The case of Mooradally B. N. v Gunessee R. & Ors (2025 SCJ 62) involved a tragic medical negligence claim: a young woman died after liposuction surgery. Her mother initiated proceedings against the surgeon, clinic, and anaesthetist, arguing that they had breached their contractual obligations and had acted negligently.  The judgment has clarified the circumstances under which a plaintiff can base a claim on tort when a contractual relationship exists, particularly in medical negligence cases.

Understanding the principe de non-cumul

The principle of non-cumul prevents a party to a contract from seeking damages in tort (faute délictuelle) for a breach of contractual obligations (faute contractuelle). The rationale is that contractual liability should be governed by the terms agreed upon by the parties, while tortious liability applies only when there is no contract. This principle ensures that liability is confined to the legal relationship governing the parties, thereby preventing claimants from circumventing the limitations of one regime by invoking the other. The French Cour de Cassation has consistently upheld this principle, stating that a contractual fault cannot be converted into a faute délictuelle.

Defendants’ Arguments

All three defendants argued that the plaintiff's claim was inadmissible because it simultaneously invoked contractual and tortious liability, thereby violating the principle of non-cumul. Specifically, the defendants contended that:

• The deceased had entered into a contractual relationship with them for medical treatment.
• Any liability should be governed solely by contractual principles.
• The plaintiff's attempt to frame the same facts as both a faute contractuelle (breach of contract) and faute délictuelle (tortious fault) was legally impermissible.

Court's Analysis and Decision

The Supreme Court dismissed the plea of non-cumul, holding that the plaintiff, as a third party to the contract, was not bound by the principle. Key findings included:

1. Contractual Relationship Between the Deceased and Defendants
   • Citing DSA Company Ltd The Ministry of Public Infrastructure (2013 SCJ 485), the court reiterated that medical liability in Mauritius arises from contractual obligations, not tort, absent exceptional circumstances (e.g. unconscious patients treated without consent).
2. The Plaintiff’s Status as a Third Party (Victime par Ricochet)
   • The plaintiff, as the deceased’s mother, was not a party to these contracts and had no contractual claim against the defendants.
   • As a third party (tiers), she was entitled to claim damages in tort for personal prejudice suffered due to the wrongful performance of the contracts.
   • The Court relied on the arrêts Boot Shop (Cass. Ass. Plén., 6 octobre 2006, n° 05-13.255) and Bois Rouge (Cass. Ass. Plén., 13 janvier 2020, n° 17-19.963), which held that a third party may invoke responsabilité délictuelle for damages suffered due to a contractual breach.
3. Proper Framing of the Claim
   • The Court noted that the plaintiff had correctly structured her claim by linking her personal loss to a tortious fault rather than a breach of contract.
   • Her claim was not seeking redress for the breach of contract itself but for the harm suffered due to the alleged medical negligence. References to contractual breaches were contextual, serving to establish causation rather than dual liability.
   • Thus, there was no violation of the principe de non-cumul.

Conclusion

The Supreme Court’s decision in Mooradally B. N. v Gunessee R. & Ors is a significant affirmation of the principe de non-cumul in Mauritian civil law. It reinforces the rule that contractual liability cannot be transformed into tortious liability when a contract exists. However, it also clarifies an essential exception: a third party to the contract (tiers) can validly claim damages in tort for harm suffered as a consequence of a contractual breach. This judgment thus upholds legal certainty while ensuring justice for indirect victims of contractual wrongdoings.