General Construction Limited v Chue Wing & Co Ltd and another (Mauritius)

Under Code civil article 1384, liability for damage caused by a thing under a person’s guard does not depend on proof of faute. The gardien bears the burden of proving force majeure. The practical inquiry is whether, once the relevant event was foreseeable, the gardien took every precaution reasonably and practicably possible. General foreseeability of cyclones is insufficient by itself; the particular conjunction of circumstances must be assessed. An operator need not make an accident absolutely impossible, but must check that its crane can withstand known cyclone conditions. The appellant failed to establish force majeure, and the appeal was dismissed.

During Cyclone Hollanda in Mauritius, the upper sections of a crane owned and operated by the appellant fell onto neighbouring premises. The first respondent was the landlord and the second respondent was the tenant whose property and business were damaged.

The trial judge rejected the respondents’ case based on faute under article 1382, but held the appellant liable under article 1384 because the cyclone was not unforeseeable and therefore did not constitute force majeure. The Supreme Court of Mauritius, Court of Civil Appeal, upheld that conclusion on 31 January 2011. The appellant appealed to the Board on the force majeure issue and challenged an addendum awarding interest to the second respondent.

Lord Mance delivered the judgment of the Board.

1. Liability under article 1384. The absence of faute under article 1382 did not prevent liability for damage caused by a thing under the appellant’s guard. The burden lay on the gardien to prove that the damage was caused by force majeure or the exclusive fault of the victim.
2. Force majeure. French and Mauritian law traditionally identified exteriorité, imprévisibilité and irresistibilité as constituent elements. The Board left their precise interrelationship undecided. It proceeded on the basis accepted by the appellant that, once the relevant event was foreseeable, the gardien had to show that it had done everything reasonably and practically possible to prevent the loss. Mere absence of negligence or faute was insufficient.
3. Practical foreseeability. The duty was to address the conjunction of circumstances causing the accident. It did not require precautions making freak accidents absolutely impossible. Nor did the mere emergence of a possible cyclone, or a warning received too late to dismantle a crane safely, necessarily require dismantling.
4. Application. A responsible crane operator had to check that its crane could be expected, barring freak circumstances, to survive cyclones of a type previously known to occur, including cyclones involving wind gusts exceeding 200 kmph. The appellant called no evidence from the manufacturer, the person responsible for selecting the crane, or a crane expert concerning its capacity. It therefore failed to establish force majeure. A latent defect in the collar would not have satisfied exteriorité.
5. Interest. The Board declined to decide finally whether the Court of Civil Appeal was functus officio when it issued the addendum. Under The Central Electricity Board of Mauritius v Bata Shoe Company (Mauritius) Ltd (PC Appeal No 36 of 1979), the Board had jurisdiction to make an interest order to achieve, so far as possible, complete justice. An order for interest at the legal rate from the second respondent’s statement of claim until satisfaction was appropriate. The appeal was dismissed on both issues.

1. Privy Council. The Board dismissed the appeal on the force majeure issue and the ancillary interest issue: [2013] UKPC 30.
2. Supreme Court of Mauritius, Court of Civil Appeal. On 31 January 2011, the Court upheld the trial judgment. By an addendum dated 16 February 2011, it ordered interest in favour of the second respondent.
3. Trial court. K P Matadeen J held the appellant liable in a judgment delivered on 31 May 2004, following a trial heard in June 1997 and November 1998.