Kuwait Court of Cassation principle number 499

Summary: - The administration’s liability for administrative decisions. Its basis. Fault consisting in the issuance of an unlawful administrative decision, the existence of damage giving rise to liability, and a causal relationship between it and the damage. Assessment thereof. Within the authority of the court of merits, without review. The condition therefor. - Assessment of compensation making good both material and moral damage, where its grounds exist and there is no statutory provision requiring adherence to particular criteria or methods in that regard. Within the authority of the court of merits, without review. The condition therefor. - Compensation in the field of public employment. It must take account of a fair balance between the administration’s liability when exercising its discretionary competence and the rights of employees who have suffered damage from its fault, subsequently remedied in kind by correcting that fault and, ultimately, by compensating them for the salaries, allowances and bonuses they have lost, which do not follow automatically as a consequence of annulment but are subject to other considerations, most importantly that the right is matched by the performance of a duty, namely the work warranting the salary or bonus. - Assessment of compensation for moral damage. What suffices. It must be of an amount that consoles the injured party and ensures the restoration of his standing without exaggeration or excess, and symbolize its purpose according to what appears from the surrounding circumstances and the actual situation. - Adjustment of the amount of compensation upwards or downwards. Within the discretionary authority of the Court of Appeal. The condition therefor. - An appeal transfers the action to the court of second instance in the condition it was in before the appealed judgment was issued, only in respect of the matters appealed. The appellate court may not adjudicate a matter not brought before it or determine new claims that were not before the first-instance court. - Submission by the respondent of a cross-appeal seeking an increase in the compensation awarded to him at first instance to fifty thousand dinars, without that claim having appeared in his originating statement of claim or during the stages of its hearing, in which he had limited it to fifteen thousand, constitutes a new claim before the Court of Appeal which it may not adjudicate. Its judicial determination thereof by increasing the amount of compensation and actual fees to thirty thousand invalidates the judgment and requires its cassation. Rule: It is established in the jurisprudence of this Court that the basis of 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 that is a factual matter falling within the authority of the court of merits, without review of its assessment, provided that its inference is reasonable and derived from material having a basis in the case papers. It is also established that, although assessment of compensation making good both material and moral damage, where its grounds exist and there is no statutory provision requiring adherence to particular criteria or methods in that regard, falls within the authority of the court of merits without review, this is so where it has identified the elements of damage, assessed the compensation making it good, and based its assessment of both on reasonable, sound 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 its discretionary competence in promotion and other matters and the rights of employees who have suffered damage from the administration’s discretionary fault, subsequently remedied in kind by correcting that fault and, ultimately, by compensating them for the salaries, allowances and bonuses they have lost, which do not follow automatically as a consequence of annulment but are subject to other considerations, most importantly that the right is matched by a duty, namely performing the work warranting the salary or bonus. In assessing compensation for moral damage, it suffices that it be of an amount that consoles the injured party and ensures the restoration of his standing without exaggeration or excess, and symbolize its purpose according to what appears from the surrounding circumstances and the actual situation. Although adjustment of the amount of compensation upwards or downwards 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 the appealed judgment was issued, only in respect of the matters appealed, such that that court may not adjudicate a matter not brought before it or determine new claims that were not before the first-instance court. That being so, and it being established that the respondent specified in his originating statement of claim the compensation he sought as six thousand dinars for material damage, five thousand dinars for moral damage, and four thousand dinars for actual lawyers’ fees, which was the most he hoped to be awarded, the stages of the hearing before the first-instance court proceeded on that basis until, at the hearing of 20/6/2012, it ruled that he was entitled to compensation and, exercising its discretionary authority as a court of merits in light of the facts and circumstances of the action, assessed it at eight thousand dinars and one thousand dinars in actual lawyers’ fees. However, during the hearing of the appeal brought by the administrative authority under No. 2632 of 2012, Circuit 4, the respondent submitted a cross-appeal seeking an increase in compensation to fifty thousand dinars, without that claim having appeared in his originating statement of claim or during the stages of its hearing. Thus, insofar as it sought to increase the compensation and actual fees beyond fifteen thousand dinars, that claim constituted a new claim before the Court of Appeal which it could not adjudicate. Nevertheless, contrary to that, it ruled to increase the compensation and actual fees to thirty thousand dinars, without specifying the elements of that increase and the employment benefits of which he had been deprived that could lead to the conclusion it reached. The Court of Appeal’s statement that the profession of physician represents a humanitarian, scientific and civilizational value does not justify that increase, because that is to be assessed in the sphere of technical performance, not in the administrative sphere. Accordingly, its judgment was based on an unreasonable inference with neither a shadow nor a shade of support in the papers, thereby invalidating it and requiring its cassation.