Harvey and another v Brette and others (Mauritius)

An appellate court with broad statutory powers to draw factual inferences may decide factual issues itself rather than remit, particularly where the appellant invited that course and liability evidence is documentary. The absence of concurrent findings removes the ordinary restraint against going behind findings of two lower courts, but the final appellate court should remain considerably reticent before overturning the fact-finding court. An untested statement may carry no real weight where its maker was not called or cross-examined. Physical features such as brake marks or vehicle damage become meaningful only when supported by reliable evidence of the account they are said to corroborate. A party bearing the burden of proving exclusive victim fault or contributory negligence under the keeper-liability regime in the Mauritius Civil Code fails unless that burden is discharged by reliable evidence.

A seven-year-old pedestrian suffered catastrophic injuries in a road collision in Mauritius. He and his parents claimed damages against the driver and the vehicle insurer under article 1384, alinéas 1, 5 and 6 of the Mauritius Civil Code, alternatively alleging negligence.

The trial judge found liability on the basis of the statutory presumption and the appellants’ failure to prove the victim’s exclusive fault. The Court of Civil Appeal held that the judge had misdirected herself about the evidence required, but considered the evidence itself and upheld liability. The appeal concerned whether the case should have been remitted, whether the factual conclusions were wrong, and whether the documentary evidence established exclusive fault or contributory negligence.

Appeal dismissed with costs.

1. Appellate fact-finding. Sections 9 and 11(2) of the Court of Civil Appeal Act 1963 confer broad powers on the Court of Civil Appeal, including drawing factual inferences, giving the judgment or making the order that ought to have been made, remitting a case, or directing a new trial. The appellants had invited the Court of Civil Appeal to assess the evidence. The essentially documentary nature of the liability evidence was a compelling factor supporting its decision to determine the facts itself. The first ground therefore failed.
2. Restraint on disturbing findings. The Board’s ordinary practice of not going behind concurrent findings of fact did not apply because the trial judge had made no factual findings. Nevertheless, the Board would exercise considerable reticence before overturning the Court of Civil Appeal’s findings, since that court had been the fact-finding court and the Board had no oral evidence before it. The authorities cited on concurrent findings and the fact-finding trial, including Devi v Roy [1946] AC 508, Central Bank of Ecuador v Conticorp SA [2016] 1 BCLC 26, Juman v Attorney General of Trinidad and Tobago [2017] 2 LRC 610, Al Sadik v Investcorp Bank BSC [2018] UKPC 15, Anderson v City of Bessemer (1985) 470 US 564 and DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7, supported that approach.
3. Evidence and burden. The first appellant did not give evidence, his police statement was not tested by cross-examination, and there was no application for him to give evidence before the Court of Civil Appeal. It was therefore appropriate to attach no real weight to the statement. Brake marks, damage to the van and other matters on the police sketch could be meaningful only when considered with reliable evidence establishing the truth of the appellant’s account. They did not establish that the child had emerged from behind a bus or otherwise caused the collision.
4. Under article 1384 of the Mauritius Civil Code, the appellants bore the onus of proving that the harm was caused by the victim’s exclusive fault, and they also failed to prove contributory negligence. The Board did not decide whether a child of seven years and two months could be guilty of contributory negligence. The third ground, concerning the police materials and vehicle examiner’s report, likewise failed because the damage was not consistent only with the appellants’ account.

• Privy Council: Appeal dismissed with costs: [2021] UKPC 23.
• Court of Civil Appeal of Mauritius: The appeal from the trial judgment failed. The court held that the trial judge had misdirected herself about the evidence required to prove exclusive victim fault, but assessed the evidence itself and upheld liability.
• Supreme Court of Mauritius: On 15 March 2018, the trial judge held the driver and insurer liable under article 1384 of the Mauritius Civil Code and awarded MUR 10,100,000 including interest and costs.