Supreme Court of Mauritius, 30 juin 2020, 2020 INT 79 – RAGINEE TIRVASSEN V GPO LIMITED AND ANOR

1 RAGINEE TIRVASSEN V GPO LIMITED AND ANOR

2020 INT 79

CN:- 1367/17 & 1368/17 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Raginee Tirvassen Plaintiff v/s 1. GPO Limited 2. Riasouddeen Jeerooburkhan Defendants And In the matter of:- Raginee Tirvassen Plaintiff v/s 1. GPO Limited 2. Javed Beeharry Defendants RULING The plaintiff is claiming the sum of Rs. 500,000 as damages from the defendants jointly and in solido in both cases for the prejudice she suffered as a result of the acts and doings of defendant no. 2, in the respective cases. Defendant no. 2 has been styled as the préposé of defendant no 1 and the latter has been styled as the commettant of defendant no. 2 in each case. Basically the plaintiff has averred in both cases that defendant no.2 falsely reported her at her place of work to defendant no.1, her employer, who acting upon same, administered a

2 severe warning to the plaintiff. The plaintiff has further averred in CN 1368/17 that she was also requested by defendant No. 1 to appear before a disciplinary committee further to the report submitted by defendant no. 2 in that case. She has averred that the acts and doings of defendants no. 2 in the respective cases constitute ‘faute’ and have caused trouble, annoyance prejudice and damages to her.

The defendants in both cases have raised a plea in limine litis, which is being resisted by the plaintiff. Counsels have moved that the two cases be consolidated for the present purposes. A single ruling shall therefore be delivered and filed in each case.

The plea in limine reads as follows: “1. The Defendants move that the Plaint be set aside in as much as the present claim is in breach of the principle of ‘non-cumul’. 2. The Defendants move that the Plaint be set aside in as much as the Plaintiff has failed to disclose that she entered a plaint before the Industrial Court with the same set of facts. 3. The Defendants aver that the present plaint does not disclose a cause of action against them. 4. The Defendants therefore move that the present Plaint be set aside. WITH COSTS.”

Arguments were heard. I note at the outset that no submissions were offered in respect of paragraph 2 of the plea in limine. The prayer under paragraph 2 is therefore set aside.

Under paragraph 1 of the plea in limine litis Counsel for the defendants submitted that since the plaintiff was employed by defendant no.1 at the time of the alleged incident and what has been averred in the plaint “découle du contrat”, she is now precluded, on the authority of Mediterranean Shipping Company Ltd v/s Sotramon Ltd 2015 PRV 105, from entering an action in tort against her employer and that she ought to have grounded the present action on contract.

Counsel for the plaintiff for his part submitted that the present action is grounded in tort because the defendants no. 2 were not allowed to behave in the way that they did towards the plaintiff. The averments of the plaint are in respect of the acts and doings of defendant no. 2 which amount to faute. There is no contract between the plaintiff and defendant no. 2 and thus the basis of plaintiff’s action against defendants no.2 can only be in tort. As far as defendant no. 1 is concerned, it is vicariously liable for the faute of its préposé. He therefore submitted that “les

3 conditions de mise en jeu de la responsabilité contractuelle” are not “réunies” in the present case.

I have duly considered the submissions of both counsel. The legal position It is now an established principle of law that where there is a breach of a contractual obligation, any claim must be grounded on the basis of contractual liability and there is no option to sue in tort.

In the case of Pyneeandee A P v Air Mauritius Limited & Anor [2018 SCJ 57], the Learned Judge summarized the ‘principe de non-cumul’ in the following terms:

“It is apposite at this juncture to refer to the recent case of Mediterranean Shipping Company v Sotramon Limited [2015] UKPC 23. The Judicial Committee of the Privy Council observed that:

“23. The structure of the Mauritian Civil Code relating to contract and tort follows closely the provisions of the French Civil Code as it was before the reform of French contract law in 2016, and the influence of French Law is reflected in Mauritian case law.”

[…]

It is therefore now settled after many years of uncertainty and following the authoritative pronouncement of the Judicial Committee in the Mediterranean Shipping Company case that “Pursuant to the ‘non-cumul’ rule, liability is based either in contract only or in tort only and the basis of liability is an exclusive one. Moreover, there is now a well-established doctrine and jurisprudence that where there is a breach of a contractual obligation, any claim must be grounded on the basis of contractual liability and there is no option to sue in tort instead – Vide Data Communications Ltd v The State of Mauritius & anor [2017 SCJ 319]; see also Jaulim Plaza Ltd v Bramer Banking Corporation Ltd & anor [2017 SCJ 368] and Coindreau L. v Lemasson Y. [2017 SCJ 354].”

In the case of Raja G M H v The Mauritius Commercial Bank Ltd 2019 SCJ 62, the Learned Judge highlighted that “The Privy Council also made reference to the last case cited by learned counsel for the defendant, namely Cascadelle Distribution et Cie Ltée v Nestlé Products

4 (Mauritius) Ltd [2015 SCJ 120], where the appellate court had approved the statement that an action in tort is receivable irrespective of the parties’ contractual relationship if the breach also amounts to a “distinctive” faute dolosive, faute intentionnelle or faute lourde, the law Lords observing that if “distinctive” meant that there could be conduct which could give rise to a cause of action independently or irrespective of the parties’ contractual relationship, that would be acceptable.”

Analysis It is common ground that the plaintiff was an employee of defendant no. 1 at the time of the alleged incident and due to such fact, one would tend to think that the action of the plaintiff against defendant no. 1 ought to be grounded in contract. However, the court also has a duty to consider the facts averred as a whole and consider whether the present action falls within the exception to the rule of non-cumul.

In CN 1367/17, ex facie the plaint, the plaintiff has averred at paragraph 3 that the report which defendant no. 2 submitted to defendant no. 1 and the “statement mentioned therein are false, made maliciously, with the intention to nuire and put in jeopardy her professional career.”

At Answer 13 of the Answer to further and better particulars dated 31 October 2018, the acts and doings referred to at paragraph 7 of the Proecipe, have been particularised as follows:

”Laying false charges against the Plaintiff so that she is convened before a disciplinary committee based on false charges, severe breach of trust by the Defendants to circumvent the lawful payment of severance allowance causing unnecessary anxiety and distress in order to unveil the whole deceptive and twisted design by the Defendants and having to come to Court for justice against Defendants acting in bad faith to tarnish her reputation and career whilst she being innocent.”

And faute as averred at paragraph 8 of the Proecipe has been particularized at Answer 15 of the Answer to further and better particulars dated 31 October 2018, as follows:

“Bringing false charges, convening a false disciplinary committee based on false charges and an admitted false report against the plaintiff.”

5 In CN 1368/17, the plaintiff has averred at paragraph 7 of the proecipe that “Defendnat no. 2 concocted a plan for Defendant no. 1 to take disciplinary action against the Plaintiff…”.

The acts and doings referred to at paragraph 13 of the Proecipe have been particularised at Answer 21 of the Answer to further and better particulars dated 13 September 2018, as follows: “To trigger an investigation based on false and malicious allegations which lead to disciplinary action on false charges.”

And at Answer 23 of the Answer to further and better particulars dated 13 September 2018, the particulars of the faute averred at paragraph 14 of the Proecipe have been provided as follows:

“Trigger a false Disciplinary committee based on false charges and holding the Plaintiff responsible for a day on which she was absent. Then changing the date of the incident to a date on which she was present. Persecuting an innocent person and abuse of the authority and power to oppress the innocent person.”

From the above, I note that the averments made in the respective cases reveal that the plaintiff was prejudiced by the alleged false, malicious and intentional acts and doings of the préposés of defendant no. 1. Consequently, I find that it cannot be said, ex facie the plaint, especially when no evidence has been adduced and the terms of the contract between the plaintiff and the defendant no. 1 are not before this court, that the present action is based on an alleged breach of the contractual obligations of defendant no. 1. I further find that the mere existence of a contractual relationship between the plaintiff and defendant no. 1 is not sufficient, at this stage, to conclude that the plaintiff ought to have pursued her claim in contract. As far as the string of cases, to which counsel for the defendants referred in his submissions, are concerned, I am of the view that the facts of the present case have to be distinguished from the facts averred therein.

In light of the above therefore, I find that the “conditions de mise en jeu de la responsabilité contractuelle” cannot be determined ex facie the plaint at this stage and that the point in law raised by counsel for the defendants is premature. For such reasons, the plea in limine litis is accordingly set aside. With costs.

I.Dookhy-Rambarun (Mrs)

6 Magistrate, Intermediate Court 30 June 2020