UKPC 18
Privy Council Appeal No 0079 of 2011
Sakoor Dawood Patel, Mrs Bilkiss Banu Patel and Mohamed Patel (Appellants) v Anandsing Beenessreesingh and SICOM Ltd (Respondents)
From the Supreme Court of Mauritius
JUDGMENT DELIVERED BY
23 MAY 2012
Heard on 26-27 March 2012
Subash Lallah SC
(Instructed by MA Law (Solicitors) LLP)
Antoine Domingue SC
(Instructed by Edwin Coe LLP)
"However as at today, six years after the accident, she is still 100% incapacitated and dependent. She needs twenty-four hour care and is unable to do any single thing by herself, she has to be fed, bathed, cleaned and needs permanent care and attention. Medically speaking, there is not much hope that she will make a complete recovery and according to Dr May, the neurosurgeon who is treating her in Mauritius, it is difficult to envisage that she will ever be able to completely take care of herself. The maximum physical improvement in the long term, as to which there is only a hope, is that she is able to stand up, walk a few steps and say a few words, express herself and respond better. She has, according to the doctor, a good level of understanding, a good memory and she remembers people and previous experiences, she understands much more than she can express. The discrepancy between what she understands and what she can express, is a great distress to her. However her mental level cannot be tested because she must improve physically in the first place so that she is physically able to use her mental development. In fact, according to her mother, Shabana knows in what state she is and suffers when she sees herself in that condition. This stresses her, at night she is often found staring at the ceiling and unable to sleep."
Material damages up to judgment
(1) They made the same point as Mr. D'Unienville had made about the use of a uniform price for both business and economy class air tickets.
(2) The records of the immigration authorities showed 11 round trips to India by Mr. Patel and 9 by Adil Patel, as against the 13 and 11 round trips which they claimed to have made. The Court of Appeal added that the trial judge had "failed to consider the necessity of all these visits [to India] and their duration"
(3) They referred to evidence by Mr. Patel that he had received payments from the government of Mauritius of Rs. 200,000 a month towards the hospital bills, and the cost of the air fares, for which no credit had been given.
(4) There was a minor multiplication error in Document P20 (the amount of the global invoice from the Hotel Royal at Vellor, namely Rs. 3,868,509, was said to be Rs. 3,680 x 1051 days, when it was in fact slightly more than that). The Hotel invoice had described the total as "amount due" when at the date of issue (February 2007) it must already have been paid.
(5) The amount charged for hospital bills, at I.Rs. 2,700,000, was said to represent 36 months at I.Rs. 75,000 per month. However, the latter figure was based not on an invoice but on a projection of costs prepared by the hospital in October 2005, shortly before Shabana's second stay at Vellore. It was unclear whether an "in-patient discharge bill" recording expenditure in the last week of Shabana's second stay in Vellore together with the cumulative balance of previous bills related to services supplied separately or to supplies covered by the I.Rs. 75,000 per month of estimated hospital charges.
(6) A global statement from Metro Medicals for I.Rs. 488,444 for the supply of medicines and equipment did not identify the patient.
(7) No attempt had been made to explain why Mrs. Patel had not found cheaper accommodation at Vellore than the Hotel Royal.
(8) Mrs. Shobha Devi was alleged to have worked for the Patels for 48 months, but was in Mauritius for only 21 months. In the absence of documentary evidence of the sums paid to her, it would be necessary to guess what she was paid during whatever period she was really employed.
(9) Mr. Lepoigneur's bill for the works at the family home was insufficiently detailed, and Mr. Patel had not paid it.
(1), (3) These points have been dealt with above, and to some extent accepted.
(2) Mr. Patel and Adil gave unchallenged evidence that they had made 13 and 11 round trips to Vellore respectively. It is true that this does not match the records produced by the immigration officer, which showed 11 and 9 trips respectively. The Board does not know what the explanation is, and it is not inclined to speculate given that the question was not explored at the trial with Mr. Patel, Adil or the immigration officer. As to the number of visits by Mr. Patel and Adil, there was some evidence that Shabana needed visits from her family during the long period that she had to spend in rehabilitation far from home. That evidence might or might not have withstood a strong challenge by the Defendants, but the fact is that it was not challenged at all.
(4), (6) These points appear to the Board to be insubstantial. They afford no ground for impugning the authenticity or evidential value of the documents. The items listed in the Metro Medicals invoice are consistent with the known needs of Shabana while she was at Vellore, as are the dates on which they are said to have been supplied.
(5) This is on its face a more substantial complaint, but it was not pursued in cross-examination of Mr. Patel beyond a wholly general suggestion that it was unbusinesslike, unprofessional or negligent for Mr. Patel to have retained no further documentation. In response, Mr. Patel candidly acknowledged that he might have been negligent in failing to produce more, but he said that Rs. 75,000 a month was the average that he had had to pay for treatment in a Deluxe room. Turning to the in-patient discharge bill, Mr. Patel said that the Rehabilitation Institute, which had produced the projection of Rs. 75,000 a month, was attached to the Christian Medical College which had produced the discharge bill, but that it was a distinct department. The discharge bill related to extras including electro-stimulation treatment, MRI scans and the like, which was payable on top of the basic rate for treatment in the Rehabilitation Institute. Cross-examining counsel left it at that. It is fair to say that some of the items in the discharge bill are things that one would expect to be included in the basic rate per month for treatment, but the position is by no means clear. Since this matter was not explored any further at the trial, the Board is not willing to make assumptions adverse to Mr. Patel or to reduce the award on that account below the figure which the judge awarded.
(7) It was never suggested at the trial that Mrs. Patel's accommodation at the Hotel Royal was unduly expensive. There was no evidence that suitable alternative accommodation was available more cheaply. The evidence was that she paid a discounted price, which was not obviously excessive. It can certainly not be called extravagant on the limited evidence before the judge. If the Defendants had wished to suggest otherwise, they would have had the burden of proving it and could reasonably have been expected to lead evidence to that effect.
(8) The Court of Appeal referred to the fact that Mrs. Shobha Devi spent only 21 months in Mauritius as if this was inconsistent with Mr. Patel's claim that he employed her for 48 months. In fact, the evidence was that she was hired in India and had attended to Shabana at night at Vellore as well as in Mauritius. Mr. Patel's evidence that he paid her Rs. 14,000 a month was not challenged in cross-examination. He was merely criticised for not having documented it.
(9) Mr. Lepoigneur's bill for the alterations to the family home appears to the Board to have identified the works in sufficient detail to demonstrate that they were related to Shabana's needs. No one has suggested at any stage that these works were not necessary, or that they were not in fact carried out, or that a liability to Mr. Lepoigneur was not incurred in the amount invoiced.
Future material damages
"Bearing in mind that (a) there was already on record a letter dated 06 October 2005 that the cost of treatment and rehabilitation in a Deluxe room in the Rehabilitation Unit of the Christian Medical College, Vellore is Rs 75,000 per month exclusive of food, medicine and investigation; (b) the evidence of Dr. May that the condition of Ms Shabana Patel, although still in need of constant care and personal attention, has improved and will continue to improve; (c) our legislation already provides for the payment of a basic invalidity pension and a carer's allowance and it was conceded that Ms Shabana Patel was in receipt of both benefits; (d) the learned trial Judge wrongly referred to "moral elements which might be suffered by the parents" when assessing the amount of material damages for future treatment; (e) Mr Sakoor Patel appeared bent on exaggerating the figures claimed; and (f) the sums claimed for expenses already incurred have been shown to have been grossly exaggerated and have been reduced, we take the view that an award of Rs 3 million for future expenses in relation to the continued treatment of Ms Shabana Patel would be a fair and reasonable one in the circumstances."
"Notwithstanding any other enactment, where any person is adjudged by a Court to be liable in damages pursuant to article 1382, 1383 or 1384 of the Code Civil Mauricien in respect of a road accident or an accident at work, the Court may order that he shall pay interest on the judgment debt at 15 per cent or such other rate as may be prescribed by Rules of Court made by the Judges from the day on which the action was started unless the Court is satisfied that there are good reasons for ordering such payment from the date on which the pleadings were closed, up to the date of payment."
The power is discretionary ("may"). But if the section is read literally, it is a somewhat inflexible discretion. The only rate prescribed is 15%, no alternative rate having been prescribed by rules of court. There are only two permissible starting points for the running of interest, namely the commencement of proceedings and the close of pleadings. Interest, if it is awarded at all, is on the face of it to be awarded on the whole of the damages ("on the judgment debt"). However, the Board is satisfied that these results, which would oblige a court to award too little interest or too much, cannot have been intended. The prescribed rate must, it considers, be regarded as a maximum. And, while the commencement date for the running of interest under section 197A is prescribed by the section, it must in the Board's opinion be open to a court to award interest up to judgment only, on the footing that interest will run thereafter under Article 1153 of the Civil Code. Moreover, where different parts of the damages for which judgment is given have accrued at different times, a court may award interest on some parts but not on others. The Board is confirmed in this opinion by those decisions of the courts of Mauritius which show that that is how the section has in practice been applied. It has been held that interest under section 197A should not be awarded on moral damages in respect of any period before judgment: see Central Electricity Board v Munian  SCJ 255, and Houareau v. Paul et Virginie  MR 44. The same rule has been held to apply to damages representing the loss of future earnings: Manan v Sun Insurance Company  SCJ 83.
"... not substantial and does not raise entirely new issues which are different from or inconsistent with the issues in the original plaint. Indeed evidence relating to material damages was adduced in the course of the trial without any objection from the Defendants. Allowing the amendment will in fact merely bring the pleadings in line with the evidence on the record."
At the most, the amendment may have extended the trial for some three months from March 2008, when the application to amend was made, to June 2008 when, after the amendment was allowed, Mr. Patel was recalled for further cross-examination upon it. However, the effect of the Court's decision not to award interest, if it stands, will be to deprive the Plaintiffs of compensation for being kept out of the money due to them for a period of at least nine years. The financial impact of that decision on them is altogether disproportionate to any consequences which can be attributed to the delay in pleading material damage.