final payment.
2. LEGAL ISSUES
There were six grounds of appeal, all to the effect that:
(a) The learned Magistrate wrongly inferred that the driver of the vehicle No. 2581 AG 95 (insured by the Appellant) was solely responsible for the accident;
(b) There was contributory negligence on the part of the driver of vehicle No 4050 SP 05 (insured by the Respondent No. 1);
(c) The learned Magistrate erred in law in awarding interests at the legal rate as from the date of entry of the plaint.
3. ANALYSIS & DECISION
(a) First Issue
The Appellate Court found no reason to disturb the finding of fact of the learned Magistrate inasmuch as:
(i) Vehicle No 4050 SP 05 diligently put on his flasher before overtaking;
(ii) Vehicle No 2581 AG 95 failed to ascertain that the road was safe on both sides of the main road before emerging from a less important road.
(b) Second Issue
Contributory negligence does not arise in the present case since it is governed by article1384 of the Civil Code (alinéas1,5 and 6).
The Appellate Court stayed closely guided by the principles enunciated in Toorab F. B v La Prudence Mauricienne Assurance Co Ltd [2016 SCJ 370] wherein it was explained that:
"For our purposes, it is enough to state that irrespective of whether there is “faute” on the part of the plaintiff, the “gardien de la chose” now bears responsibility for the “dommage causé par le fait de celle-ci” unless he can prove “que le dommage a été causé par l’effet d’une force majeure ou de la faute exclusive de la victime”.
The Court also added that under article 1384, "faute" of the victim DOES NOT lead to partial exoneration of the "gardien" from liability, and consequently CONTRIBUTORY NEGLIGENCE is inconceivable in such actions.
(c) Third Issue
The Appellate Court cited Section 197A of the Courts Act and referred to the landmark case of Patel S. D and Ors v Beenessreesingh and Anor  UKPC 18 to reiterate that, though the ordinary course is to award interest from the commencement of the proceedings, upon “good reasons” shown, an award of interest from the close of pleadings will be justified.
THE APPEAL WAS THUS SET ASIDE, WITH COSTS.
The Judgment can be accessed here: https://supremecourt.govmu.org/view_document/1193553/2908793?file=https%3A//supremecourt.govmu.org/system/files/judgment/1193553/phoenix-insurance-mauritius-ltd-v-mauritius-union-assurance-co-ltd-anor-2021-scj-364.pdf%23search%3D%26phrase%3Dfalse&searchType=&search