Bainivalu v Fiji Police Force [2004] FJHC 286; HBC0276d.2003s (23 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0276 OF 2003

Between:

ERONI BAINIVALU
Plaintiff

and

FIJI POLICE FORCE
REPUBLIC OF FIJI MILITARY FORCES
ATTORNEY GENERAL OF FIJI
Defendants

Mr. D. Prasad for the Plaintiff
Mrs. C. Ligaiula for the 2nd Defendant
Mr. L. Daunivalu for 1st and 3rd Defendants

DECISION

In this action Eroni Bainivalu (the “Plaintiff”) issued a writ of summons against Fiji Police Force (the ‘first defendant’), Royal Military Forces (the ‘second defendant’) and the Attorney-General of Fiji (the ‘third defendant’) claiming, inter alia, special and general damages against the defendants as more particularly stated in the Statement of Claim filed herein.

The first and third defendants filed Statement of Defence on 12 August 2003.

There are two applications before me. One is from the second defendant filed on 4 August 2003 seeking an order that the plaintiff’s Statement of Claim be struck out on the ground that it discloses no reasonable cause of action supported by an Affidavit. The plaintiff filed a reply to this by affidavit. The second and similar application including the ground that the plaintiff’s action is scandalous, frivolous and vexatious was filed on 14 October 2003 by the first and third defendants supported by an affidavit. To this the plaintiff replied by affidavit on 11 November 2003. The 1^st and 3^rd defendants also filed an affidavit in Reply on 28 November 2003.

As ordered all the parties filed written submissions, the last of the submissions was made on 15 January 2004.

Determination of the issue

The applications are made under Or 18 r 18 of the High Court Rules 1988.

In dealing with this issue, I bear in mind the following passage from Halsbury’s 4^th Ed. Vol. 3 at para 435:

“The power to strike out, stay or dismiss under the inherent jurisdiction is discretionary. It is a jurisdiction, which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible. (my emphasis)

In this case the plaintiff is seeking damages for injuries sustained by him while he was kept hostage at Korovou town by the rebels during the height of 2000 coup.

The plaintiff claims negligence on the part of D1 and D2 in that they failed to take steps to protect the plaintiff and also failed to provide a safe place of work. He further says that the defendants ought to have known about the risk that were being faced by the Police Officers at Korovou Police Station. The plaintiff has set out particulars of negligence in his Statement of Claim.

The issue for Court’s determination is whether the defendants owed a duty of care to provide security to the plaintiff and secure his release from the hostage-takers.

There has to be a trial of the action to ascertain the facts and to determine if there was a duty of care.

In response to the plaintiff’s affidavit, the D1 and D3 stated, inter alia, that D2 had dispatched a number of their officers to provide reinforcement to the security forces already at Korovou Town.

The defendants say that the injuries to the plaintiff were not caused by them but by some persons led by Varinava Tiko who took over the Korovou Police Station where the plaintiff was stationed.

They say that they are not liable for the wrongful acts of an unrelated and largely unidentifiable third party who caused injury to the plaintiff.

Therefore, they say that there is no cause of action against the defendants and also the action is scandalous, frivolous and vexatious.

The defendants say that the main issue for determination is whether the defendants are liable or can be held responsible for the injuries and loss suffered by the plaintiff.

This statement in itself is sufficient to indicate that there has to be a trial of the action to determine the issue. It will of course be for the plaintiff to prove his case on the civil standard of proof.

In the Notes to Or 18 r.19 in the Supreme Court Practice 1979 Vol. 1 at 312 that:

‘it is only in plain and obvious cases that recourse should be had to the summary process under this Rule’ and that ‘it can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable’ [AG of Duchy of Lancaster v. L. & N.W. Ry. Co [1982] 3 Ch 274, C.A.]

This statement I find is applicable to the facts of this case, that is, it is not a plain and obvious case of dealing summarily with it.

Further in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 3) [1970] Ch 506 it is stated that:

‘The power to strike out any pleading or any part of pleading under this rule is not mandatory, but permissive, and so confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea’.

Also, in the context of this case I find the following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1977] 1 W.L.R. 510 at 518 apt:

“First, there is the well settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial”.

The defendants say that there is no reasonable cause of action but on the evidence before me I hold that there is and in coming to this conclusion I have borne in mind following passage from Notes to Or 18 r 19/11 of the Supreme Court Practice (U.K.) 1979 Vol. 1 where it is stated:

“......A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 WLR, 688; [1970] 1 All E.R 1094, C.A.). So long as the statement of claim or the particulars (Davey v Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moore v Lawson) (1915) 31 T.L.R. 418, C.A.; Wenlock v Moloney [1965] 1 W.L.R. 1238 [1965] 2 All E.R 871, C.A.)...”

Similarly, on this subject Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 at page 91 said:

“...summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands in insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases”.

In Attorney-General v Shiu Prasad Halka [1972] 18 FLR 210, FCA Marsack J.A. said:

“... I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 rule 19 should be very sparingly exercised where legal questions of importance and difficulty are raised’.

The defendants have referred to cases which spell out the general duty of care owed by police officers. One such case is Hill v Chief Constable of West Yorkshire [1987] UKPC 16; [1988] A.C 175 H.L. The other case to which reference was made is Osman v Ferguson [1993] 4 All E.R. 345 C.A. which followed Hill’s case (supra).

In Osman it was held (and this the defendants put in argument) that:

“However (per curiam), the existence of a general duty on the police to suppress crime did not carry with it liability to individuals for damage caused to them by criminals whom the police had failed to apprehend when it was possible to do so. It would be against public policy to impose such a duty as it would not promote the observance of a higher standard of care by the police and would result in the significant diversion of police resources from the investigation and suppression of crime”.

The defendants’ counsel agree that whilst this case may differ slightly from the factual scenario of the above-quoted authorities, the general principles espoused in those cases would apply equally to this case so far as it relates to the liability of the police.

The defendants also say that the plaintiff’s action is frivolous and vexatious. They say that they did whatever was reasonably possible to both prevent and control the situation.

It is to be noted that without a trial of the action it will not be possible to decide on who is or are liable for the injuries sustained by the plaintiff.

Conclusion

For the reasons given hereabove, in the exercise of my discretion and on the authorities the defendants’ applications will have to be dismissed.

I conclude with the following words of Rooney J in Timoci Uluivuda Bavadra v The Attorney General (Sup. Ct. (now High Court) C.A. No. 487 of 1987 where he said:

“I am not required to try any issues at this hearing . All I have to decide whether there is an issue to be tried. It is not enough for the defendant to show on this application that the plaintiff’s case is weak and unlikely to succeed”.

The following passage from the judgment of Court of Appeal in National MBf Finance (Fiji) Limited v Nemani Buli, (Civil Appeal No. ABU 0057 of 1998) very clearly enunciated and determined the principles of striking out. At page 2 of the judgment their Lordships said:-

“The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...”

For the above reasons the applications by the defendants are therefore dismissed with costs in the cause. The action should now proceed in the normal manner with due diligence.

D. Pathik
Judge

At Suva
23 April 2004