Kuwait Court of Cassation principle number 416

Summary: - Compensation in the field of public employment. The need to observe a fair balance between the administration’s liability when exercising its discretionary competence and the rights of employees who suffered damage from its fault, then redressing it in kind by correcting that fault and financially by compensating them for salaries, allowances and bonuses they lost, which do not arise automatically as a consequence of annulment but are subject to other considerations, most importantly that a right is matched by the performance of a duty, namely the work giving rise to entitlement to the salary or bonus. Rule: It is established—in the jurisprudence of this Court—that the criterion for the administration’s liability for administrative decisions is fault consisting in the issuance of an unlawful administrative decision, the extent to which damage giving rise to liability exists, and the causal relationship between it and the damage. Establishing this is a factual matter falling within the authority of the court of merits, whose assessment is not subject to review, provided its inference is reasonable and derived from material having a basis in the papers. It is also established that, although the assessment of compensation redressing damage of both kinds, material and moral, where its grounds exist and there is no statutory provision requiring adherence to particular standards or methods in this respect, lies within the authority of the court of merits without review in that regard, provided it identifies the elements of damage, assesses the compensation redressing it and bases its assessment of both on reasonable and rational grounds having an established basis in the papers, when awarding compensation in the field of public employment, a fair balance must be struck between the administration’s liability when exercising discretionary competence in promotion and other matters and the rights of employees who suffered damage from the administration’s discretionary error, then redressing it in kind by correcting that error and financially by compensating them for salaries, allowances and bonuses they lost. These do not arise automatically as a consequence of annulment but are subject to other considerations, most importantly that a right is matched by a duty, namely performing the work giving rise to entitlement to the salary or bonus. In assessing compensation for moral damage, it is sufficient that it be in an amount that consoles the injured person and ensures restoration of his standing without exaggeration or extravagance, and that it symbolize its purpose according to what emerges from the surrounding circumstances and the actual situation. Although adjusting the amount of compensation upward or downward falls within the discretionary authority of the Court of Appeal, the condition is that it state the considerations upon which it relied, which must be capable of leading to the conclusion it reached. The rule is also that an appeal transfers the action to the court of second instance in the condition it was in before issuance of the judgment appealed against, solely as regards the matters appealed, so that that court may not proceed to determine a matter not before it or determine new claims that were not before the court of first instance. That being so, and it being established that the respondent specified in the originating statement of claim the compensation he sought for material damage as six thousand dinars, for moral damage as five thousand dinars, and the amount of four thousand dinars for actual lawyers’ fees, which was the maximum he hoped to be awarded, and the stages of hearing the action before the first-instance court proceeded on that basis until it ruled, at the hearing of 20/6/2012, that he was entitled to compensation, assessing it, pursuant to its discretionary authority as a court of merits and on the basis of the facts and circumstances of the action, at eight thousand dinars and one thousand dinars in actual lawyers’ fees; nevertheless, during the hearing of the appeal brought by the administrative authority under No. 2632 of 2012, Circuit/4, the respondent lodged an incidental appeal seeking an increase in compensation to fifty thousand dinars, although this claim had not existed in his originating statement of claim or during the stages of its hearing. Accordingly, insofar as it sought an increase in the compensation and actual fees above fifteen thousand dinars, this constituted a new claim before the Court of Appeal that it was not permitted to proceed to determine. Contrary to this, however, it ruled to increase the compensation and actual fees to thirty thousand dinars, without identifying the elements of this increase and the employment privileges of which he had been deprived that could lead to the conclusion it reached. The Court of Appeal’s statement that the position of physician represents a humanitarian, scientific and civilizational value does not justify this increase, because that has its assessment in the sphere of technical performance, not in the administrative sphere. Accordingly, its judgment was based on an unreasonable inference having not a shadow or shade of support in the papers, rendering it invalid and requiring its cassation.