Kuwait Court of Cassation principle number 492

Summary: - The element of causation in tort liability. It rests upon the effective, operative cause producing the damage, not the incidental cause which by its nature has no role in producing such damage, however much it may have contributed by chance to causing it, even through its conjunction with the operative cause. - The appellant’s institution of an action to require the first respondent and the Minister of Interior in his official capacity to pay compensation, following a final criminal judgment convicting the first respondent of issuing a cheque without funds and referring the civil action to the competent civil court, on the basis that her fault in causing him damage was established by the aforementioned judgment and that the second respondent was liable as employer because his subordinates facilitated her escape outside the country. A previous judgment between the same parties requiring the first respondent to pay compensation for the same right. Its effect: the action against her may not be heard because it has already been adjudicated. This is equivalent to a judgment dismissing the action against her. - The appellant’s suffering damage as a direct result of the first respondent’s fault. That fault is considered the effective, operative cause of the damage. The negligence of the subordinates of the second respondent in his official capacity and the resulting escape of the first respondent outside the country. An incidental cause not by its nature capable of causing damage to the appellant, which does not satisfy the element of causation giving rise to liability and is not considered a basis for it. The challenged judgment’s dismissal of the action. Correct. The challenge thereto. Unfounded. Rule: Whereas the photocopies of the documents submitted before the trial court by the appellant to prove his action contain indications conclusively establishing that the aforementioned criminal judgment acquired the force of res judicata before the civil court as to establishment of the first respondent’s fault, which the civil courts may not contradict and whose ruling they must observe; they also conclusively indicate that the appellant did not neglect to claim his usurped right and that the non-referral of the civil action ancillary to the criminal action was not implemented for a reason beyond the appellant’s will; and they also conclusively indicate that the criminal judgment was rendered in the presence of the parties, meaning that the female appellant was present at the hearing at which judgment was pronounced and was in custody under the guard of the subordinates of the second respondent in his official capacity, as the person responsible, through his police subordinates, for guarding accused persons during trial and enforcing the judgments and orders of criminal courts, and also responsible for securing the international land and air borders and all entry and exit points of the State to which he belongs. Fault is therefore established on the part of his subordinates and on his part as their employer and as responsible for the first respondent’s escape through the land entry and exit points to Oman and thence to Saudi Arabia, where she was deported to the State of Bahrain, to which she belongs, as established by the certificates proving this. However, as regards the first respondent’s liability, it is established in the papers that the appellant previously instituted against the first respondent Action No. ... Plenary Civil, seeking compensation for the material and moral damage he suffered as a result of her fault in issuing him a cheque without existing and withdrawable funds, as established by the final criminal judgment rendered in Felony No. ... of the year, Salwa Felonies, and concerning the incident of its issuance. Whereas judgment was rendered in Action No. ... of 2012, Plenary Civil, in his favour, requiring her to pay him compensation, and whereas that action was between the same parties and concerned the same cause and subject matter, the conditions for applying the plea that the action may not be heard because it has already been adjudicated are satisfied. This leads to the action being inadmissible for hearing as regards the first respondent, which is equivalent to the challenged judgment’s conclusion dismissing the action against her. As regards the liability of the second respondent in his official capacity as employer and as responsible for the acts of his police subordinates charged with securing trials and land and air border entry and exit points, who neglected to guard the first respondent during her criminal trial, it is established in the jurisprudence of this Court that the element of causation in tort liability rests only upon the effective, operative cause producing the damage, not the incidental cause which by its nature has no role in producing such damage, however much it may have contributed by chance to causing it through conjunction with the operative cause. It is apparent from the papers that the damage suffered by the appellant was a direct result of the first respondent’s fault in issuing him a cheque without existing and withdrawable funds, as established by the criminal judgment rendered in Felony ... of 2000, Salwa Felonies. Accordingly, that fault is the effective, operative cause producing the damage sustained by the appellant. As for the latter’s contention that the negligence of the subordinates of the second respondent in his official capacity facilitated the first respondent’s escape outside the country, even assuming it occurred, it would be no more than an incidental cause not by its nature capable of causing damage to the appellant. It therefore does not satisfy the element of causation giving rise to the State’s liability for the damage sustained by the appellant and is not considered a basis for it. Since the challenged judgment adhered to this view, the challenge on the two grounds of appeal is unfounded.