SICOM & Others v State & Others

2022 INT 150

CN 602/2018

THE INTERMEDIATE COURT OF MAURITIUS

(CIVIL)

In the matter of: -

1. SICOM General Insurance Ltd

2. Marie Esthelle Magalie Lambert-Henry
3. Bahadoor Rishikase
Plaintiffs

v/s

1. The State of Mauritius

2. Abdool Wahed Muhammad Wasseem

Defendants

Ruling

1. The plaintiffs are praying for a judgment from this court, condemning and ordering
both defendants jointly and in solido in their respective capacities as “commettant”
and “préposé” to pay damages to plaintiff no.1 Rs 297,374, to plaintiff no.2 Rs 15,000
and to plaintiff no.3 Rs 17,000, respectively.
2. The plaintiffs aver that an accident occurred on the 7th September 2016 along NTR at
Pailles. Vehicle no. H 1812 was on the fast lane in a file of vehicles proceeding towards
Port Louis and was preceding vehicle no. 6368 AG 14 and no. 4842 JL 08 which in turn
were preceding vehicle no. 91 RM 12. They further aver that at some point vehicle
no. H 1812 had to stop due to traffic when it was suddenly hit at the rear by vehicle

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 no. 6368 AG 14 which in turn was hit by vehicle no. 4842 JL 08 and which in turn was
hit by vehicle no. 91 RM 12 causing the aforesaid vehicles to hit against each other.

Defendant no.1 in its ‘Proposed amended plea’ took a Plea in limine which reads as
follows:

“Defendant No.1 moves that the Amended proecipe be dismissed in as much

as the action set out therein is misconceived and untenable in law. With
costs.”

3. At the sitting of the 22nd November 2021, State Counsel appearing for defendant no.1
particularised the above plea in limine by stating that “it is the contention of
defendant no.1 that liability of the ‘commettant’ and ‘préposé’ cannot be engaged
jointly and in solido and hence has raised the plea in limine as per the proposed
amended plea”.

Submissions on behalf of Defendant No.1

4. From the outset, it is to be noted that counsel for defendant no.1 stated that it is not
disputed that the liability of defendant no.1 is being engaged as a ‘commettant’ and
that of defendant no.2 as ‘préposé’. This has also been admitted in the Proposed
amended plea of defendant no.1 at paragraph 4. Counsel submitted further that the
State is being sued in tort, that is, under Article 1384 of the Code Civil Mauricien. It is
her contention that the defendants can only be sued jointly and in solidum when they
have both contributed to the prejudice caused to the defendants and where it is not
possible to determine the exact share of contribution of each defendant. Counsel also
referred to s.2(1)(a) of the State Proceedings Act stating that the State cannot be sued
directly as a tortfeasor but that its liability can only be engaged vicariously, as a
‘commettant’ for the torts of its employees or agent. She further stated that the
present matter is not one where the ‘commettant’ and the ‘préposé’ have jointly
contributed towards causing prejudice to a third party and where it is impossible to
determine each defendant’s contribution in causing the prejudice. Therefore, since

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 each defendant’s part can be determined, then the liability of the ‘commettant’ and
the ‘préposé’ cannot be engaged jointly and in solidum.

Submissions on behalf of Plaintiffs

5. In a gist, counsel for the plaintiffs submitted that under paragraph 3 of the Amended
proecipe, defendant no.2, who is the préposé of defendant no.1, is being sued for
‘faute’ under Article 1382 and defendant no.1 as the ‘commettant’ is liable under
Article 1384, alinéa 3. She also submitted that the defendants liabilities are also being
engaged alternatively under paragraph 4 as ‘gardien’ of the vehicle under Article
1384, alinéas 1 and 5 of the CCM. Counsel further submitted that there are several
cases namely [Hurnaum v Dindoyal 2016 SCJ 519; Sookun v Armand 2001 SCJ 300;
Ellahee v Bodha & Anor 2008 SCJ 273; Luchun V Chatun 2003 SCJ 36] whereby the
‘commettant’ and ‘préposé’ have been found ‘jointly’ and in ‘solido’ liable for the
damages caused.

Analysis

6. I have duly considered the arguments of counsels appearing for the plaintiffs and
defendant no.1. The relevant part of the proecipe reads as follows:

Para 3: Plaintiffs aver that the accident occurred as a result of the ‘faute’ of the
defendant no.2, the ‘préposé’ of Defendant no.1 and therefore the Defendant
no.1 as ‘commettant’ and Defendant no.2 as ‘préposé’ are jointly and in solido
liable towards the Plaintiffs for all damage and prejudice suffered by them.

Para 4: In the alternative Plaintiffs aver that vehicle 92 RM 12 was under the
custody of Defendant no 1 the ‘commettant’ and as a result the Defendants as

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 ‘commettant’ and ‘préposé’ are jointly and in solido liable towards the Plaintiffs
for all damage and prejudice suffered.

Para 8: Plaintiffs therefore pray from the Court for a judgment condemning and
ordering both Defendants jointly and in solido in their aforesaid respective
capacities as commettant and préposé to pay to plaintiff………

7. It is clear from the pleadings that under paragraph 3 that the defendants liabilities
are being engaged as ‘commettant’ and ‘préposé’ respectively and alternatively,
under paragraph 4, Defendant no.1’s liability is being also engaged as ‘gardien’ of the
vehicle. However, the prayer at paragraph 8 has been specifically drafted in such a
way as to require the court to find defendants liable as ‘préposé’ and ‘commettant’
respectively and not as ‘gardien’ of the said vehicle.

8. Article 1384 alinéas 1 and 3 of CCM, upon which the respective liabilities of
defendants under paragraph 3 are being engaged as ‘préposé’ and ‘commettant’
provide as follows:

“On est responsable non seulement du dommage que l’on cause par son propre fait,
mais encore de celui qui est causé par le fait des personnes dont on doit répondre, ou
des choses que l’on a sous sa garde.”

“Les maîtres et les commettants, du dommage causé par leurs domestiques et préposé
dans les fonctions auxquelles ils les ont employés.”

9. It is vital to point out at this stage that, defendant no.1 in its plea admitted to the ‘lien
de préposition’ that existed between the defendants at the material time.

10. The submissions of counsel for defendant no.1 rests on the argument that there has
been a marked evolution in the jurisprudence in France on the ‘in solidum’ liabilities
of the ‘commettant’ and the ‘préposé’ in as much as, when there exist a ‘lien de
préposition’ between the parties and that the ‘préposé’ was acting ‘dans les limites

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 de sa fonction’ the parties cannot now be sued jointly and in solido. She supported
her contention by quoting from an extract from Note 22 of Jurisclasseur – Vo
solidarité, RÉGIME GÉNÉRAL DES OBLIGATIONS – Modalités de l’obligation -
obligations in solidum 5 Février 2020, where it has been stated that “le commettant
est responsible avec son préposé du dommage cause par ce dernier à un tiers.
Naguère, l’obligation et la réparation pesant sur le commettant et son préposé était
une obligation ‘in solidum’ dès lors que les conditions posées par cette disposition
étaient remplies……..Lorsque le rapport de préposition était rempli, la jurisprudence
considérait qu’en cas de faute du préposé, lui-même et son commettant étaient tenus
‘in solidum’ à la reparation.

Cette solution ne fait plus partie du droit positif. La jurisprudence decide que le
préposé n’engage pas sa responsabilité losrqu’il agit dans les limites de sa mission.
………………………..
Dans ce cas, seul le commettant est responsible. Faute d’une pluralité de
responsables, l’obligation ‘in solidum’ est exclue.
………………………………..
Le préposé benefice de cette immunité s’il cause un accident de la circulation en
conduisant un vehicule dans l’exercise de sa mission et génére un dommage à autrui…
………………………………..
Le préposé engage sa responsabilité s’il commet une faute civile intentionnelle…..”
[underlining mine]

11. It is apposite to mention at this stage, that although ‘la loi de 5 Juillet 1985’ which
applies specifically to ‘circulation de la route’ has brought a lot of changes in the law
in France, ‘tendant à l’amélioration de la situation des victims d’accidents de la
circulation et à l’accélération des procedures d’indemnisation’ – (Méga Code Civil 10e
edn 2014 Dalloz page 2748 Art.1384). That law is obviously not applicable to
Mauritius and we remain governed by Article 1384 of the Code Civil Mauricien as far
as responsabilités civiles of road accidents are concerned. Moreover, Article 1384 of
the Code Civil Francais, in relation to the alinéa referring to commettants and
préposés have not been amended and are similar to the corresponding alinéa 3 of

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 Article 1384 of our civil code. Hence, the evolution of the jurisprudence in France
under Article 1384 and in particular, on the in solidum liabilities of ‘commettants’ and
‘préposé’ will therefore serve as guidance in our jurisdiction to the extent that it is
not inconsistent with our statutes or judgments of the Supreme Court. One can quote
in that respect the following passage from L’Etendry v The Queen [1953 MR 15]
‘the normal rule of construction laid down time and again by this court ……… is to the
effect that when our law is borrowed from French law we should resort for guidance
as to its interpretation to French doctrine and case law.’
I have to point out also that I have not come across any judgment of the Supreme
Court or of the Judicial Committee of the Privy Council where the present issue has
been specifically canvassed and determined.

12. I, therefore agree with the submissions of State Counsel that when a cause of action
is based under Article 1384 alinéa 1 and 3 of CCM and if the ‘préposé’ is acting ‘dans
les limites de sa mission’ then the ‘commettant’ is solely responsible for the prejudice
caused, the ‘préposé’ on the other hand is immune from liability and ‘l’obligation in
solidum’ is therefore excluded.

13. It is to be noted that as per the pleadings it has not been averred that defendant no.2
was acting outside ‘les limites de sa fonction’ and as such this is not disputed.

14. However, the court also notes that paragraph 4 of the Amended proecipe has been
pleaded as an alternative cause of action and that the liability of defendant no.1 is
engaged under this paragraph as one having the custody ‘la garde’ under Article 1384
alinéa 1 and 5 of CCM which reads as follows:

“On est responsable non seulement du dommage que l’on cause par son propre
fait, mais encore de celui qui est causé par le fait des personnes dont on doit
répondre, ou des choses que l’on a sous sa garde.

……

Le gardien de la chose, du dommage causé par le fait de celle-ci.…….”

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15. It is not disputed that when a cause of action is based under Article 1384 alinéa 1 and
5 of CCM, where the responsibility of the owner as the ‘gardien’ de la chose is
engaged, then both the ‘gardien’ defendant no.1 and the ‘tortfeaser’ defendant no.2
can be sued jointly and in solidum.

16. Counsel for the Plaintiffs referred to the case of the Hurnaum v Dindayal [2016 SCJ
519] where the Supreme Court stated the following “Cases of motor vehicles road
accident may give rise to different causes of action under articles 1382 to 1384 of the
Civil Code as different parties may be involved, such as the driver, the
owner/custodian and the insurer of the vehicle…….The law gives the injured party the
liberty to choose whether to sue all or anyone of these parties and in what
capacity…..But where there is more than one defendant and each one is sued in a
different capacity, we hold the view that the trial Court is perfectly entitled to consider
the plaintiff’s case against each defendant as Articles 1382 and 1384 are ‘cumulatifs’
as opposed to ‘alternatifs’…….. .

Having found proved the liability of the appellant as “gardien” of the vehicle and
having also found “faute” proved against respondent no.2, the learned trial Judge was
right to hold both appellant and respondent no.2 jointly and in solido liable in damages
to respondent no.1.”

It has to be noted that in the above matter, the appellate court was called upon to
decide whether it was appropriate for the trial court to have found the custodian of
the vehicle liable under Article 1384, if such a cause of action was pleaded
alternatively, despite the court having found that the driver was liable for faute under
Article 1382 of CCM. The Appellate Court thus held that it was appropriate for the trial
court to have found both the driver and the custodian of the vehicle to be liable jointly
and in solido despite that their respective liabilities were being engaged in the
alternative as per the pleadings. However, the issue in the present matter is distinct
from the above matter and as pointed out above, the jurisprudence under article 1384
on the ‘in solido’ liabilities of a ‘préposé’ and ‘commettant’ has evolved.

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 17. I also note that under paragraph 4 of the proecipe, the plaintiffs also seek to engage
the liability of Defendant no. 1 as ‘gardien’ of the vehicle but ambiguously state that
‘……the defendants as ‘commettant’ and ‘préposé’ are jointly and in solido liable
towards the plaintiffs for all damage and prejudice suffered’. Further, the Court also
notes that although custody has been pleaded under paragraph 4 of the proecipe, the
prayer at paragraph 8 is asking the court to find defendants liable jointly and in solido
as ‘préposé’ and ‘commettant’ and not as ‘gardien’ of the said vehicle.

18. In view of the above, having found that the defendants’ respective liabilities cannot
be engaged jointly and in solido as ‘préposé’ and ‘commettant’ and that since the
prayer requires the court to find them liable jointly and in solido as ‘préposé’ and
‘commettant’ only, this Court has no alternative than to non-suit the plaintiffs.

19. I, therefore non-suit the present plaint with no order as to costs.

A.Purryag-Ramful
Magistrate
Intermediate Court
8th June 2022