This article was written by
Erwyn Durman in collaboration with
Andre Robert (Senior Attorney) and
Noor Mungur from Mauritian law firm, BLC Robert & Associates
In the Judgment of Moollan I. v Mosaheb M. & Ors 2023 SCJ 34, the Mauritian Supreme Court awarded more than MUR 200 million to Mr Moollan (the claimant), who was involved in a road accident over 19 years ago.
On 29 April 2004, the claimant was travelling on a dual carriageway when he noticed an oncoming vehicle travelling in the opposite direction on his side of the carriageway. To avoid a head-on collision, he swerved, crossed the dual carriageway, and ended in a ditch in a sugar cane field.
The claimant sued the negligent driver of the oncoming vehicle, the owners and insurer of this vehicle. The claimant, a qualified lawyer and barrister, was 35 years old at the time of the accident. The accident left him with a permanent incapacity assessed at 50%.
The insurer was sued on the basis that it was vicariously liable for the acts and fault (faute) of the driver.
Factual conclusions of the Supreme Court
Based on the evidence, the Supreme Court concluded that the accident was caused by the
faute and/or imprudence and/or negligence of the driver. The negligent driver, the owner and the insurer of the vehicle were
jointly and in solido liable for the damages suffered by the claimant as a result of the accident.
Determination of the quantum of damages – loss of earnings
The claimant claimed both material (past and future medical expenses and loss of earnings) and moral damages (pain and suffering, and loss of amenities). Notably, he was highly qualified and was starting a successful practice as a barrister prior to the accident.
In Mauritian civil law, the underlying principle of an award for damages is that it should place an injured party in the same financial position that they would have been in but for the injurious event (in this case, the road accident).
Applying this principle to loss of earnings is complex, because a Court is required to make the most accurate determination possible on the lump sum to be awarded. The Supreme Court applied the same approach proffered in the
Patel case1 to determine future loss of earnings:
- An estimate of the injured party's future annual earnings and the number of years during which they would have worked after the accident;
- Applying a multiplier to the expected annual earnings of the injured party to calculate the capital sum that will produce an equivalent income over the period during which they would have worked;
- The multiplier is determined by the number of years of earning and a discount for accelerated receipt reflecting the same assumed rate of return on capital.
The objective of the above calculation is to arrive at a lump sum which, if invested, would generate an annual income (allowing for future inflation and income tax) equivalent to the amount the injured party would have otherwise earned, to support them through to retirement.
Ultimately, the Supreme Court found that the claimant's claim for future loss of earnings was in line with the premises and parameters set out in
Patel. He was awarded MUR 134.5 million, in toto, for this head of damage.