BAUHAL Z & OTHERS v THE MUNICIPALITY OF PORT LOUIS
2007 SCJ 114
Record No. 61013
IN THE SUPREME COURT OF MAURITIUS
In the matter of:
1. Widow Zeda Bauhal
2. Mohammad Ally Reza Bauhal
3. Buibi Amina Bauhal
4. Ahmad Bauhal
5. Bibi Bilkiss Bauhal
6. Belall Bauhal
7. Bibi Katijah Bauhal
8. Yousouf Ally Bauhal
Plaintiffs
v.
The Municipality of Port Louis
Defendant
….
JUDGMENT
The plaintiffs are co-owners of a property situate at Borneo Street, Port Louis
which adjoins St François Xavier Stadium. They aver in an amended statement of claim
dated 10 April 2003, as further amended subsequently, that in the course of cyclone
Hollanda in February 1994 a lattice structure set up by the defendant in that stadium for
the purpose of providing lighting fell over their house and wall causing extensive damage
thereto. They further aver that the accident occurred through the fault of the defendant
or its préposés. That faute is particularised as “providing a defective splice joint to the
lattice structure which sheared during the cyclone.” In the alternative, the plaintiffs aver
that the lattice structure was at the time of the accident under the custody (“sous la
garde”) of the defendant. The plaintiffs accordingly claim from the defendant the sum of
Rs 225,000 as damages, with costs and interest at the legal rate. The damages are
particularised as follows:
(a) cost of repairs
Rs 125,000
(b) fees paid to Engineers and Quantity Surveyor
Rs 25,000
(c) trouble & annoyance & moral damages
Rs 75,000
In its amended statement of defence and by the conduct of its defence, the
defendant has made it clear that it is solely relying on the defence of force majeure.
Plaintiff No. 4, Mr. Ahmad Bauhal, deponed to the effect that the other plaintiffs
and himself are co-owners of a house situate at Borneo Street, Port Louis, opposite St.
François stadium. Inside that stadium there was an iron tower about 10 metres high,
which was under the control of the defendant, and which had been erected to provide
lighting to the stadium. During cyclone Hollanda, the tower fell on their house, damaging
it. The services of an engineer and a quantity surveyor were retained and they made
reports on the damage. His father, now deceased, agreed on a sum of Rs 125,000 for
the necessary repairs to be effected in 1997 or 1998 and paid Rs 15,000 as the
engineer’s fees and Rs 10,000 as surveyor’s fees. And the sum of Rs 75,000 is being
claimed by way of moral damages.
Mr. A.R. Oodally, a quantity surveyor, also gave evidence for the plaintiffs. He
produced two reports, which were marked Documents A1 and A2. He is the author of
Doc. A1 whilst Doc A2 is the report of the engineers. He received Rs 10,000 as his
fees. His report was dated 1997, three years after the incident. He did not survey the
actual repairs.
The last witness called by the plaintiffs was B. Dhunputh, a meteorologist from
the Meteorological Department in Mauritius. He produced a document (Doc. B)
containing information regarding cyclone Hollanda. He conceded in cross-examination
that cyclone Hollanda was one of the major cyclones which have visited Mauritius.
No evidence was adduced on behalf of the defendant.
Counsel for the plaintiff referred, in the course of his submissions, to the
evidence showing that the lattice tower broke when it fell over the wall of St. François
Xavier. The only conclusion to be drawn therefrom, in his submission, is that the tower
was not of sufficiently strong build whether at its base or in its body. He added that “la
garde” of the tower was admitted by the defendant and that the only outstanding issue
was that of “force majeure”. He invited me to take into consideration two judgments of
this Court, Chue Wing & Co. Ltd. v Ibrahim Cassam and 0thers, and Ibrahim Cassam &
Co. Ltd. v General Construction and anor [2004 SCJ 124] and Soondron & Anor v Swan
Insurance & Anor [2004 SCJ 125] which were both delivered on the same day. He also
drew my attention to the fact that more violent cyclones such as Carol and Gervaise had
been shown, in the evidence, to have visited Mauritius: in his submission, a cyclone of
the force of Hollanda was, in the circumstances, predictable.
Counsel for the defendant has submitted, in reply, by reference to French
authorities on “force majeure”, that the unpredictability of cyclones resides in that the
time and place of their occurrence or of their intensity cannot be foreseen. He argued,
moreover, that the two cases cited by Counsel for the plaintiff were distinguishable from
the present one. He also pointed out that, in the absence of expert evidence from an
engineer, it had not been established that there had been a “faute” in the construction of
the lattice, as averred in the amended statement of claim. Finally, on the issue of
quantum of damages in the event of liability, he submitted that the repairs had been
effected at higher cost three years after the accident, at a time when according to the
evidence the cost of construction had been going up by 5% each year. As far as moral
damages are concerned, he pointed out that no evidence had been ushered in that
connection and that any moral damages would have been suffered by the tenants who
were shown to have occupied the house at the relevant time, not by the plaintiffs.
After examining the evidence in the light of the submissions of Counsel on both
sides, my assessment is as follows:
(1) It is not in dispute that, as stated and illustrated in Documents A1 and A2,
the damage to the premises of the plaintiffs occurred following the fall of
a broken segment of a tall steel lattice tower which was on the site of the
Saint François Xavier stadium. The tower had been erected on the Saint
François Xavier stadium by the defendant to support floodlights, and had
collapsed when subjected to the strong winds of cyclone Hollanda. The
splicing joint on the lattice tower failed upon coming into contact with the
wall of the stadium, and the upper segment collapsed onto the road and
the house of the plaintiffs across the road.
(2) As far as the allegation of “faute” is concerned, I find that no sufficient
evidence has been placed before me to establish the allegation, in the
amended statement of claim, that a defective splice joint had been
provided to the lattice structure.
(3) The defendant, who has not disputed the custody of the lattice structure,
is however liable under Article 1384 of our Civil Code to make good the
damages which have been caused to the plaintiffs’ premises unless it
discharges the burden resting upon it of showing that such damages
have been caused by “force majeure”.
“Force majeure” is defined as “un évènement imprévisible et irresistible,
généralement extérieur à celui qui l’invoque” (Dalloz, Force Majeure, note 1). I agree
with the learned Judge in Soondron (supra) that a cyclone is “irresistible” and “extérieur
au gardien” but is not un évènement imprévisible” in Mauritius in the month of February.
As pointed out by the learned Judge in Fatehmamode & Co. Ltd v United Docks [1979
SCJ 430]:
“It is true that cyclone Gervaise was a cyclone of great violence but a
cyclone per se does not amount to ‘force majeure’ … Mauritius is
situated in the cyclonic zone and violent cyclones occur. It cannot be said
that cyclone Gervaise was an event which could not have been foreseen.”
As the evidence shows that cyclone Hollanda had been preceded in earlier years
by cyclones of even greater violence, I further hold that the intensity of cyclone Hollanda
was not unpredictable.
I accordingly find that the plaintiffs have established their claim under Article
1384 of the Civil Code. I now turn to examine the question of damages. I agree with
Counsel for the defendant that the repairs could have been effected earlier and the
damages thereby mitigated. I shall accordingly award Rs 110,000 as cost of repairs. I
must add to this the amount of Rs 25,000 representing the fees paid to the engineers
and quantity surveyor, as established in evidence. However, in the absence of evidence
as to trouble and annoyance caused to the plaintiffs, I shall only make a token award of
Rs 10,000 as moral damages. I accordingly order the defendant to pay to the plaintiffs
the total sum of Rs 145,000 as damages. With costs and interest as from the date of
filing of the amended statement of claim.
E. Balancy
Judge
7 May 2007
For Plaintiffs :
Mr. Attorney M.S. Baichoo
Mr. K. Bhayat S.C.
For Defendant :
Mrs. Attorney Z.I. Salajee
Mr. R. D’Unienville Q.C.