RADIANT INSURANCE COMPANY LTD v MUKANEZA

# RADIANT INSURANCE COMPANY LTD v MUKANEZA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-04-05 - Case/document no.: RS/INJUST/RC 00007/2023/SC - Collection: Supreme Court

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RADIANT INSURANCE COMPANY LTD v MUKANEZA [Rwanda SUPREME COURT-RS/INJUST/RC 00007/2023/SC (Cyanzayire, P.J, Hitiyaremye, Kazungu, J.) 05 April 2024] Law governing civil cases – Compensation for motorcycle accident injuries – Compensation for financial loss – The victim who sustained a permanent incapacity – The victim of an accident who sustained a permanent incapacity is entitled to compensation for financial loss regardless of whether he/she continued working or not. Overruling precedent – Compensation for motorcycle accident injuries – Compensation for hindrance of working experience – The victim of an accident who sustained a permanent incapacity is entitled to compensation for hindrance of working experience because the consequences of a permanent incapacity include the loss of a chance of promotion – This precedent overrules the existing one set out in the case RS/INJUST/RC 00010/2021/SC involving Prime Insurance Company Ltd and Uwimanimpaye Jean Claude, where such compensation was granted only to a person who had lost a job. Facts: This case originates from an accident caused by a motor vehicle insured by Radiant Insurance Company Ltd (Radiant), which caused to the victim an incapacity of 31%, as certified by doctors appointed by both sides.

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Both parties failed to reach an agreement, Mukaneza filed a claim before the Intermediate Court of Nyarugenge seeking various damages. The Court ruled that she should be granted the damages for financial loss and for hinderance of working experience. Radiant was dissatisfied with the verdict and appealed to the High Court, arguing that Mukaneza should not have been granted the damages for financial loss and hinderance of working experience because she kept on working and earning her whole salary. The High Court found that the appeal had no merit and simply modified the way the economic damages were calculated. Radiant applied for judgment review on grounds of injustice and once again the case was heard by the Supreme Court which determined the issues as to whether Mukaneza is entitled to economic damages and damages for disruption of professional experience. Radiant alleges that the economic damages are granted to the victim who lost his or her job and who has to prove that, and argues that Mukaneza did not prove any economic hardship because she kept on working and earning her whole previous salary. Radiant further contends that Mukaneza should not have been granted damages for hinderance of working experience because she is not entitled to such damages as established in the case RS/INJUST/RC00010/2022/SC decided on 02/12/2022 involving Prime Insurance Company Ltd and Uwimanimpaye Jean Claude. Mukaneza contends that the victim is not granted the damages for financial loss only when he or she lost his or her job permanently, and that what matters most is the fact

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he or she had sustained permanent incapacity, or which may deteriorate or had affected her because she resigned from the job due to inability to work outside the office, which required her to walk. She explained that she should be granted damages for hinderance of working experience because they are provided for by the law and she meets the conditions set by the law. Held: 1. The victim of an accident who sustained permanent incapacity should be granted compensation for financial loss regardless of whether he or she kept on working or not, thus, the Radiant’s claims are unfounded. 2. The victim of an accident who sustained a permanent incapacity should be granted compensation for hinderance of working experience because the loss of promotion is among consequences of a permanent incapacity, this precedent overrules the existing one set out in case RS/INJUST/RC 00010/2021/SC involving Prime Insurance Company Ltd and Uwimanimpaye Jean Claude, where such compensation was granted only to a person who had lost his job. The application for review lacks merit. Laws referred to: Law N o 02/2002 of 17/01/2002 modifying law-order no 32/75 of August, 1, 1975 relating to the compulsory civil liability insurance with regard to automotive vehicles, article 2;

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Law No 41/2001 of 19/09/2001 relating to the compensation of victims of physical accidents caused by motorized land vehicles, article 5 Presidential Order No 31/01 of 25/08/2003 relating to compensation for personal injury resulting from accidents caused by motor vehicles, articles 2, 18, 19. Cases referred to: Prime Insurance Company Ltd. v Uwimanimpaye Jean Claude, RS/INJUST/RC 00010/2022/SC, rendered by the Supreme Court on 02/12/2022. Legal wrtitings referred to: Yvonne Lambert – Faivre, Droit du dommage corporel, Systèmes d’indemnisation, 3ème édition, 1996, Dalloz, P. 100 § 57; S. BAEYENS, L. FAGNART, C JAUMAN, Tableau Indicatif 2016, Union Royale des Juges de Paix et de Police, A.S.B.L., La Charte, 2017, P. 13-14; Cassation, 2è chambre civile, 23 mai 2019. Judgment I. BACKGROUND OF THE CASE

On April 9, 2019, a Radiant-insured TVS Victor RE 012 G motorcycle crashed, and wounded its passenger Mukaneza Clarisse, and those wounds resulted

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in an incapacity of 31%, according to a team of doctors appointed by both sides.

No agreement on compensation to be paid was reached, which sparked Mukaneza Clarisse to file a case before the Intermediate Court of Nyarugenge, and her claim was registered under file case No RC 00743/2020/TGI/NYGE.

As per her claim, she requested the following damages:  Compensation for financial loss;  Compnsation for the cost of pain (pretium doloris);  Compensation for aesthetic damage;  Compensation for hinderance of working experience ;  Medical fees, travel fees, the cost of case file and other expenses ;  Advocate fee and procedural fee.

Radiant contended that Mukaneza Clarisse should not have been granted compensation for financial loss and for hinderance of working experience, because after the accident, she kept on working and earned her salary normally, and the defendant relied on the evidence she produced herself: her payslip and the statements issued by RSSB.

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It also contended that Mukaneza Clarisse was not entitled to compensation for aesthetic damage because no rate of aesthetic damage was assessed by the arbitrators, meaning that they did not find it out. With regard to the medical expenses, travel fees and other expenses, Radiant alleges that they are set to pay those expenses accounted for worth 927,434 Frw. Concerning the advocate fee and the procedural fee, they contended that the amount 550,000 Frw is enough.

On 21 September 2021, the Intermediate Court of Nyarugenge rendered the judgment and held that the case filed by Mukaneza Clarisse has merit and ordered to Radiant to pay the following damages:  Compensation for financial loss = 40,236,251 Frw;  Compensation for the cost of pain = 432,000 Frw;  Compensation for hinderance of working experience = 4,948,410 Frw;  Compensation for aesthetic damage = 216,000 Frw;  Medical expenses, travel fees, the cost of statements and the file =1, 547,434 Frw;  Advocate fee = 500, 000 Frw;  Procedural fee = 100, 000 Frw;  Court fee = 20,000 Frw.

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The Court elucidated that the compensation for financial loss is based on Article 18 of Presidential Order No 31/01 of 25/08/2003 establishing a scheme for compensation for personal injury resulting from accidents caused by motor vehicles and is calculated on the basis of a salary of 824,735 Frw, the lucrative survival of 32 years, a permanent incapacity of 31% and an interest of 4.5%.

It also clarified that the compensation for aesthetic damage is based on the rate certified by the doctors appointed by both sides: 3/6 is reflected on consolidation of injuries form and medical re-examination for consolidation1: a moderate aesthetic damage.

In respect of compensation for hinderance of working experience, the Court elucidated that the fact that the accident resulted in the permanent incapacity of 31%, weakened her and shortened her life expectancy.

With regard to compensation for the cost of pain, both parties agreed that Mukaneza Clarisse is entitled to them and their amount is 432,000 Frw.

With regard to medical expenses, travel fees, the cost of the files and various statements, the Court elucidated that it granted compensation that was accounted for as provided for by Article 13 of the abovementioned Presidential Order.

1 Formulaire de consolidation des lésions et contre-expertise médicale de consolidation

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Concerning the advocate fee and the procedural fee, the Court explained that pursuant to Article 111 of Law No 22/2018 of 29 April 2018 on the civil, commercial, labour and administrative procedure, the allocated amount was appropriate.

Radiant appealed against that judgment before the High Court, arguing that Mukaneza Clarisse had been granted compensation for financial loss, and had kept on working after the accident and had earned her salary in breach of Article 5 of Law no 41/2001 of 19/09/2001 relating to the compensation of victims of physical accidents caused by motorized land vehicles, as well as the writings by Yvonne Lambert Faivre; that the Court had calculated the damages at the interest rate of 4%, despite that it was 7,701% on the day of the pronouncement and that it had paid compensation for financial loss to the injured party.

Mukaneza Clarisse contended that the grounds of appeal were unfounded and instead she filed a cross appeal, requesting compensation for financial loss and for hinderance of working experience calculated on that basis of the gross salary (salary plus extra allowances); and demanding at the appeal level that she should be granted the damages including the procedural fee and the advocate fee.

The High Court rendered the judgment Nº RCA 00266/2021/HC/KIG on 30/09/2022, declaring that Radiant's appeal has no merit, that the ruling of the Intermediate Court of Nyarugenge is modified only as to how the economic damages were calculated, ordering it to

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pay the sum of 25,566,785 Frw and 1,000,000 Frw including the advocate fee and the procedural fee.

The first reason for its decision was that the victim was not expected to lose her job completely in order to receive economic damages ; the second was that the interest rate in effect on the day the judgment was rendered by the Intermediate Court of Nyarugenge was 8,363% instead of 4.5%. It stated in the third reason that the damages for hinderance of working experience provided was reasonable and well calculated, on the basis of Mukaneza Clarisse’s net salary, and stated that at the appeal level, the compensation sought by Mukaneza Clarisse was justified because Radiant had dragged her into lawsuits.

On 28/10/2022, Radiant wrote to the President of the Court of Appeal requesting a review of the judgment No RCA00266/2021/HC/KIG rendered by the High Court on 30/9/2022 on the grounds of injustice After considering the request, on 20/09/2023, the President of the Court of Appeal wrote to the President of the Supreme Court asking for the case to be reheard due to injustice.

By his decision No 127/CJ/2023 of 26/09/2020, the President of the Supreme Court confirmed the judicial review of case No RCA 00266/2021/HC/KIG rendered by the High Court and the case file was registered under N° RS/INJUST/RC 00007/2023/SC.

The case was heard in public on 04/03/2024, Radiant was represented by Counsel Ndayisaba Fidèle ; Mukaneza Clarisse was assisted by Counsel

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NEMEYABAHIZI Jean Paul and the Court examined whether Mukaneza Clarisse should be compensated for financial loss; whether she should be compensated for aesthetic damage; and also examined the basis for compensation claimed by the defendants in this case. II. ANALYSIS OF LEGAL ISSUES OF THE CASE 1. Determining whether Mukaneza Clarisse should be granted damages for pecuniary loss

Counsel Ndayisaba Fidèle, representing Radiant, submitted that the damages for pecuniary loss were granted to a victim who has lost his or her job and who is required to prove that, this is based on Article 5 of Law No 41/2001 of 19/09/2001, cited above and Yvonne Lambert Favre in her book Droit du dommage corporel, systémes d'indemnisation, in which she states: 'If, after the date on which the incapacity became apparent, the victim returns to work without losing his or her job, there is no loss of employment.' «We know the principle of compensation for all damages that prevent us from accumulating» «Compensation for future accidents and losses caused by them, and loss of income paid in cash, are governed by the law relating to property : amounts received as compensation for damages in lieu of compensation paid or lost as a result of an accident, as

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well as the claim for compensation itself having the nature of property2.

He explained that after the accident, Mukaneza Clarisse continued her work and earned her salary as usual, that she did not have any financial problems. He concludes that Radiant criticises the High Court for ignoring its arguments and confirmed damages for pecuniary loss ordered by the Intermediate Court of Nyarugenge pursuant to Article 183 of the Presidential Order, which requires the Court to annul it because it is unfounded.

Mukaneza Clarisse and her legal Counsel Nemeyabahizi Jean Paul argued that Article 5 put forward by Radiant should not be interpreted as meaning

2 Y. LAMBERT FAIVRE, Droit du dommage corporel, systèmes d’indemnisation, 3ème édition, Dalloz, 1996, pages 182, 185, 193: “après la consolidation, si le blessé reprend ses activités sans diminution de revenus, il n’y a aucun préjudice professionnel futur”; “On sait que le principe indemnitaire impose une indemnisation totale de la victime, mais sans enrichissement”; « Pertes subies et gains manqués constituent des préjudices économiques dont la compensation en argent s’effectue dans le cadre classique du droit patrimonial : l’argent reçu en indemnité remplace dans le patrimoine de la victime de l’argent dépensé ou non perçu du fait de l’accident et l’action en réparation est elle-même sans conteste patrimoniale… »; 3 Article 18, paragraph 1, bullet point 1, of Presidential Order N ° 31/01 of 25/08/2003 on compensation for personal injury due to accidents caused by motor vehicles provides: “In the case of permanent invalidity in excess of 30%, the social security allowance shall be calculated according to the following rules: if the victim is engaged in an occupational activity, he or she shall receive a lump sum based on the person's unpaid salary, disability level and age”.

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that a victim is entitled to damages for pecuniary loss only if he or she has lost his or her job permanently. They state that the only condition is permanent incapacity, that such incapacity is determined, damages for pecuniary loss are due and calculated on the basis of the Presidential Order 4, that the Order is mentioned in Article 5 but Radiant disregards its second paragraph (2).

They added that Radiant misinterprets the legal provision; that the legal doctrine it relies on does not match with the nature of the case, rather, the Presidential Order applied by the Court is clear and has been properly applied.

They conclude that the impact of the incapacity is not immediately apparent, that it can be seen in the future; and it is not surprising that Mukaneza Clarisse does no longer work because after the accident she was not able to work on the field as required by her work, as she still carries a rod in her leg.

In this regard, the legal counsel of Radiant argues that Mukaneza Clarisse's resignation is her right, but that there is no evidence that it has something to do with the accident she went through because she did not report it to her employer.

4 Articles 17 and 18. Article 17 specifies how economic compensation is to be calculated in case of permanent incapacity not exceeding 30%.

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DETERMINATION OF THE COURT

Article 2, paragraph 3, of Law No 02/2002 of 17/01/2002 modifying the decree-law no 32/75 of August, 1, 1975 relating to the compulsory civil liability insurance with regard to automotive vehicles provides that «compensation is due when injuries are caused to people in accordance with the law governing the modalities of compensation of the victims of accidents caused by motor vehicles».

Article 5 of Law No 41/2001 of 19/09/2001 relating to the compensation of victims of physical accidents caused by motor vehicles provides that « if the accident causes permanent incapacity, he or she must receive compensation for the physical disability, mental impairment or impairment of his or her benefits from his or her work which he or she is no longer able to do as a result of the incapacity». In the second paragraph the article provides that "compensation is determined in accordance with the Order of the President of the Republic".

The Court finds that the critical issue raised by Radiant is that Mukaneza Clarisse was granted the damages for pecuniary loss, yet she kept on working after the accident and earned her salary, which it based on alleging that Article 5 of Law No 41/2001 referred to above had been infringed.

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The Court finds that the issue in this provision lies in the translation because it provides: «When an accident caused to a victim an incapacity that prevents permanently him/her from working […]», in French it is written «Lorsque le dommage a causé une incapacite permanente […] ».. Comparison in both languages does not mean the same thing. The Court finds that this provision should be construed as meaning that compensation is granted to the victim who had an incapacity lasting for a certain period of time; the law provides that compensation to be granted will be calculated on the basis of that rate of incapacity, which is a permanent loss in terms of the person's ability to work.

The Court finds that the content of that provision should not be construed as meaning that the victim who is entitled to compensation is the one who had stopped working permanently, had lost his job completely, or is totally incapacitated.

Article 2 of Presidential Order No 31/01 of 25/08/2003 relating to compensation for personal injury resulting from accidents caused by motor vehicles defines permanent incapacity as a any physical, psychosensory or intellectual disability resulting from an impairment on the body of the victim taken as a whole. In its second paragraph, it provides that « the incapacity caused by an accident shall be considered as permanent from the consolidation date determined by doctors, according to the procedure provided for in Article 5.

This article casts light on the meaning of permanent incapacity and when it begins to be regarded

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as existing; the fact that the victim continues to work does not exclude the fact that he/she encounters it; according to its extent determined by doctors there is a reduction of their capability to work, for even if he/she has not lost it today, he/she has not yet recovered.

The analysis is in line with Yvonne Lambert – Faivre's writings, which state that the date of permanent incapacity is determined by the doctors, is the one coinciding with the time when the injuries are no longer reversible, so that treatment is no longer necessary, except for the prevention of relapses, so that it is possible to prove the rate of permanent incapacity that is the basis of permanent loss. The persistence of injuries accompanied by permanent incapacity does not necessarily mean that the victim has recovered from injuries5.

In this case, the Court finds that Radiant does not deny that the accident left Mukaneza Clarisse with a permanent incapacity of 31% as confirmed in a report dated 05/08/2020 by a medical team appointed by both parties after they failed to reach the agreement on the extent of the incapacity determined in the expert report and in the medical counter expertise report written in the

5 Yvonne Lambert – Faivre, Droit du dommage corporel, Indemnification Systems, 3 editions, 1996 , Dalloz, P. 100 § 57 : « le texte de la ‘‘Mission d’expertise 1987’’définit la date de consolidation comme ‘‘le moment où les lésions se fixent et prennent un caractère permanent, tel qu’un traitement n’est plus nécessaire, si ce n’est pour éviter une aggravation, et qu’il est possible d’apprécier un certain degré d’incapacité permanente réalisant un préjudice définitif’’ : la consolidation avec séquelles n’est donc pas guérison ».

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case of Mukaneza Clarisse. What remains to be determined is whether the victim of the accident, who was left with permanent incapacity, can be granted damages for pecuniary loss while she kept on working and earning her salary.

Article 18 of Presidential Order No 31/2001 of 28 May 2003, which provides for the payment of economic damages for persons with permanent incapacity of more than 30%, states in its first paragraph that «When the victim performs an activity for which he/she is paid, he/she receives an amount calculated on the basis of the person's unpaid salary, rate of incapacity and age».

The aforementioned provision means that the victim, who has suffered a permanent incapacity of more than 30%, is entitled to compensation for financial loss according to the incapacity rate of injuries he or she has suffered; it does not state whether the victim must have lost his or her job or the salary he or she was paid in order to receive compensation. This is also confirmed by the fact that the article states: «when he/she performs a paid job» and does not mention «when he/she performed a paid job» so that it is understandable that he/she has already lost his/her job.

This issue was also discussed by the legal scholars Bayeens, J.-L. Jauman, M. Vandeweerdt wo explain that the loss resulting from the permanent incapacity suffered by the victim could be the loss of income earned by him or her, or the loss of strength and capability to perform properly his or her duties at the workplace, as well as the diminishing opportunities or importance that he or she had

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in the labour market (The material damage suffered by the victim as a result of a permanent inability to work may consist of a loss of income and/or the need to exert increased effort in carrying out their professional tasks and/or a decrease in their economic value in the labor market).6

Basing on the foregoing considerations, the Court finds that Mukaneza Clarisse, who has suffered a permanent incapacity of 31%, must receive damages for pecuniary loss regardless of the fact that she kept on working after the accident. The Court finds that it cannot base its reasoning on legal writings relied upon by Radiant alleging that if the victim keeps on working after the accident, and earning his/her salary, he/she is not entitled to damages for financial loss, insofar as these writings are contrary to Rwandan law in the aforementioned provisions as they do not preclude the payment of compensation to the victim who kept on working after the accident.

Basing on the above-mentioned legal provisions and interpretations, the Court finds that Mukaneza Clarisse should be granted damages for pecuniary loss as established by the High Court, and therefore Radiant was not subjected to injustice against in this regard.

6S. BAEYENS, L. FAGNART, C Jauman, Tableau Indicatif 2016, Union Royale des Juges de Paix et de Police, A.S.B.L., La Charte, 2017, P. 13-14; Le dommage matériel que subit la victime à la suite d’une incapacité permanente de travail peut consister en une perte de revenus et/ ou en la nécessité de fournir des efforts accrus dans l’accomplissement de ses tâches professionnelles et/ou en une diminution de sa valeur économique sur le marché du travail.

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2. Determining whether Mukaneza Clarisse is entitled to compensation for aesthetic damage

Counsel Ndayisaba Fidèle representing Radiant recalls that Article 19 of the aforementioned Presidential Decree, provides that he assesses an aesthetic damage basing on a scale of 6 categories. However, in this case, the medical team appointed by both sides did not comment on aesthetic damage suffered by Mukaneza Clarisse. He concluded by saying that for this reason, the damages granted by the Court are unfounded and should be annulled.

Mukaneza Clarisse and her lawyer Nemeyabahizi Jean Paul, explained that the medical team was set up by both sides to only address the problem of permanent incapacity because it was the only point they did not agree on. That initially, the aesthetic damage was agreed upon by the doctors from both sides as they agreed that it was of 3/6 scale. The damages are relevant and must be sustained. DETERMINATION OF THE COURT

Article 19, paragraph 2, of Presidential Order No 31/01 of 25/08/2003 relating to compensation for personal injury resulting from accidents caused by motor vehicles provides that the aesthetic damage shall be determined by doctors on the basis of a scale of 6 categories: category 3: A weighted average of 20% of the statutory minimum yearly salary (…).

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According to the case file, after the accident, Mukaneza Clarisse was subjected to a medical expertise for consolidation report, and the doctor revealed that she had sustained a 50% permanent incapacity and aesthetic damage of a 3/6 scale. Radiant did not accept the consolidation report and appointed its doctor who wrote a counter expertise report for Mukaneza Clarisse which showed a 20% permanent incapacity and an aesthetic damage of 3/6 scale, Mukaneza Clarisse did not concur with it, which made each party to appoint their own doctor to make up a team of doctors to resolve the dispute, those doctors certified that Mukaneza Clarisse had a permanent incapacity of 31% but did not determine the scale of aesthetic damage.

In this case, the Court finds that the fact that the doctor appointed by Radiant who wrote a counter expertise for consolidation for Mukaneza Clarisse confirmed that the scale of aesthetic damage was 3/6 as confirmed before by the doctor on the side of Mukaneza Clarisse, who had written a consolidation expertise report, which shows that they had agreed on it ; therefore it was not one of the contentious issues that should trigger the appointment of a medical team to resolve it, since this team was appointed to address the problem that existed in relation to the rate of permanent incapacity that the two parties did not agree upon.

The Court also finds that Radiant’s allegations that the fact that the arbitrators did not include the scale of aesthetic damage in the report means that they found it to be non-existent, are not relevant, since it is not part of the

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issues assessed, even in the correspondence between the7 parties those arbitrators are mentioned and it is not apparent that they were asked to determine the scale of aesthetic damage, since in case they did not happen to find it out, they would have mentioned it in their report. If there were no evidence of this, the doctor appointed by Radiant would not have confirmed it because he/she confirmed the findings of the doctor appointed by Mukaneza Clarisse’ side.

Basing on the foregoing considerations, the Court finds that Mukaneza Clarisse must be granted the damages for aesthetic damage as held by the High Court; therefore, Radiant was not subjected to injustice in this regard. 3. Determining whether Mukaneza Clarisse is entitled to compensation for hinderance of working experience

7 In an email sent to Counsel Nemeyabahizi Jean Paul sent by Radiant’s employee on July 9, 2020 informing him that he had sent him a report by the Radiant's doctor on his Mukaneza Clarisse, and on the same day, Counsel Nemeyabahizi Jean Paul replied to the email saying that he had found the counter expertise report written for Mukaneza Clarisse, but that after reviewing it they had also found that it was alleviating her pain, which they did not believe. On 15 July 2020, the Radiant’s employee again wrote to Counsel Nemeyabahizi Jean Paul, informing him of the name of the Radiant’s doctor (Dr. Kagambwe Emmanuel) and of his duty station and informing him that the doctor would meet with the medical doctor appointed on Mukaneza Clarisse’s side. On July 21, 2020, Counsel Nemeyabahizi Jean Paul replied informing them of the medical doctor appointed on the side of Mukaneza Clarisse's side (Col Byimana John) and informed them of his work place.

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Counsel Ndayisaba Fidèle representing Radiant alleges that Mukaneza kept working after the accident and earned her salary as usual, that for this reason she should not receive compensation for hinderance of working experience, but should pay back the amount already received. He further explained that Mukaneza Clarisse is not among those eligible for such compensation as established in the case RS/INJUST/RC00010/2022/SC which was decided on 02/12/2022, and the case was involving Prime Insurance Company Ltd and Uwimanimpaye Jean Claude.

Mukaneza Clarisse and her lawyer Nemeyabahizi Jean Paul, reminded the Court that at the High Court level, Radiant contended that the damages are not compatible with compensation for financial loss; they added that it should be awarded because it was provided for by the Presidential Order and that the granted damages were justified. DETERMINATION OF THE COURT

Article 19, paragraph 4, of Presidential Order No 31/01 of 25/08/2003 relating to compensation for personal injury resulting from accidents caused by motor vehicles provides that damages for pecuniary loss stand for: - Either loss of a definite career opportunity reasonably expected for a pupil, a high- school, technical or university student or equivalent;

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- Loss of experience of a person already in working life (….)

As per the case file, Mukaneza Clarisse was an employee of LODA in the position of Data Analysis Specialist. It also shows that after the accident, she kept on working with LODA, but that she signed a six-month employment contract from 01/01/2022, re-signed for another three months from 01/07/2022, and wrote a letter of resignation on 26/07/2022 informing LODA that she would stop on 31/07/2022.

The case file also shows that Mukaneza Clarisse suffered a permanent incapacity of 31% as mentioned above, Mukaneza argues that the fact that she used to carry out her work on the field and was carrying a rod in her leg, she found herself unable to do so due to the negative impact of the accident, and resigned and that her employer was also signing her a fixed term contract.

The Court finds that, despite the fact that Mukaneza Clarisse did not lose her job immediately after the accident, she was no longer able to do it properly because of the disability caused by it. The Court finds that Mukaneza Clarisse, as a person with a rod in a leg, is unable to perform certain tasks due to their nature, which amounts to the loss incurred due to disability caused by the accident. This is also what the aforementioned experts explain, that «(…) the loss incurred by a person due to permanent incapacity may also be a loss of strength and capability to perform properly his or her duties at the

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workplace, as well as the diminishing opportunities or importance that he or she had in the labour market »8.

The Court also finds that the impact of permanent incapacity on professional experience as an ordinary employee, including the loss of the opportunity to be promoted in the workplace, this lost chance is part of the compensation payable to the victim. This was also confirmed in a judgment rendered on 23/05/2019 by the Cassation Court in France9. This interpretation overturns the precedent set in the judgment RS/INJUST/RC 00010/2021/SC involving Prime Insurance Company Ltd and Uwimanimpaye Jean Claude, in which the Court had held that compensation for hinderance of working experience must be construed as compensation for loss of employment.

The Court also finds that the permanent incapacity that the accident caused to Mukaneza Clarisse made her resign from job as she felt that she was unable to perform her duties properly, although she did not terminate the

8 Op. cit., P. 13-14 9 Cassation, 2è chambre civile, 23 mai 2019 : « Mais attendu qu’ayant relevé, que compte tenu des restrictions importantes à une activité, du marché du travail et de son âge, un retour à l’emploi de M.R…était très aléatoire, c’est sans encourir les griefs du moyen que la cour d’appel a réparé au titre d’incidence professionnelle, la perte de chance pour M.R…d’une promotion professionnelle, préjudice distinct de celui réparé au titre de la perte de gains professionnels futurs calculée au vu de son ancien salaire et qui n’intégrait pas l’évolution de carrière qu’il aurait pu espérer » (Indemnisation de la perte de carrière au titre d’incidence professionnelle, Actualité juridique du dommage corporel [ online]: https://publications- prairial.fr/ajdc, consulté le 03/04/2024.

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contract of employment immediately after the accident, which also confirms the loss suffered as a result of the permanent incapacity resulting from the accident, and should therefore be compensated for hinderance of working experience.

Basing on the aforementioned elucidations, the Court finds that the compensation for hinderance of working experience granted to Mukaneza Clarisse was appropriate, and the High Court did not err in any way whatsoever ; thus, Radiant was not subjected to injustice in this regard. 4. Determining whether the damages requested in this case are appropriate

Counsel Ndayisaba Fidèle representing Radiant alleges that Mukaneza Clarisse had unnecessarily dragged them to courts and that, therefore, she should be ordered to pay to them 2,500,000 Frw as damages, which includes the advocate and procedural fees.

Mukaneza Clarisse and her lawyer Nemeyabahizi Jean Paul reminded that her injuries resulted from the accident caused by a Radiant-insured vehicle. They added that the compensation requested by Radiant is unfounded because it rejected the offer of the amicable settlement, that even after the case was lodged before the Court, it refrained from staying the proceedings and has been appealing until today. They concluded by seeking the damages worth 1,5000, 000 Frw for having been brought unnecessarily to the courts.

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DETERMINATION OF THE COURT

The Court finds that the procedural fee and the advocate fee requested by Radiant are not appropriate because its claim was deemed unfounded. The Court also finds that the damages requested by Mukaneza Clarisse for having unnecessarily dragged her to courts are not due because she failed to prove that Radiant filed an application for injustice with the intent to drag her to courts. III. DECISION OF THE COURT

Declares that the application filed by Radiant Insurance Company Ltd for review of the judgment Nº RCA 00266/2021/HC/KIG rendered by the High Court on 30/09/2022 on grounds of injustice has no merit;

Holds that the judgment RCA 00266/2021/HC/KIG rendered by the High Court on 30/09/2022 is sustained.