Kubunavanua v Lalakolasbasa [2016] FJHC 823; HBC286.2008 (30 August 2016)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. : HBC 286 of 2008

BETWEEN

VILIAME KUBUNAVANUA of No. 7 ½ miles, Veisari, being the father
and administrator of his deceased son VILIAME KUBUNAVANUA
(JUNIOR), Student.

Plaintiff

AND

TOMASI LALAKOLASBASA of Lot 257/S4,
Narere Road, Narere,

1^st Defendant

AND

MEREONI LALAKOLASBASA of Lot 257/S4,
Narere Road, Narere,

2^nd Defendant

AND

IFEREIMI LALAKOLASBASA of Lot 257/S4,
NarereRoad, Narere.

3^rd Defendant

AND
DUTY TEACHER of RatuKadavulevu School, Lodoni, Tailevu.

4^th Defendant

AND

THE PRINCIPAL of RatuKadavulevu School, Lodoni, Tailevu.

5^th Defendant

AND

BOARD OF GOVERNORS OF RASTU KADAVULEVU SCHOOL,
Lodoni, Tailevu.

6^th Defendant

AND

THE PERMENANT SECRETARY FOR EDUCATION,
Marela House, Suva.

7^TH Defendant

AND

ATTORNEY GENERAL OF FIJI

8^th Defendant

COUNSEL : Mr. D. Singh for Plaintiff

Ms. N. Choo for 2^nd and 3^rdDefendants

Ms. S. Ali for 4^th to 8^th Defendants

Date of Hearing : 17^th August, 2016

Date of Ruling : 30^th August, 2016

RULING

(On the application to strike out the claim of the plaintiff against the 4^th to 8^th Defendants)

[1] The plaintiff instituted these proceedings to recover damages from the defendants for casing death of his son by negligent driving of the 1st defendant.

[2] It is the position of the plaintiff that the 1^st defendant, the son of the 2^nd defendant, was at all material times the driver of the motor vehicle bearing registration No. EK 547 in which the deceased was a passenger when it was met with the accident which led to the institution of these proceedings. The 2^nd defendant handed over the keys to the 1^st defendant who drove the vehicle out of the school and met with this accident. The 3^rd defendant has been brought into the case on the basis that he was the owner of the vehicle at the time of the accident. 4^th to 8^th defendants have been made defendants under the Occupiers’ Liability Act (Cap) 33 and the State Proceedings Act (Cap 24).

[3] As per the statement of claim following are the particulars of negligence of the 4^th to 8^th defendant:

1. Failing to provide safe school premises and/or to ensure that the school had a gate keeper at the exit and entry point of the school compound to check on students leaving the school premises without authority.
2. Failing to exercise any or any proper supervision or control over the 1^st defendant and the deceased and other children.
3. Failing to have adequate numbers of staff to supervise the children on the sports day.
4. Failing to ensure the 1^st defendant an unlicensed driver did not drive the said motor vehicle out of the school compound.
5. In the premises, the defendants failed to discharge their common duty of care to the plaintiff in breach of section 3 and 4 of the Occupiers’ Liability Act.
6. Failing to exercise care and diligence in the course of employment pursuant of section 6(2) of the Public Service Act 1999 and the Code of Ethics of the Teaching profession laid down by the Ministry of Education.

[4] On 30^th May, 2016 on behalf of the 4^th to 8^th defendants summons to strike out the claim of the plaintiff against them was filed in terms of Order 18 rule 18(1) of the High Court Rules 1988 on the grounds that it does not disclose a reasonable cause of action and it is an abuse of the process of the court.

[5] Order 18 rule 18(1) of the High Court Rules 1988 provides as follows;

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

[6] In the case of Drummond-Jackson v British Medical Association [1970] 1 All E R 1094 at 1101, 1 WLR 688 at 696 CA, it was held that a reasonable cause of action means a cause of action with some chance of success, when only the allegations in the pleading are concerned.

[7] In Sing v Maharaj Chandra & Associates [2001] FJHC 458; HBC 47,2008 (19August 2011) it was held that the jurisdiction to strike out proceedings under Order 18 should be very cautiously exercised.

[8] In Prasad v Home Finance Company Ltd [2003] FJHC 322; HBC0116D.2002S (23 January 2003) it was held:

The Court in considering whether the claim or defence disclosed no reasonable cause of action is strictly confined to the pleadings before it. The affidavit evidence is inadmissible.

[9] Having in mind the principles enunciated in the decisions cited above on the question of striking out of pleadings I will now consider whether the plaintiff in this action has disclosed a reasonable cause of action against the 4^th to 8^th defendants.

[10] It appears from the pleadings that the day on which this accident occurred there had been a sport meet in the school with the participation of the parents of the students. It is specifically averred in the statement of claim of the plaintiff it was the 2^nd defendant who gave to car key to the 1^st defendant. When the parents act in this manner whether it is within the school premises or otherwise the management of the school cannot be held responsible for any act of negligence of the student. Therefore, the allegations that the management of the school has failed to take precautionary steps to avoid the accident is baseless and unfounded on the pleadings itself.

[11] The next question for determination is whether the provisions of the Occupiers’ Liability Act have any application to this matter.

[12] Section 6(2)of the Public Service Act 1999 provides thus;

An employee must act with care and diligence in the course of employment in the public service.

[13] Sections 4 and 5 of the Occupiers’ Liability Act, deal with the extent of occupier's ordinary duty and the effect of contracts on occupier's liability to third party. It is important to consider what is meant by “the occupier”.

[14] The Occupiers’ Liability Act does not define the word ‘occupier’. Even in the English Act the word ‘occupier’ has not been defined. However, In the case of Wheat v Lacon & Co Ltd [1966] UKHL 1; (1966) AC 552 Lord Denning suggested that:

.... Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part may result in injury to a person coming lawfully there, then he is an ‘occupier’ ... In order to be an occupier it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Two or more people may be ‘occupiers’.

[15] In Wheat v Lacon & Co Ltd (supra), the defendants owned a pub which was run by a manager. The defendants allowed the manager to use the first floor of the pub as his private accommodation. A guest of the manager fell down some stairs on the first floor of the pub and was killed. It was held that at the time of the accident the first floor of the pub was occupied by the defendants and that the defendants therefore owed a duty of care to see that he was reasonable safe for the purposes for which he was on the first floor.

[16] In view of the decision cited above, the principles of occupiers’ liability have no application to the present action. According to the pleadings this accident did not occur within the premises over which the 4^th to 8^th to defendant had control. Once the person who was injured or the person who caused injuries left the premises the occupiers could not be held to have any control over the incident. It is a total misconception that the occupiers of the school premises are responsible for the negligence of the 1^st defendant who left the school premises (not during the normal school hours) with the deceased and with the concurrence of his mother who handed over the keys to him.

[17] The learned counsel for the plaintiff submitted that the court cannot arrive at the finding of facts at this stage of the matter with which I am in agreement. The court in this ruling only considered the pleadings and the law relating to striking out of pleadings.

[18] For the reasons aforementioned I hold that the plaintiff has failed to disclose a reasonable cause of action against the 4^th to 8^th defendant and therefore the writ of summons against the said defendants is liable to be struck out.

[19] Abuse of the process of the court is the use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy, filing a false declaration of service, filing a paper untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.

[20] An abuse of the process of the court arises where its process is not used, in good faith and proper purposes, but as a means of vexation or oppression or for ulterior purposes, or more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to prejudice the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which inevitable doomed to failure, the action may be dismissed as an abuse of the process of the court. [Halsbury’s Laws of England 4^th Edition, Vol. 37, paragraph 434].

[21] Institution of proceedings in a court of law without disclosing a reasonable cause of action amounts to an abuse of the process of the court.

[22] For the reasons aforementioned I make the following orders.

ORDERS.

1. The writ of summons against the 4^th to 8^th defendants is struck out.
2. The plaintiff’s action against the 4^th to 8^th defendants is accordingly dismissed.
3. The plaintiff shall pay the 4^th to 8^th defendants $500 each as costs (summarily assessed).
   

Lyone Seneviratne,

JUDGE.

23^rd August, 2016.