University of Technology, Mauritius v Gopeechand

A contractual obligation to provide employees with transport home may arise from a separate transport agreement, even where transport is not part of the contract of employment. The agreement’s classification as an obligation de résultat or an obligation de moyens determines the burden of proof. Where the employer’s driver negligently fails to exercise reasonable care, the employer may be liable for breach of an obligation of means. An appellate court should not permit a party to raise a new contractual characterisation where doing so would cause serious injustice and would not have altered the evidence. Authorities concerning travel in the course of employment for insurance purposes do not determine an employer’s liability for transport it arranged.

The respondent was injured in a road accident while being driven home after working late by another employee of the appellant university. The transport had been requested and approved using the university’s application form. The Intermediate Court held that the form, supplemented by oral evidence, established a contract of transport and that the university was liable for breach of its duty to provide safe transport.

The Supreme Court of Mauritius upheld that decision on 23 May 2017. On appeal to the Privy Council, the central issues were whether a separate transport contract existed, whether its terms were sufficiently certain, whether the obligation was one to achieve a specified result or merely to exercise reasonable care, and whether the accident occurred in the course of the respondent’s employment.

1. Appeal dismissed. The Board agreed, for somewhat different reasons, that the university was liable in damages for breach of contract.
2. The approved application form was not treated as a complete written contract. It was a commencement de preuve par écrit, admissible as evidence of the existence and terms of the transport agreement, which could be supplemented by other evidence. The university’s approval of the application, the provision of transport, and the absence of evidence suggesting that the driver acted independently entitled the Magistrate to infer that the university had requested the driver to provide and drive his car.
3. The contract of transport was separate from the contract of employment. The Board considered that its classification did not affect the result on the undisputed facts. If it imposed an obligation de moyens, the university was bound to use the care and diligence of a reasonable person through its agent. The driver’s careless driving therefore constituted breach by the university. The distinction principally concerns proof: under an obligation of means the creditor proves failure to take the requisite care; under an obligation of result, once non-achievement is shown, the debtor must establish a cause étrangère.
4. The university had not argued at trial that the agreement was an obligation of means. Allowing it to raise that point on appeal would have caused serious injustice, since it would not have led to different evidence.
5. The authorities concerning whether an employee was travelling in the course of employment for the purposes of an employer’s liability policy were distinguishable. They did not govern liability where an employer arranged transport for its employees. The Board therefore dismissed the appeal and invited written submissions on costs within 28 days of promulgation.

• Privy Council: Appeal dismissed. The Board agreed with the Supreme Court’s conclusion, for somewhat different reasons.
• Supreme Court of Mauritius: Judgment dated 23 May 2017 upheld the Intermediate Court’s finding that the appellant was liable for breach of the transport contract.
• Intermediate Court of Mauritius: Judgment dated 30 May 2014 held that the application form, supplemented by other evidence, established a contract of transport and that the appellant was liable in damages.