RACKTOO P & ORS v SIT LEISURE LTD & ANOR

2018 SCJ 389

Record No. 1436

THE SUPREME COURT OF MAURITIUS

[Court of Civil Appeal]

In the matter of:-

1. Praveen Racktoo
2. Sandhya Racktoo
3. Sarhvesh Racktoo
Appellants
v

1. SIT Leisure Ltd

2. The Mauritius Union Assurance Co. Ltd.
Respondents

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JUDGMENT

This is an appeal against a judgment of the learned trial Judge dismissing a claim by
the appellants, then plaintiffs, for damages against the defendants, now respondents.

The following facts were not disputed. Respondent no. 1 was the owner and
operator of Le Waterpark and Leisure Village which provided to its paying visitors
amusement rides and respondent no. 2 was its insurer. On 26 January 2010, appellant
no. 3, the 16 year old son of appellants nos. 1 and 2, sustained serious injuries to his
vertebral column and spinal cord whilst he was in what is known as the ‘wave pool’ which
was one of the amusement facilities found at the water park. Following his injuries, appellant
no. 3 had to undergo intensive medical treatment, including a number of surgical operations,
to save his life and to improve his conditions. He is wheelchair bound with no prospect of
recovery in the future. He needs bedside care every day for the rest of his life and suffers
from 80% permanent incapacity.

The circumstances of the accident which led to the injuries of appellant no. 3 as
averred by the appellants in their amended plaint with summons, and which were hotly
disputed before the learned trial Judge, are as follows. While appellant no. 3 was exiting the
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wave pool, an employee of respondent no. 1 released a wave of water which violently hit him
from behind. He fell headlong in the pool and his head knocked against the floor.

The appellants’ claim for material and moral damages against respondent no. 1 was
based on the latter’s “faute” and alternatively under article 1384 of the Civil Code in its
capacity as “gardien de la chose” of which it had “l’usage”, “la direction” and control.

The “faute” of respondent no. 1 was particularized as follows: (a) failing to ensure
the safety, health, and welfare of appellant no. 3 when the latter was in the wave pool;
(b) allowing the wave pool to be operated without a lifeguard being present; (c) allowing a
wave to be released at a moment when appellant no. 3 was exiting the pool and when it was
unsafe to do so; and (d) exposing appellant no. 3 to the risks of injury which respondent
no. 1 should know and/or ought to have known.

The appellants’ claim against respondent no. 2 was that it was bound in its capacity
of insurer of respondent no. 1 to make good the damages sustained by them.

Respondent no. 1 admittted that it had “la garde” of the wave pool but denied liability
for the accident which it averred occurred through the sole fault and negligence of appellant
no. 3 for having dived into the pool in complete disregard of the safety signs affixed at the
wave pool. It, alternatively, pleaded contributory negligence of appellant no. 3.

Respondent no. 2 for its part invoked an exclusion clause contained in the insurance
policy of respondent no. 1 and averred a breach thereof to exclude its liability. Alternatively,
it pleaded contributory negligence of appellant no. 3.

In order to establish their case before the trial Court, the appellants relied on the
evidence of appellant no. 3 as to the circumstances in which he was injured. They also
relied on the testimony of one Sawan Racktoo, a cousin of appellant no. 3, who had
accompanied the latter at the water park but whom the learned trial Judge remarked did not
witness the accident. Dr Boodhoo who treated appellant no. 3 also gave evidence on the
nature, consequences and possible causes of the injuries sustained by appellant no. 3.
PS Rameshur who had enquired into the accident and who had recorded the statements
of appellants nos. 1 and 3, and under whose instructions photographs were taken and a
plan of the locus drawn up also gave evidence.
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Respondent no. 1, for its part, relied mainly on the testimony of an eyewitness,
one Arun Ramgoolam, in rebuttal of the version of appellant no. 3 as to the events of
26 January 2010.

As regards the circumstances in which appellant no. 3 was injured, the learned trial
Judge had to choose between two diametrically opposed versions. On the one hand, he had
the version of appellant no. 3 that he fell and his head hit the floor of the pool when he was
struck from behind by a sudden wave - which version the learned trial Judge noted stood
alone and uncorroborated as Sawan Racktoo who had been called to give evidence on
behalf of appellant no. 3 had not witnessed the accident. On the other hand, he had the
version of respondent no. 1 that appellant no. 3 had imprudently and in total disregard of
safety instructions displayed in conspicuous places effected a high dive from the edge of the
pool.

The learned trial Judge gave lengthy and detailed reasons as to why he could not
act on the version of appellant no. 3. These reasons, amongst others, were that the
appellant’s version in Court was in complete contradiction with the version he had given in a
statement on 22 May 2010 to PS Rameshur and which was produced in Court as part
of the appellants’ case. The learned trial Judge found that appellant no. 3 had failed to
“come up all the time with the same version in his account of what in fact happened to
him…” The learned trial Judge noted from his statement of 22 May 2010 that the version
of appellant no. 3 was that when he entered the pool the waves were already in motion.
He was struck from behind by a wave, he fell and was carried away. The learned trial Judge
pointed out that no mention was made in his statement that he was projected forward nor
that his head hit the floor of the pool as averred in the plaint with summons and as he had
explained in the course of his examination-in-chief.

The learned trial Judge also took into account the reaction and explanations of
appellant no. 3 on being confronted, in cross-examination by Counsel for respondent no. 1,
with the version given in his statement. He noted the explanations of appellant no. 3 that
when he gave his statement he was in a state of panic because of the presence of his father
whom he feared and that after his discharge from the hospital he did not know what to say.
The learned trial Judge further considered the evidence of appellant no. 3 during his cross-
examination by learned Counsel for respondent no. 2 on the circumstances of his injuries
and found that he came up with yet another version of how his head hit the floor of the pool -
which version was that “when the wave struck his back, he lost his balance and fell. The
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wave dragged him but his head did not hit the floor then.” The learned trial Judge went on to
point out that when he was questioned as to whether in the circumstances he should have
sustained injuries over his face, nose and forehead, appellant no. 3 stated that in fact it was
the top of his head which hit the floor as he fell.

The learned trial Judge was not impressed by his explanations as to why he gave a
different version in his statement to PS Rameshur. He found it “difficult to accept that almost
five months after the accident he would have been in a state of extreme distress and panic
and in fear of his father as to be unable to give a faithful and cogent account of what
happened.” The learned trial Judge found that there was “nothing on record to suggest that
his inconsistencies in Court in his account of what happened to him could possibly stem from
genuine and understandable mistakes or inaccuracies in his recollection of the event due to
the passage of time or the particularly distressed and extreme condition both mental and
physical one can understand he experienced as a result of the serious injuries he sustained.”

The learned trial Judge added that “in the circumstances, it is difficult to minimize the
consequences of the inconsistencies on the part of plaintiff No. 3 alluded to as to hold that
they are minor and of no consequence at all on his credibility.” He went on to observe that
“in the particular circumstances of the present case it was necessary for plaintiff No. 3
to come up with cogent and unshaken testimony clear of any discrepancy of the kind seen,
and this, for at least two reasons. Firstly, in view of the evidence of Dr Boodhoo, his own
treating doctor, that one of the possible causes of the injuries could be an axial force along a
vertical axis like somebody falling from a height with the head hitting first a hard surface,
which in fact is consistent with the version put forward by the defendants that he got injured
when he dived. Secondly, because it has been shown that as can be gathered from the
statement given by plaintiff No. 1 to the police and the history of the injuries imparted to the
treating doctors when they took charge of plaintiff No. 3, at the very outset and shortly after
the incident, the version that emanated from the side of the plaintiffs was that plaintiff No. 3
got injured when he dived in the pool….”.

The learned trial Judge also considered the explanations of appellant no. 1 when he
was confronted with his declaration given to the police “that plaintiff No. 3 got injured when
he did what is referred to in common “patois créole” parlance a “pic tête”, that is, a high
dive.” He did not find his explanations that he could not say from whom this version
emanated and that he was in such distress and panic that he could not ascertain what really
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happened either convincing or good enough to exclude the possibility of appellant no. 3
having dived at the material time.

The learned trial Judge concluded from his assessment of the shortcomings and
inconsistencies he had found in the version of appellant no. 3 that they were of considerable
importance, could not be minimized, and had seriously and adversely undermined the
latter’s credibility.

The learned trial Judge did not confine himself to the evidence of appellant no. 3 in
his assessment of the plausibility of the latter’s version. The learned trial Judge also
considered Dr Boodhoo’s evidence which he summarized as follows:

“(i) plaintiff No. 3 in fact sustained an hyperflexion of the neck when it bent
acutely against a hard surface on impact and that such hyperflexion can
be caused by a fall from a height or a diving accident; and
(ii) hyperflexion would result where a force is applied on the body which
propels the body against a hard surface causing the head to hit first,
which force can be an axial force, that is, one along a vertical axis, like
somebody falling from a height with the head hitting first a hard surface
making it bend.”

Acting on the above evidence the learned trial Judge concluded that:

“…it cannot be said in the particular circumstances of the case that the
defendants’ version that plaintiff No. 3 dived is either a mere guess on their
part or a frivolous allegation or cooked up story put forward in trying
desperately to come up with something that would exonerate them from
liability. As a matter of fact, it has been shown that the version that plaintiff
No. 3 got injured in diving in the pool was the very first version that was given
to the police authorities and the treating doctors after the accident on the side
of the plaintiffs. And as pointed out earlier, no plausible explanation has been
forthcoming from plaintiff No. 1 who was cross-examined in that respect to
explain why such version was given or to suggest that it stems from genuine
erroneous information imparted to him at that time.”

From his analysis of the plan and the photographs produced before him and his
viewing of the video footage, the learned trial Judge was satisfied of the presence of the
safety instructions displayed in conspicuous places and in the proximity of the entrance of
the pool. He referred to the video footage which showed the wave pool in action and
concluded that nothing abnormal or of the kind alleged by appellant no. 3 was observed
during that exercise. He also concluded that the wave pool did not display features
indicative of likelihood of a wave as strong as to project forward a person standing in the
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middle of the pool and that it was difficult to rely on the sole word of appellant no. 3 that he
was allegedly hit from behind by a violent wave whilst he was in the pool.

After having scrupulously scrutinized and formed his opinion on the evidence
adduced by the appellants regarding the circumstances of the injuries of appellant no. 3,
the learned trial Judge then analyzed the evidence adduced by the respondents. It is to be
noted that the respondents relied on the evidence of witness Ramgoolam in rebuttal of the
appellants’ version of the accident. The gist of the evidence of that witness was to the effect
that he had seen appellant no. 3 effecting a high dive from the artificial cliffs. The learned
trial Judge was fully alive to the fact that that witness had not made any formal statement to
that effect contemporaneously with the accident either to respondent no. 1 or to the police.
He bore in mind the explanation of that witness as to why it was only in 2013 that he
volunteered to be a witness for the respondents. His explanation was that shortly after the
accident, he had met one Raudhay, an employee of respondent no. 1 known to him, near
the wave pool and latter had intimated to him that he would be contacted, if need be.

The learned trial Judge had the opportunity and benefit of assessing the credibility of
witness Ramgoolam and the veracity of his testimony. He accepted his explanation and did
not find anything “odd in the fact that he only showed sign of him or was contacted as an
eye-witness quite late in the day as to warrant the adverse inference that he was a mere
“témoin de complaisance” with a cooked up story in a belated attempt to buttress the case of
defendant No. 1...”.

The learned trial Judge found he was a witness of truth whose account of the events
was detailed and cogent. He was moreover satisfied that the witness withstood the test
of cross-examination. He did not find any major shortcomings in his testimony which would
bring him to conclude that his credibility and the plausibility of his version had been seriously
affected. Over and above all, the learned trial Judge concluded that the version of witness
Ramgoolam, that appellant no. 3 had effected a high dive “is fully consistent with one of the
possible mechanisms of the injuries sustained by plaintiff No. 3 as explained by
Dr Boodhoo.”

In the light of his observations and assessment of the evidence adduced with regard
to the facts and circumstances in which appellant no. 3 sustained injuries, the learned trial
Judge found that “it is difficult to accept his [plaintiff no. 3’s] version and reject that put
forward by the defendants”. He then concluded that “the plaintiffs have failed to establish on
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a balance of probabilities that plaintiff No. 3 got injured in the manner in which he alluded to
and that he never dived in the pool at the material time.”

We are satisfied from his thorough and scrupulous scrutiny of the evidence adduced
before him, that the decision of the learned trial Judge on the factual issue, namely the
circumstances of the accident, is unimpeachable. The reasons he gave for rejecting the
evidence of appellant no 3 was reached after an exhaustive analysis and assessment of
latter’s version firstly on its own and secondly when pitted against the photographs and video
footage and the evidence of Dr Boodhoo. The learned trial Judge did not rely solely on the
evidence of witness Ramgoolam or any particular witness called on behalf of the
respondents in support of his conclusion. We are, therefore, unable to find any flaws in his
appreciation and determination of the factual issue. The manner in which he addressed his
mind and his reasoning in deciding as he did is impeccable and to the expected standard.
We do not agree that the learned trial Judge either misapprehended the evidence adduced
before him or drew wrong inferences therefrom or made erroneous findings of fact. His
conclusions and findings on the first issue which he had to determine, namely the
circumstances in which appellant no. 3 was injured, are sound and faultless and do not
warrant our intervention.

Grounds 4, 5, 6 and 7 essentially challenge the learned trial Judge’s appreciation

of the evidence adduced by the appellants, his assessment of the medical evidence of
Dr Boodhoo and the credibility of witness Ramgoolam, and the presence of safety notices.
As held in Product Search International Ltd & Ors v The Mauritius Commercial Bank
Ltd [2015 SCJ 321], “it is trite law that an appellate Court should be loath to interfere with
the findings of fact of a trial Court which, having had the advantage of seeing and hearing
witnesses, is in a better position to assess their credibility...”. We have not been convinced
that the learned trial Judge has formed a wrong opinion in his evaluation of the facts of the
case. His findings of fact are amply borne out by the evidence adduced before him and
cannot be said to be plainly wrong or which no reasonable trial Court could have reached.
We hold that these grounds are devoid of merit, and, accordingly, fail.

We now turn to the legal issues raised in the remaining grounds of appeal.

Ground 1 criticizes the learned trial Judge for his finding that the accident was due
to the exclusive “faute” of appellant no. 3 whereas grounds 12, 13 and 14 raise the issue of
contributory negligence.
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Under grounds 2, 3 and 8, it is reproached of the learned trial Judge that he

misdirected himself in law and erroneously found on the evidence adduced before him that
respondent no. 1 had fulfilled its obligation to provide adequate supervision of appellant
no. 3 who at the material time was a minor and that it had fulfilled its “obligation de moyen”
by placing on the premises and at the pool warnings and notices. The learned trial Judge is
also criticized for his appreciation of the evidence of witness Appiah and his finding that
lifeguard J. Catherine was not expected to stay at the pool at all times.

In respect of grounds 9 and 10 which deal with “la garde de la chose” under
article 1384 of the Civil Code, no submissions were offered at the hearing of the appeal.
They are, accordingly, deemed to have been abandoned.

Ground 11 was dropped at the hearing of the appeal.

We find it appropriate to deal with grounds 2, 3 and 8 first.

That part of the judgment which has given rise to the above grounds are to be found
at paragraphs 78, 80 and 82 of the judgment and they read as follows:

“[78] In relation to the fulfillment of its “obligation de moyens” it is relevant to

point out that it has been shown that defendant No. 1 had the following
measures in place:

i. provided a lifeguard trained by its qualified lifesaver regularly to

operate and supervise the pool at all times;
ii. as a matter of procedure before operating the pool, required the
lifeguard to brief users on safety precautions, including the
precaution not to dive, before activating the waves;
iii. provided for the information of users at a conspicuous spot at the
entrance of the pool a visible and large notice of safety precautions
in characters big enough for easy reading as well as a “No Diving”
notice on the walls of the pool;
iv. provision on the top of the side walls of the pool protective barriers
to deter users from imprudently attempting to effect high dives from
there; and
v. as testified by the lifeguard, instructions as to measures and action
to be taken in case of any indiscipline or conduct on the part of a
user that would not be in compliance with the safety precautions or
putting at stake the safety of other users (use of a whistle to attract
the attention of a user and stop him from doing any act which is not
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allowed and if, necessary calling for assistance from colleagues,

sanctioning the defaulting user by requiring him to leave the site and
so on).

These measures, which also include measures to deal with users who would
put their safety at risk by irresponsible and reckless conduct in disregard of
them were, in my view, adequate to prevent the kind of accident plaintiff No. 3
met with.

……

[80] The conduct of plaintiff No. 3 could have certainly been prevented by
enforcing the instructions alluded to at (iii) above and that the presence of a
second lifeguard at the material time would have been of help. However,
this could not be done as there was an absence of supervision due to the fact
that the only lifeguard in attendance had left his post for the reason given.
Can it be said then for that much that defendant No. 1 was at fault and should
be held liable in tort for what happened to plaintiff No. 3 by reason of a
“un manque de surveillance et de discipline” on its part?

……

[82] It can be observed in the present case that like in the case Hornberg
(supra) the presence of a lifeguard supervising the pool at the time plaintiff
No. 3 was about to dive could have dissuaded plaintiff No. 3 from diving.
But it cannot be said that he could have anticipated that after users in
attendance had been briefed the latter plaintiff, who admittedly was familiar
with the pool for having used it several times before, would come
unaccompanied by an adult and in total disregard of the warning
conspicuously displayed, imprudently effect a dive. This being so, it would be
unreasonable to say that in the particular circumstances of the present case
defendant No. 1 ought to be blamed, wholly or partly, for what plaintiff No. 3
did and what happened to him by reason of a failure on its part to fulfill its
“obligation de moyens” to ensure the safe operation of the pool and the safety
of users and that of plaintiff No. 3 in particular.”

In support of the above grounds, learned Counsel for the appellants argued before
us that (1) at the time that appellant no. 3 got injured in the wave pool no lifeguard was
present when his presence at the wave pool was crucial; (2) the lifeguard failed to warn
appellant no. 3 on the prohibition to dive before activating the waves; (3) the learned trial
Judge ought to have accepted the version of appellant no. 3 on the issue of the presence of
the safety notices/instructions at the entrance of the pool; (4) the finding of the learned trial
Judge at paragraph 78(iv) is not supported by the evidence adduced before him; (5) the
learned trial Judge ought to have attributed the responsibility of the faulty switch to the
respondents, as this was the reason behind the absence of the lifeguard at the wave pool at
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the material time; and (6) the learned trial Judge, after asking himself the right question at
paragraph 80 of his judgment, and after having referred to the case of Hornberg (supra),
however, came to the wrong conclusion at paragraph 82.

Our first observation is that at paragraph 36 of his judgment, the learned trial Judge
pointed out that as per the submissions of their Counsel, the case for the appellants was
grounded in tort under article 1382 of the Civil Code for “faute” and alternatively under
article 1384 (“fait de la chose dont on a la garde”). The learned trial Judge summarized the
gist of the submissions of counsel for the appellants as follows: “Counsel contended in that
respect that the “faute” lies in the failure to safely operate the wave pool and provide safety
measures and a safe environment for plaintiff No. 3, which as he contended, was
satisfactorily shown in the version of the plaintiffs and aspects of the evidence on behalf of
the defendants on record, which he invited me to accept. As regards liability on the basis of
art. 1384, Counsel banked on the undisputed fact that defendant No. 1 had la garde,
direction and control of the pool and the version of plaintiff No. 3 that he was struck by a
sudden violent wave.”

After having found at paragraph 62 of his judgment that the appellants had “failed
to establish on a balance of probabilities that plaintiff no. 3 got injured in the manner
in which he alluded to and that he never dived in the pool at the material time”, the learned
trial Judge stated the following at paragraph 63 of his judgment:

“Now, the question which arises is whether despite the fact that it has
not been established that plaintiff No. 3 got injured in the manner he tried to
show, can it still be said that having regard to the facts and circumstances
surrounding the accident that the defendants ought to be held liable in law.
In that respect, it is to be recalled that in his submissions, learned counsel for
the plaintiffs pointed out that his clients’ action was based on tort, and
particularly, on articles 1382 (faute) and, alternatively, 1384 (fait de la chose
dont on a la garde) of the Civil Code. On the other hand, learned Senior
Counsel has submitted on behalf of defendant No. 2 that the action
should be considered as one based on contract in view of the
contractual relationship between defendant No. 1 and plaintiff No. 3 that
resulted from the fact that the latter party was a paying visitor.”
[Emphasis ours]

The learned trial Judge continued at paragraph 64 in the following terms:

“So, the point that has to be thrashed out at this juncture on the issue
of liability is where does the plaintiffs’ cause of action lie. Is it in tort as
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governed by the provisions of the Civil Code invoked on their behalf or in

contract? The question can be appropriately disposed of by referring to the
pronouncement of the Court of Civil Appeal in the case of Sotramon Ltd v
Mediterranean Shipping Company S.A [2015 SCJ 109] on the application
of the principle of “non-cumul des responsabilités délictuelles et
contractuelles.” The learned Judges in the latter case reviewed judgments in
a string of previous cases on the issue to reach, amongst others, the
conclusion which is most relevant to the present case that “having regard to
our rules and tradition in relation to pleadings and to the spirit of fairness and
justice, a plaintiff who wishes to plead faute lourde rather than breach of
contract should be allowed to proceed in accordance with that option”.”

At paragraph 65, he stated:

“In the light of the conclusion of the Court of Civil Appeal alluded to
above, in the present matter, irrespective of the contractual relationship
having existed at the material time between plaintiff No. 3, the plaintiffs can
properly go on tort for the alleged breach of contractual obligations they have
averred and particularised under paragraphs 11 and 12 of the plaint with
summons and, alternatively, on article 1384 of the Civil Code for defendant
No. 1’s liability as “gardien” of the wave pool as invoked under paragraph 13
of the plaint.”

Further at paragraph 66 he wrote:

“However, “faute” in any degree for breach of contractual obligations is

not expressly pleaded by the plaintiffs in their plaint with summons. Being
given that the alleged breach of contractual obligations as particularised
under paragraphs 11 and 12 of the plaint with summons can appropriately
constitute “faute”, I will not brush aside and disregard the plaintiffs’ contention
in that respect. Having said so, three questions arise at this juncture, namely,
(1) whether the breach of contractual obligations as particularised under
paragraphs 11 and 12 of the plaint with summons can indeed be inferred from
the facts found proved and (2) whether such breach would amount to “faute”
that could be qualified as “faute lourde” entitling the plaintiffs to damages in
tort on the basis of art. 1382, and (3), alternatively, whether the facts and
surrounding circumstances of the accident found proved give rise to liability
under art. 1384.”

Learned Senior Counsel for respondent no. 2 submitted before us as follows: the
case for the appellants before the trial Court was that appellant no. 3 got injured when
respondent no. 1 or its préposés released a violent wave of water which hit him from behind
as a result of which he fell and hit his head against the floor of the pool. The appellants
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were, accordingly, bound by their pleadings. The learned trial Judge, having rightly rejected
the evidence of appellant no. 3 and dismissed the appellants’ case on facts which he found
proved and which constituted a radical departure from the case presented by the appellants,
ought not to have gone beyond the pleadings and ought not to have looked at the
circumstances which did not form part of the appellants’ case before him.

Learned Counsel also submitted that grounds 2, 3 and 8 challenge the finding of
facts of the learned trial Judge based on facts which were not pleaded by the appellants,
hence the appellants cannot now on appeal question the conclusion reached by the learned
trial Judge. Furthermore, the issues raised in grounds 3 and 8 can only be considered under
the “régime” of contract. The appellants having chosen to run their case on the basis of
articles 1382 and 1384 of the Civil Code, their claim for breach of contract could not be
entertained as this would amount to a breach of the principle of “non-cumul de la
responsabilité contractuelle et délictuelle”. Elaborating further on this issue, learned Senior
Counsel remarked on the confusion and lack of clarity in the appellants’ plaint as regards
their cause of action, that is, whether it was grounded in tort, or in contract or both.
He referred to the recent decision of the Judicial Committee of the Privy Council in
Mediterranean Shipping Company v Sotramon Limited [2017] UKPC 23 in support of
his submission that if two parties are in a contractual relationship, the appellants’ cause of
action should be for breach of contract under the law of contract and not in tort.

Learned Counsel for the appellants conceded that there was a difficulty in the
appellants’ plaint as it did not measure up to the standard of proper pleadings which are
essential for the orderly progress of the case and its proper determination. He, however,
submitted that since it has been averred in the plaint that appellant no. 3 was a paying visitor
and had access to the wave pool and was injured “whether it’s an action in contract or in tort
under article 1382 can be taken under Rules of Court, both can be taken together. It’s a
question of seeing whether on evidence which one to accept and which one not to accept.”

In Mediterranean Shipping Company (supra), Lord Toulson giving the judgment of

the Court started his judgment by the following question: Under the law of Mauritius, can a
party to a contract sue the other party in delict for non-performance of the contract, if the
failure to perform it amounted to “faute lourde”? His Lordship referred to the decision of the
learned Judge at First Instance who answered this question in the negative and was
reversed on appeal by the Court of Civil Appeal who held, inter alia, that “having regard to
our rules and tradition in relation to pleadings and the spirit of fairness and justice, a plaintiff
 13

who wishes to plead faute lourde rather than breach of contract should be allowed to
proceed in accordance with that option;...” and ordered “that the case be heard on the merits
as an action based on tort on the basis of faute lourde on the part of the defendant in the
context of its contractual relationship with the plaintiff.”

In deciding this issue, His Lordship referred to an extract from International

Encyclopaedia of Comparative Law, Volume on Torts (Vol XI), on Complex Liabilities
by Tony Weir; Encyclopédie Dalloz, Vo Responsabilité Contractuelle (1989); Dalloz,
Droit Civil: Les Obligations, 11th ed (2013), (edited by Prof Terré, Prof Simler and
Prof Lequette). He also considered, amongst others, the decision of the appellate Court in
TFP International Ltd v Itoola [2002 SCJ 147], The Hong Kong & Shanghai Banking
Corpn v Mamad Safii [2002 SCJ 227] and Air Austral v Hurjuk [2010 SCJ 202] which is to
the effect that: “parties who are linked by contract must ground any claim they may have on
the basis of contractual liability and not in tort.”

We find it relevant, at this juncture, to reproduce the extracts cited by His Lordship
from Encyclopédie Dalloz, Vo Responsabilité Contractuelle and Dalloz, Droit Civil:
Les Obligations, and which read as follows:

“Principe dit du non-cumul - Ce principe, dont la dénomination n’est pas

suffisamment claire, interdit à la victime, non seulement de cumuler ou de
combiner les deux régimes de responsabilité, mais encore de choisir l’un ou
l’autre. Si les conditions de mise en jeu de la responsabilité contractuelle sont
réunies, ses règles doivent s’appliquer, sinon il convient de se référer à celles
de la responsabilité délictuelle.”

“Jurisprudence. La jurisprudence, après avoir hésité, s’est prononcée, en

principe, contre le ‘cumul’ des responsabilités. Elle a décidé que les
dispositions des articles 1382 et suivants sont sans application lorsqu’il s’agit
d’une faute commise dans l’exécution d’une obligation résultant d’un contrat.”

In his comments on the decision of the Court of Appeal which reversed the
decision of the Judge at First Instance who had followed TFP International Ltd (supra),
The Hong Kong & Shanghai Banking Corpn (supra) and Air Austral (supra),
Lord Toulson observed at paragraph 47:

“…The decision of the appellate court involved a volte face from the principle
established in those cases. Although the appellate court referred to those
decisions as authorities on which Matadeen J had relied, it did not itself seek
to analyse the decisions or state any reason to regard them as suspect.”
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At paragraph 48, His Lordship remarked:

“The appellate court expressed the view in its conclusions that in the
spirit of fairness and justice, a plaintiff who wishes to plead faute lourde rather
than breach of contract should be allowed to proceed in accordance with that
option. The Board understands the considerations of fairness and justice
which led the French courts, followed by the Mauritian courts, to develop the
doctrine that a contracting party guilty of a particularly grave breach of
contract (whatever may be the precise parameters of faute lourde) should not
be entitled to rely on an exclusion or limitation clause. However, it sees no
unfairness or injustice in a principle which recognises that an action for
damages resulting from the non-performance of a contractual obligation is an
action founded in contract, no less when the breach is particularly bad than
otherwise. The gravity of the breach does not alter the fact that it is founded
on the non-performance of an obligation which arose from the contract.”

Allowing the appeal, the Board considered that the judgment of the Judge at First
Instance was correct and that the appellate Court was wrong to overrule it.

It would appear, on the one hand, that the appellants in the present case, did not
take the cue from learned Senior Counsel for respondent no. 2 who had, in the course of his
submissions before the learned trial Judge, urged the latter to consider the case for the
appellants as “one based on contract in view of the contractual relationship between
defendant No. 1 and plaintiff No. 3 that resulted from the fact that the latter party was a
paying visitor.”

On the other hand, the learned trial Judge relied on the decision of the Court of
Appeal in Sotramon Ltd v Mediterranean Shipping Company S.A [2015 SCJ 109] and
found it permissible to consider the appellants’ case in tort for the alleged breach of
obligations of respondent no. 1.

In the light of the judgment of the Judicial Committee in Mediterranean Shipping

Company (supra), the appellants’ cause of action ought to have been based on contract in
view of the contractual relationship between appellant no. 3 and respondent no. 1.

The question is, was the learned trial Judge entitled to consider the case of the
appellants in tort for an alleged breach of the contractual obligations of respondent no. 1 as
averred at paragraphs 11 and 12 of their plaint. In view of the decision in TFP International
Ltd (supra) that “there is now a well established doctrine and jurisprudence whereby parties
who are linked by contract must ground any claim they may have on the basis of contractual
 15

liability and not in tort…” approved in Mediterranean Shipping Company (supra), the
answer to that question must clearly be in the negative.

We are, therefore, unable to agree with the reasoning of the learned trial Judge at
paragraph 65 of his judgment which we have earlier set out and which in a gist is that the
appellants could proceed in tort for the alleged breach of contractual obligations of
respondent no. 1. The submissions of learned Counsel for the appellants that “whether it’s
an action in contract or in tort under article 1382 can be taken under Rules of Court, both
can be taken together. It’s a question of seeing whether on evidence which one to accept
and which one not to accept” is, therefore, misconceived. Furthermore, both learned
Counsel for the respondents are right in their submissions that grounds 2, 3 and 8 rest on
those parts of the judgment which was not the case presented by the appellants before the
learned trial Judge. The appellants having grounded their case in tort and not on contract
cannot now on appeal raise issues of “obligation de moyen” and breach of that “obligation”
which not only was not their case but was not even pleaded before the learned trial Judge,
and, which in any event could only be considered under the “régime” of contract.

Be that as it may, we have anxiously considered the reasoning of the learned trial
Judge with regard to his finding that the evidence adduced before him fell short of
establishing any of the shortcomings listed at paragraphs 11 and 12 of the appellants’ plaint.
We are unable to disagree with his conclusions and the authorities he cited in support
thereof that on the evidence adduced before him the appellants have failed to establish a
breach of contract on the part of respondent no. 1 amounting to a “faute” and that they “have
also failed to satisfactorily show that it can be inferred from the facts and circumstances
surrounding the accident that there has been a “faute” imputable to defendant No. 1 that
would justify a claim in tort under art. 1382 of the Civil Code.”

Grounds 2, 3 and 8 are, accordingly, devoid of merit and must fail.

As regards grounds 1, 12, 13 and 14, it was submitted before us that the learned trial
Judge was wrong to have found that the injuries of appellant no. 3 were as a result of latter’s
“faute exclusive” and that the learned trial Judge ought to have at least apportioned the
responsibility for the injuries of appellant no. 3 between the appellants and respondent no. 2.
As we have said earlier, we are not prepared to disturb the finding of the learned trial Judge
that appellant no. 3 was solely responsible for his injuries.
 16

The learned trial Judge can hardly be blamed for his finding, which is amply
supported by the evidence adduced before him, that appellant no. 3 had effected a high dive
and for having rejected his version that he fell and got injured as he was struck by a violent
wave activated in the pool. His further finding that “the demonstration of the waves did not
show waves of such force as to make a person lose his balance and project him to the floor
violently” and that he did not see any “features of some form of physical or mechanical
defect that could cause an accident of the kind alluded to”, is irreproachable.

Having reached the conclusion that the appellants’ version was implausible and
incompatible with the evidence adduced on record, and having accepted the respondents’
version that appellant no. 3 ignored the safety precautions and imprudently effected a dive,
the finding of the learned trial Judge that “the plaintiffs have failed to satisfactorily establish
that the accident was caused by any inherent defect in the pool or in its mechanism
and operation in the form of a «défectuosité dans l’installation, l’organisation ou le
fonctionnement de l’établissement»” and that “the accident was due to the “faute exclusive”
of plaintiff No. 3”, is beyond reproach. In the light of his finding that the accident was due
exclusively to the “faute” of appellant no. 3, the issue of contributory negligence does not
arise.

Grounds 1, 12, 13 and 14 have no merit and equally fail.

All the grounds of appeal having failed, we dismiss the appeal, with costs.

K.P. Matadeen
Chief Justice

N. Devat
Judge

23 November 2018

Judgment delivered by Hon. N. Devat, Judge

For Appellants : Mr M. Mardemootoo, SA

Mr V. Ramchurn, of Counsel
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For Respondent No. 1 : Mrs R. Brigemohane, Attorney-at-Law

Mr R. Rutnah, of Counsel

For Respondent No. 2 : Mrs J. Robert, Attorney-at-Law

Mr E. Ribot, SC