Supreme Court of Mauritius, 4 février 2020, 2020 INT 20 – Turbo Transport Co Ltd v Cargo Handling Corp. Ltd & Ors

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Turbo Transport Co Ltd v Cargo Handling Corp. Ltd & Ors

2020 INT 20

CN364/2019 THE INTERMEDIATE COURT OF MAURITIUS

(CIVIL)

In the matter of: – Turbo Transport Co Ltd Plaintiff V/s

1. Cargo Handling Corporation Limited 2. Neermul Chintamunee 3. SICOM General Insurance Limited Defendants JUDGMENT

The present claim for damages in the sum of Rs727,775/- with interest and costs arises out of an accident which occurred on 9 January 2013 around 10.45am involving Prime Mover 4381OC00 owned by the plaintiff and forklift F35081 owned by defendant no.1, driven by defendant no.2 and insured with defendant no.3. The plaintiff avers that the Prime Mover, driven by its préposé, was stationary near the exit gate of SSR Terminal, Mer Rouge, next to the Customs office for verification when the forklift driven by defendant no.2 entered through the exit gate and knocked against it. The plaintiff avers that the accident occurred through the faute of defendant no.2 and alternatively that the defendants had the garde of the forklift and thus are liable for the prejudice suffered by the plaintiff as a result of the said accident.

The defendants admit the status of all parties and the ownership of the vehicles. They deny the other material averments in the plaint and aver that a warning sign excluding the liability of CHCL for loss, damage or injury to any person or vehicle was posted and “it would seem” (sic) that the Prime Mover was parked on the right side of the exit gate. The driver of the Prime

Mover was asked to move his vehicle and replied “li passé la” and he is solely responsible for the accident. They move that the plaint be dismissed, with costs, “with costs and interest” (sic).

The case for the plaintiff

The evidence for the plaintiff is in a gist as follows: Mr R. Rungloll was at Cargo Handling (“CHCL”) in lorry 4381OC00 on 9 January 2013 to remove a container and was parked with the engine off at 30 to 40 metres (“m”) from the Customs office – and not as indicated in the rough sketch – as he had not received clearance. A CHCL escort van entered, hooted and left and a forklift entered through the exit gate (Documents F, G and H). In cross-examination he said that the Escort driver told him that a machine was coming in. He (Rungloll) hooted but the forklift with its raised sprayer continued on and hit with his lorry, which was damaged. He could not do anything as the incident happened in a split-second. He was present when the police came and took measurements. There is a speed hump at the exit gate. He is familiar with the removal of containers from the port and its procedure and knows that CHCL heavy vehicles have priority, as per the signpost at the entrance gate (Document E). He is not aware that he was not allowed to park there.

He denied that Mr Oozeer stopped, told him to move and gave him instructions to move as the forklift was coming through, that his feet were on the steering wheel and he refused to comply with the instructions and replied “Li passé la”, that the driver moved forward to give him space to reverse, that he caused an obstruction and the forklift proceeded because he did not move and that the accident happened because he did not reverse or did not leave enough space or give priority to a CHCL heavy vehicle. He chose not to reverse, but he denied that this, and the fact that he refused to comply with the officer’s request caused the accident. He did not tell the police about the escort.

According to PS Bullee, the main enquiring officer, the entrance lane is 3.10m wide, the exit lane 7.80m wide and the forklift is 7.40m long and 4.30m wide. The lorry “was at the entrance” (sic) and the forklift was in front in the same lane. He identified and produced the rough sketch, the Road Accident Report Book and the Extract from Occurrence Book (Documents A, B and C).

Mr F. Nunnoo, Director of Best Auto Parts, confirmed that the company gave an Invoice to the plaintiff on 19 February 2013 in respect of the cost of repairs to Prime Mover 4381OC00: according to their records the repairs would have taken two to three weeks, more than three weeks. He does not remember when the plaintiff retained their services or when the repairs started.

Mr L. H. K. J. Leung Kong Fa, represents the plaintiff company (Document J), which is claiming Rs446,775 for repairs that it paid, Rs4000/day for 42 days for loss of use because they had to pay the driver and hire another lorry at Rs3000 to Rs4000 per trip and Rs1500/day for 42 days for loss of profit because he had to pay a driver, a helper and had running costs. He leaves the claim for damages for trouble to the appreciation of the court. The figures have been rounded-off as it was easier and there are no documents in support. He denied that the repairs would have taken only seven days: the 21 days mentioned were for the mechanic, but there was the painter. He chose the best mechanic workshop to avoid problems. He is asking for judgment in the amount of Rs727,775 plus interest and costs. The plaintiff does have a claim against the defendants, which claim is not exaggerated and unjustified, but is reasonable.

The case for the defendants

Mr I. Oozeer, Escort driver at CHCL, was escorting the forklift driven by Mr Chintamunee to SSR Terminal (“the Terminal”) on the material day. The forklift went through the exit gate and not the entrance gate as it was too big for the latter. Lorry 4381OC00 was before the Customs building near the green fencing – Document G. He stopped at the level of the lorry, the engine of which he believes was off, and told the driver to move as the forklift would not be able to go through: the driver’s feet were on the dashboard and he replied “Li passé”. He had to move as the forklift and another lorry were coming and for lorry 4381OC00 to reverse. The driver of the lorry did not comply with his instructions and the forklift collided with the stationary lorry. All this happened quickly and if the lorry had moved, there would not have been any accident. He does not know what has to be done if a vehicle does not move.

Mr N. Chintamunee, Terminal Officer, was driving the forklift on 9 January 2013. The forklift, which moves at about 20Kmh, has to be preceded by a CHCL Escort vehicle to open the way. He would drive on if his Escort gave him the clear. When he drives the forklift, he has low

visibility and his cabin being on the left side when facing forward he does not see people. He uses the Exit gate and the sprayer has to be raised using compression when entering the Terminal so as not to collide with buildings and he has no visibility when it is raised. He did not see the lorry, which was parked near the green fencing, when he was at the entrance gate, but only when he was on the speed hump and the lorry had not moved. The front wheels of the forklift do not move, only the rear wheels do and the forklift cannot be stopped immediately and it is not easy for him to instantly avoid anything in front. The forklift stops after about nine metres when brakes are applied. He could see clearly when the sprayer was raised, but he could not stop immediately. He tried to avoid the lorry at all costs, but could not and the wheel hit with the lorry. It is only when his forklift had entered that he could direct it to his lane and this could take two to three minutes. He denies that when he sees a vehicle in front he drives on it.

Mr G. Sam Soon, Motor Surveyor, was retained by SICOM General Insurance Ltd to survey the damages to the lorry, which he did on 9 January 2013 at SSR Terminal. He estimated the repairs at Rs161,150 (Documents K, L, L1 to L7). The claim of Rs446,775 and the loss of use of 42 days are exaggerated. It is possible that when the lorry was taken apart new damages became visible. He cannot say anything about the replacement of the cabin, but he would have allowed it if it had been justified. It is possible that the power steering needed to be replaced as he was not asked to survey that. The damages do not justify the jump of the duration of works from seven to 21 to 42 days. The wheel of the forklift is about eye level.

Discussion

The pleadings

I note that the plaintiff has pleaded in the “alternative” three times, at paragraphs 9, 10 and 11 in respect of the garde of the defendants. One of the fundamental rules of pleadings is ‘certainty’. In Odgers on Pleadings and Practice, Twentieth Edition, Chapter 8, Certainty it is said:

“Material facts must be alleged with certainty. The object of pleadings is to ascertain definitely what is the question at issue between the parties: and this object can only be attained when each party stated his case with precision. If vague and general

statements were allowed, nothing would be defined: the issue would be “enlarged”, as it is called: and neither party would know, what the case came on for trial, what was the real point to be discussed and decided. On the other hand, a party who pleads with unnecessary particularity may thereby fetter his hand at the trial, and lay on himself an increased burden of proof.”

I find that pleading “in the alternative” more than once is in contradiction with the principle of certainty in pleadings.

Mr G. Bhanji-Soni, counsel for the plaintiff, has submitted that there is a general denial in the defendants’ plea and it is not averred that the driver of the plaintiff’s vehicle refused to move it.

Still in Odgers, Traverses, page 138 it is said “It is not sufficient for a defendant in his defence to deny generally the allegations in the statement of claim…but each party must traverse specifically each allegation of fact which he does not intend to admit. The party pleading must make it quite clear how much of his opponent’s case he disputes….”

I have perused the defendants’ plea and I find that it does not contain only general denials and that the defendants have averred, albeit fleetingly, that the driver of the lorry parked his vehicle on the right of the exit gate in defiance of Port regulations, refused to move his vehicle and that he is the only one responsible for the accident. The plea could have benefitted from more precision, but the contents thereof convey the case for the defendants and once that is done, it is for the court to determine if the evidence adduced by the defendants support or not the averments in their plea.

Liability for faute

It is undisputed that the plaintiff was the owner of the lorry and that on 9 January 2013 it was parked near the exit gate of SSR Terminal, Mer Rouge when the forklift, driven by defendant no.2, entered through the exit gate of the Terminal. I find established from the evidence of Messrs Rungloll, Oozeer and Chintamunee that the forklift knocked against the lorry and that the said lorry sustained damages.

The issue is whether defendant no.2 was negligent, imprudent or lacked caution when he drove the forklift in that he failed to enter through the entrance gate, drove on the wrong side of the lane, failed to keep a proper lookout for other road users, failed to stop, slow down, swerve or otherwise steer or control his vehicle to avoid the collision, did not pay heed to other vehicles and failed to drive with due care and attention.

It is undisputed that the forklift is 4.30m wide so that it would not have been able to go through the entrance gate of the Terminal, which is 3.10m wide. Therefore, it stands to reason that the only way for it to enter the Terminal would have been through the exit gate which is 7.80m wide. Mr Rungloll conceded in cross-examination that the forklift had no alternative than to be driven through the exit gate because of the width of the entrance gate.

There is undisputed evidence on record that the forklift is a heavy vehicle and not easily manoeuvred, that only the rear wheels turn, that it takes time for the driver thereof to brake and that the vehicle would travel over a distance of some 9m before it would stop completely and that it is always preceded by an Escort vehicle, which acts as a scout for it. Therefore, the duty of the driver of the Escort vehicle, Mr Oozeer, would have been to open the way for the forklift, to ensure that it could go through without hitting anything and obviously to inform Mr Chintamunee of the presence of any obstruction and thus prevent an accident. It is to be noted that Mr Chintamunee said that he would continue driving whenever his escort driver gave him the all-clear. I accept as true the version of Mr Oozeer that he asked Mr Rungloll to move the lorry and that the latter merely replied that the forklift would go through and I find that the fact that Mr Oozeer had to ask Mr Rungloll to move his lorry means that the forklift would not have been able to go through. However, it was Mr Oozeer’s duty to remain where he was and not drive on in spite of another vehicle coming, to inform Mr Chintamunee of the obstruction and in such a manner as to give him enough time to slow down and stop. Mr Oozeer being the Escort vehicle he should not have driven on leaving Mr Chintamunee to continue on his way whilst being aware of the need for the lorry to move from where it was parked. It is to be noted that there is no evidence of the distance between the Escort vehicle and the forklift.

I am alive to the fact that Mr Chitnamunee said he does not have complete visibility when the sprayer is raised, but it stands to reason that he cannot drive the forklift blindly and must have

some vision and must at least see his Escort vehicle so as to be able to know when to drive on or not. I find that he also had a duty of care towards other road users, that is to keep a safe distance from the escort vehicle and to ascertain that he had clear instructions to proceed before doing so. From the evidence on record he did not do so. I am alive to the fact that he said he was on the speed hump when he saw the lorry and that such speed hump is somewhat wide – see Document G – but I note from the rough sketch – marked as Document A – that there is a distance of 17.60m from point O near the Security Post to the spot where the forklift stopped. Bearing in mind the fact that the forklift is 7.40m long, he ought to have been able to stop, had he been at a safe distance from the escort vehicle and had Mr Oozeer warned him that the way ahead was not clear.

It is also undisputed that Mr Rungloll parked the lorry in the vicinity of the Customs office and that he failed to give priority to the oncoming forklift, contrary to regulations 227(5) and (10) of the Ports (Operations and Safety) Regulations 2005 (GN No.52 of 2005) that a person shall not park a vehicle on any passage leading to any part of the port premises and that mobile cargo handling equipment has priority on all roads and other locations and the signpost at the Entrance gate to the same effect amongst others. It is to be noted that Mr Rungloll said that he was familiar with the procedure at the Terminal. Even if Mr Oozeer had merely hooted, as claimed by Mr Rungloll, he should have paid heed to such warning and be alive to the vehicle following the Escort vehicle, in this case the forklift. I bear in mind his admission that he decided not to move the lorry. The lorry and the forklift being respectively 2.90m and 4.30m wide and the exit lane being 7.80m wide it would have been impossible for the forklift to go through bearing in mind that the lorry would necessarily have left a minimum distance with the fencing on the left when facing the exit gate from inside the Terminal. This denotes negligence and want of caution also on the part of Mr Rungloll.

There is mention on the signpost that the CHCL will not be responsible for any damage caused to any vehicle on the Terminal. There is no evidence adduced from the defendants or any submissions that the said warning exonerates defendant no.1 from any civil action.

I note that Mr Rungloll also found fault with the measurements of the police since he said he was further away from the Customs office – 30m to 40m – than the 17.60m indicated in the rough

sketch. It was never the case for the plaintiff that the rough sketch was erroneous and PS Bullee was not cross-examined about it.

In the light of all the above I find that the accident was caused by defendant no.2, Mr Chintamunee, the driver of the forklift at the time for having failed to keep at a safe distance from the escort vehicle and ensure that he had clear instructions from Mr Oozeer before proceeding and as a consequence of the imprudence and want of caution of Mr Oozeer in letting the forklift proceed in spite of the presence of the lorry. It is to be noted that the plaintiff has not averred that defendants nos.1 and 3 are liable for the faute of defendant no.2, but since the defendants have admitted that defendant no.1 is the owner of the forklift and defendant no.3 the insurer thereof, their liability is incurred as a result of the faute of defendant no.2. In the circumstances, the plaintiff has established on a balance of probabilities that the accident occurred through the faute of defendant no.2 and that the defendants are liable for the damages sustained by the plaintiff.

Since I have found the defendant liable for faute there is no need for me to consider the liability of the defendants as gardiens of the forklift.

Damages and prejudice

I find from the evidence on record that the lorry sustained damages as a result of the accident. Therefore, the plaintiff is entitled to damages for the prejudice suffered. I have now to assess the quantum of such damages.

Once the court finds that the defendants have committed a faute and that the plaintiff is entitled to damages the ‘principe de réparation intégrale’ has to be respected in so far as material damages are concerned, subject of course to the plaintiff proving each and every item of such material damages.

Costs of repairs of Rs446,775

Mr Nunnoo did not testify about the repairs done to the lorry because he said it was too long ago and he could not remember. He only produced a Statement of Account: although Mr Leung

Kong Fa said that the plaintiff paid the costs of repairs no receipt was produced. In the light of the evidence of Messrs Nunnoo and Leung Kong Fa, I find more plausible the evidence of Mr Sam Soon, who stood the test of cross-examination and conceded that some other repairs might have been done when the lorry was taken apart, that the price quoted for the repairs is not justified. Allowing the possibility that additional repairs may have been done I allow the sum of Rs200,000 as costs of repairs.

Loss of use Rs168,000 (Rs4000x42 days) and loss of profit Rs63,000 (Rs1500x42 days)

Mr R. Rault, counsel for the defendants, has submitted that the plaintiff cannot claim both loss of use and loss of profit inasmuch as the plaintiff has not justified claiming loss of use from which it would have derived revenue and claiming at the same time profit of an inoperative vehicle.

I find that the incapacity of the plaintiff from using the lorry would include the failure to derive profit from it and that the plaintiff cannot claim both loss of use and loss of profit as the loss of profit is consequent to the loss of use. I find Mr Leung Kong Fa’s explanations for the claim of loss of profit unconvincing. The fact that the plaintiff could not make use of the lorry would have entailed the lease of another vehicle, but not necessarily the hiring of another driver and helper. There is no evidence on record that the usual driver and helper of the lorry were not able to work in the leased vehicle. Therefore, I find that the claim for loss of profit is not justified and in any event Mr Leung Kong Fa did not have any document in support of the expenses incurred for the lease of another vehicle, the hiring of another driver and helper.

I note that the mention that the works to the lorry took 42 days has been handwritten in the Statement of Account from Best Autoparts Co Ltd and that the testimony of Mr Nunnoo on the duration of the works was most unconvincing, going from two to three weeks to more than three weeks. Once more, Mr Leung Kong Fa’s clarifications that the 21 days were for the mechanic only are not plausible and unsupported by any documentary evidence. The evidence of Mr Sam Soon that the works would have taken seven days is more plausible.

It is to be noted that Mr Leung Kong Fa said that for ease he rounded the figures, which statement renders his evidence about the claim for loss of use (and for unnecessary trouble and annoyance) unreliable.

I therefore allow the claim for loss of use for seven days and as the defendants have not challenged or adduced any evidence to contradict the cost of Rs4000 per day, I allow the amount of Rs28,000 for loss of use.

Unnecessary trouble and annoyance Rs50,000

In the interlocutory judgment of Harel Freres Limited v G. Raffray & Ors [2016 SCJ 38] which is of persuasive authority, Chan Kan Cheong J. cites the following comment from Professeur Renaud Mortier on the judgment of Société La Pizzeria v Fournier, 15 mai 2012, in La Semaine Juridique, Entreprise et Affaires, no.36, 6 Septembre 2012, 1510:

« Dans le présent arrêt, la Chambre Commerciale de la Cour de cassation reconnait explicitement qu’une société – et ainsi probablement toute personne morale – peut demander réparation d’un préjudice moral. »

The Learned Judge went on to say the following: “As can be gathered, the above case was not for libel or defamation but a commercial one. It is also noteworthy that it was based on articles 1147, 1382 and 1383 of the French Civil Code. It is, therefore, well settled in France that a company may sue for moral damages even in a commercial case. There is no compelling reason as to why the same principle should not apply in Mauritius, especially as in the present case where the defendants are being sued in tort under articles 1382 and 1383 of the Code Civil Mauricien.”

The plaintiff can therefore claim damages for moral prejudice. I note that Mr Leung Kong Fa has prayed for judgment in the sum of Rs727,775 whilst at the same time leaving the assessment of the quantum of damages under the item ‘unnecessary trouble and annoyance’ to the appreciation of the court. The prayer cannot be reconciled with the statement of witness Leung Kong Fa.

Be that as it may, the question that arises now is whether the representative of the plaintiff has adduced evidence in support of the unnecessary trouble and annoyance the company went through. I find that apart from the fact that the plaintiff has had to cause the lorry to be repaired

there is no evidence of other unnecessary trouble and annoyance and since Mr Rungloll also acted negligently in not moving his vehicle when asked to do so, the claim of Rs50,000 is not justified. In the circumstances I find that a sum of Rs5,000 would adequately compensate the plaintiff for the moral prejudice suffered.

The plaintiff is also claiming interest. It is provided at section 197A of the Courts Act that interest on judgment debts in accident cases is payable at 15 per cent or any other rate “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.”

I find that the claim for interest as from the date of the lodging of the plaint is justified.

Conclusion

For all the reasons given above I find that the plaintiff has proved its case against the defendants on a balance of probabilities and I accordingly order the defendants to pay, jointly and in solido, to the plaintiff the sum of Rs233,000 with interest at 15 per cent as from the date of the lodging of the plaint until final payment and with costs.

W. V. Rangan Ag. President Intermediate Court

This 04 February 2020

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