PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2017 >> [2017] FJHC 794

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

  Download original PDF

Mereoni v Fiji Roads Authority [2017] FJHC 794; HBC199.2015 (23 October 2017)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA


[CIVIL JURISDICTION]


Civil Action No. HBC 199 of 2015


BETWEEN: VERONIKA MEREONI, Retired of Waiyavi, Lautoka.

Plaintiff

AND: FIJI ROADS AUTHORITY, a corporate body esshed undd under the Fiji Roads Authority Act 2012.
Defendant

Before : Acting Master U.L. Mohamed Azhar
Counsels: Mr. Kevueli Tunidau fo Plaintiff
Ms. Lidise fose for the Defendant


Date of Ruling: 23rd October 2017


RULING
(On breach of statutory duty, common law duty of care
and striking out under O 18, r 18,)


01. The plaintiff commenced this action, by way of Writ of Summons filed against the defendant claiming damages for the injuries caused by the alleged negligence or the breach of statutory duty by the defendant. The defendant is the corporate body established under the Fiji Roads Authority Act 2012, with the principle objectives of giving effect to the reorganization of the Department of National Roads and making provisions for the affective management and administration of the road systems in Fiji as provided in section 3 of the Act. The plaintiff claimed in her statement of claim that, on the 13th day of July 2014, when she was walking home along Sukanaivalu Road, Lautoka, she stepped into an uncovered manhole and fell, resulting in personal injuries. The particulars of the negligence as per the statement of claims are;

02. The defendant filed the statement of defence and denied the liability. The plaintiff, upon closing the pleading, filed the Summons for Directions and the directions were given for the parties to file their respective affidavits verifying the list of documents. The same affidavits were filed and the matter was adjourned for the preparation of Pre- Trial Conference Minutes to settling the admissions and the triable issues of the matter. In the meantime, the parties expressed their interest to file the summons for split trial. However, there was no such summons filed by either party, but the defendant filed this summons pursuant to Order 18 rule 18 of the High Courts Rules and the inherent jurisdiction of this court seeking the striking out of plaintiff’s action in whole and sought the following orders;
  1. An Order that the action against the Defendant be wholly struck out on the grounds that entire action brought by the Plaintiff discloses no cause of action in that matter is statute barred by virtue of section 38A (1) of the Fiji Roads Authority Act 2012; or alternatively
  2. An order that the action against the Defendant be wholly struck out on the grounds that the entire action brought by the Plaintiff is frivolous and vexatious in that the matter is statute barred by virtue of section 38 (A) of the Fiji Roads Authority Act 2012;
  3. An order that the action against the Defendant be wholly struck out on the grounds that the entire action brought by the Plaintiff is an abuse of the process of the Court in that the matter is statute barred by virtue of section 38(A)(1) of the Fiji Roads Authority Act 2012
  4. An order that the Plaintiff pays the defendant’s costs of an incidental to this application and of the action
  5. Such other Orders as may seem just to the Court.

03. The summons was supported by an affidavit sworn by the then CEO of the defendant. The basis of this summons is the immunity provided in the section 38 A of the Fiji Roads Authority Act 2012 as amended. The plaintiff did not file any affidavit in opposition as the question of law is to be decided and therefore, the matter was fixed for hearing. At the hearing both counsels made oral submission and also filed the written submissions summarizing their arguments. It would be prudent to discuss the submissions of the counsels first, before discussing the law on striking out under Order 18 rule 18.
04. Ms. Lidise for the defendant argues that, in bringing this application to strike out, her client relies on section 38(A) (1) of the Fiji Roads Authority Act which states as follows:

(2) Notwithstanding anything contained in subsection (1), the Minister may on an ex-gratia basis grant compensation to any person who has suffered any injury or damage to property, caused either directly or indirectly by an act or omission done in the exercise of the powers conferred by or duties prescribed under the provisions of this Decree or any other written law.


05. The counsel further submitted that, barring of claims is not something that is new to the legislations. There are several statutes that bar the claims, she argued. She then referred to the section 25 (1) (c) Workmen’s Compensation Act, which is plainly a conclusive bar to the claim, provided that the mandatory provisions of section 16 of Act was complied with and proved, as affirmed by the Court of Appeal in Siqila v Fiji Development Bank [2002] FJCA 43 ABU 59 U 20001S (15 November 2002). To support her argument that, the statute can bar any claim, Ms Lidise further cited the Limitation Act which provides for the limitation period for several causes of action and section 7 of the Capital Markets Act 2009 which states as follows:

“No proceedings civil or criminal, shall lie against the Reserve Bank for anything it may do or fail to do in the course of the exercise of intended exercise of its functions, unless it is shown that it did not act in good faith or without reasonable cause.”


06. The counsel further stated that the most glaring example of the State’s power to limit or bar the claims and liability is the Limitation of Liability for Prescribed Political Events Act 2010. She also pointed out to Section 3 of said act which provide as follows:

Absolute and unconditional immunity is irrevocably granted to all prescribed persons from any criminal prosecution and from any civil or other liability in any court or tribunal, in nay proceedings including any other legal, military, disciplinary, professional proceedings or consequences and from any order or judgment of any court or tribunal or other body as a result of any direct or indirect participation or involvement in any prescribed political event, or pertaining to or arising from any prescribed political event.


07. Citing the section 156 the Constitution, which provides for the continued existence of the Limitation of Liability for Prescribed Political Events Act 2010, the counsel further stated that, if the plaintiff were to argue that, section 38 (a) (1) of the Fiji Road Authority Act unconstitutional, that argument will necessarily fail given the Constitution’s recognition of the power to limit and prohibit the bringing of claims or institution of proceedings under the Limitation of Liability for Prescribed Political Events Act 2010.

08. Mr. Tunidau, on the other hand, argues that section 4 (a) of the Fiji Road Authority Act 2012 did not exclude the Fiji Roads Authority from being sued by any person, whether a natural or legal person, in a court of law. The section has not been affected in any way whatsoever by the Fiji Road Authority (Amendment) Act 2012, which imposed immunity. The provision did not bar anyone from suing it as a corporate body. As a corporate entity it is legally distinct from all the individuals who compose it, has legal personality in itself and can accordingly sue and be sued, hold property and transact, incur liability, and generally act as if it were a natural person. He referred to the section 4 of the Fiji Road Authority Act 2012 with the emphasis to subsection (a). The said section 4 provides;

Establishment of the Authority


4. This section establishes the Fiji Roads Authority, as a corporate body with perpetual succession and a common seal, and the Authority may-

(a) Sue and be sued;
(b) Acquire, hold and dispose of property;
(c) Enter into contract, agreement or other transactions; and
(d) Do all other acts that may be done in law by body corporate.

09. Mr. Tunidau further argues that, the Section 7 of the Fiji Road Authority (Amendment) Act 2012 continues to recognize that any liability vested on the Fiji Roads Authority after the commencement of the Amendment Act, be sued on against the Authority. Again, this reiterates the fact that amendment Act has not affected section 4 (a) of the Principal Act. The section 7 of the Amendment Act No. 46 of 2912 reads;

“Section 18 of the Principal Act is amended by deleting it and substituting the following-


(1) As from the commencement of this Act, all assets, interests, rights, privileges, liabilities and obligations of-

Shall immediately be transferred to and shall vest in the Authority without conveyance, assignment or transfer.


(2) Every right and liability vested in subsection (1) in the Authority may, on and after the commencement of this Act, be sued on, recovered or enforced by or against the Authority in its own name and it shall not be necessary for the Authority, the State or any municipal council to give notice to any person whose right or liability is affected by the vesting.
  1. The essence of the argument of Mr. Tunidau is that, the Department of National Roads and the respective municipality, where the municipal roads were concerned, were responsible and in charge for the affective management and administration of the road systems in Fiji before the establishment of Fiji Road Authority. Thus, after the commencement of Fiji Road Authority Act, all the assets, interests, rights, privileges, liabilities and obligations, those were hitherto vested with the Department of National Roads and the respective municipalities, were automatically transferred to and vested in the Fiji Roads Authority without any conveyance, assignment or transfer. Therefore, Mr. Tunidau argues that, the liability of the Fiji Road Authority to be sued is not affected by any of the amendments to the Fiji Road Authority Act. Citing Section 15(2) of the Constitution 2013, Mr. Tunidau further submitted that, the Plaintiff has a right, as a party to a civil dispute, to access the courts of law and have her civil dispute determined by the court. In other words, the Plaintiff has the right to bring a civil suit against the Fiji Roads Authority. That right is recognized by sections 4(2) of the Act and section 7 of the Fiji Road Authority (Amendment) Act 2012.
  2. The plaintiff in paragraph 4 of her statement of claim pleaded that, her accident was caused by the negligence or breach of statutory duty under the Fiji Roads Authority Act 2012, or both, of the defendant, their employees or agent. Thus, the claim of the plaintiff is based on the breach of statutory duty and negligence which arises under the common law duty of care. Therefore, two questions are to be decided in this case. The first is does the section 38 A, which was introduced by the Amendment Act No. 46 of 2012, exclude the any suit for act or omission of the Authority or not? The second is whether the existence of statutory powers can create common law duty of care? As I said above, the Department of National Roads and the respective Municipality were in charge and responsible for the administration of road system in Fiji before the establishment of Fiji Road Authority (hereinafter referred to as the Authority) by the Decree number 02 of 2012, which was later amended as an Act (hereinafter referred to as the Act). Establishing the Authority, the section 4 of the Act (which is mentioned in paragraph 08 above) provides for the nature and the capacity of the Authority in relation to the functions and the powers vested with the Authority. Accordingly, it is a corporate body with the perpetual succession and common seal. It may sue and be sued; acquire, hold and dispose property; enter into a contract, agreement and other transactions and do all other acts that may be done in law by a body corporate. The section 18 of the Act provided for the transfer of assets and liabilities of the National Roads Department to the Authority. Whilst the composition of the Authority is provided in section 5 of the Act, its functions are provided in section 6. They include, but not limited to, those functions that are provided therein. The section 6 reads;
    1. The Authority shall be responsible for all matters pertaining to constructions, maintenance and development of roads in Fiji, including but not limited to the following-
      • (a) Managing(land provision,, network planning, designing, constructing, maintaining, renewing and generally managing the use of ) all roads;
      • (b) Traffic management (including road design, traffic signs and markings);
      • (c) Road safety (relating to provision and management of the road);
      • (d) The issuing of over-width, height and lengths limits;
      • (e) Planning and management of road survey and design;
      • (f) Provide advice, programmed management services, design, supervision services for capital works programme; and
      • (g) For such other matters, as the Minister may direct.
  3. An inadvertent omission of section 18 was that, the failure to transfer the assets and liabilities of the Municipal Councils which were responsible for the municipal roads, to the Authority. It only provided for the transfer of assets and liabilities of the National Roads Department to the Authority. Thus an amendment was inevitable to include the assets and liabilities of the Municipal Councils in relation to municipal roads to cope with the purpose of establishing the Authority, which is mentioned in the long title of the Act. Then it came in the same year 2012 The Decree No 46 of 2012 which later became the Act No 46 of 2012, to amend the section 18 so as to transfer the assets and liabilities of the Municipal Councils to the Authority. It also necessitated re-defining the roads and this was achieved by the section 4 of the said Amendment Act 2012 which amended the original definition provided in the section 2 of the Act. Finally, all the assets, interests, rights, privileges, liabilities and obligations of the Department of National Roads and Municipal Councils in relation to municipal roads, were immediately transferred to and vested in the Authority. As a result, the administration of all roads as defined in section 2 of the Act, as amended, came under the purview of the Authority.
  4. The notable feature of the Amendment Act No 46 of 2012, which is the centre for the controversy in this case is the immunity given to the authority under the section 38 A. it is a complete immunity from any action, suit, proceeding, dispute or challenge in any court, tribunal or any other adjudicating body for or in respect of any act or omission done in the exercise or non-exercise of the powers conferred by or duties prescribed under the power of the Act or any other written law. The defendant relies on this section, as pointed out by Ms. Lidise in her submission, in applying to strike out this action filed by the plaintiff. The said section 38 A provides that;

(2) Not withstanding anything contained in subsection (1), the Minister may on an ex-gratia basis grant compensation to any person who has suffered any injury or damage to property, caused either directly or indirectly by an act or omission done in the exercise of the powers conferred by or duties prescribed under the provisions of this Decree or any other written law.


  1. Since the above section 38 A fully exempts the Authority from all the liabilities mentioned therein, the question is whether it derogates the section 4 (a) of the Act which states that, the Authority may sue and be sued. Mr. Tunidau answers it negatively and Ms. Lidise, on the other hand, answers affirmatively. The effect of an amendment to any law is that, the original law and the all amendments should be read and construed together from the date of amendments or retrospectively as case may be. This is clearly mentioned in the section 11 of the Interpretation Act Cap 7. It reads as;

Effect of amendments to laws

11. Where any written law is amended by any subsequent written law, the original law together with all amendments thereto shall be read and construed together from the date of commencement of the amendments or retrospectively, as the case may be, and the short title or citation of the original law shall be construed to include all written law covered by the same short title or citation.


  1. Accordingly, the section 38 A, should be read and construed together with the other provisions of the Act. When interpreting a statute or the law, the starting point should be the language of the particular statute or the law. ‘The language of the text of the statute should serve as the starting point for any inquiry into its meaning’: N. Eskridge, Jr., Philip P. Frickey, & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy (3rd edition. 2001) at p 819. The "plain meanine" interprterpreting or construing a statute or law holds that where the language of a statute is plain, the sole role of the courts is to enforce it according to its terms. Thus the duty of turt, in case of an unambigumbiguous language, is to see the message that the statute is trying to convey by the particular communication. DC Pearce and RS Geddes, state in their book ‘Statutory Interpretation in Australia’ (LexisNexis Buorths, 8th editi> 2014) p 146p 146 as follows;

“Legislation is, at eart,nstrument of comm communication. For this reason, many of the so-called rules or principlesiples of interpretation are no more than commone and grammatical aids that that are applicable to any document by which one person endeavours to convey a message to another. Any inquiry into the meaning of an Act should therefore start with the question: 'What message is the legislature trying to convey in this communication?”(Emphasis added)


  1. The collective reading of the amendment and the provisions of the Act reveals that, the new section 38 A, in its plain meaning, conveys the message that, the Authority is given full immunity from the action, suit proceeding, dispute or challenge in any Court, Tribunal or any other adjudicating body for or in respect of any act or omission done in the exercise or non-exercise of the powers conferred by or duties prescribed under the provisions of the Act or any other written law. Therefore, I concur with the submission of Ms. Lidise and affirmatively answer the first question, holding that, the section 38 A, which was introduced by the Amendment Act No. 46 of 2012, excludes the suit that arises out of an act or omission of the Authority. This limitation is clearly for any act or omission done in the exercise or non-exercise of the powers conferred by or duties prescribed under the provisions of the Act or any other written law. Therefore, there is no inconsistency between the sections 38 A and the 4 which provides that, the Authority may sue and be sued. The section 4 is applicable for duties and obligations that may arise out any other transactions, other than the powers or duties conferred by the Act or any other written law.
  2. The second question to be decided by this court, as mentioned above, is whether the existence of statutory powers can create common law duty of care? However, none of the counsels advanced any argument on this question. The statutory bodies are established for variety of purposes of public administration. In order to achieve these purposes, the statutes impose wide range of duties on both natural and legal persons such as public authorities and agencies, covering a myriad of factual contexts such as public health, public transport, employment, safety etc. However, the consequences of the breach of these statutory duties are diverse and manifold including, but not limited to, personal injuries, monetary and economic losses arising from property damages and loss of income etc. Unfortunately, the liability of the public bodies for the members of the public is still in confusion. The English Court of Appeal in a very old case of Kent v East Suffolk Rivers Catchment Board [1940] 1 KB 319 remarked at page 332 that “[t]he case law as to the duties and liabilities of a statutory body to members of the public is in a state of lamentable obscurity and confusion”. The same or similar sentiments were made by the House Lords in recent case of Gorringe v. Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 2 All ER 326. Lord Steyn at page 330 in paragraph 2 stated;

“There are, however, a few remarks that I would wish to make about negligence and statutory duties and powers. This is a subject of great complexity and very much an evolving area of the law. No single decision is capable of providing a comprehensive analysis. It is a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary”. (Emphasis added)


  1. The common law cases suggest that, the court must be satisfied that the Parliament intended, via the statute to create a private law right to sue any public body for breach of statutory power. Accordingly, mere existence of statutory powers does not create a private law right of action against the statutory bodies for their breach of statutory powers. A brief examination of duty of care in common law and its evaluation to date in respect of statutory powers will reveal a correct answer for the second question that to be decided by this court.
  2. The doctrine of duty of care under the English Tort Law was significantly developed in 1932 with the case of Donoghue v. Stevenson (1932) AC 562. Lord Atkin in that case established a &#8eighbour principle’#8217; or a general duty that individuals must take reasonable care in their actions or omissions, so as not to cause harm to others proximate to them, despite the fact, the plaintiff was unidentidentified or unknown to the manufacturer, as the type of harm which occurred was foreseeable through the negligence of the defendant – the ginger beer manufacturer. The plaintiff in that case succeeded in establishing that a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Lord Atkin articulating the ‘neighbourhood principle’ stated at page 580 that;

“At present I content myself with pointing out that in English law there must be, and is, some general conception of relatives giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

  1. The principle articulated by Lord Atkin in that case could not generally be applied across the board for two reasons; firstly due to the development of new categories of negligence over the period of time and secondly, due to the rise of necessity for its exclusion. The English courts were of the opinion that, the duty of care, as expounded by Lord Atkin, did not have an indiscriminate application to all forms of negligence. This led the English courts to re-think about the principle and to find some justifiable exclusion or some justification for its exclusion. This is clear from the sentiments expressed by Lord Reid in Home Office v Dorset Yacht Co Ltd AC 1004, where ordship ship stated at page 1027 that, "the time has come wh cawe can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion”. The gap was finally filledi>Anns v Merton London Borough Council [197;[1978] AC Lord Wilberflberforce established two stage test of duty of care, which is well-known as Anns Test. His Lordship held at pages 751 and 752 as follows;

&#822ough the trilogy of cases ises in this House – Donoghue v Stevenson [1932] A.C. 562, Hedly Byrne & Co. Ltd. V Heller & Partners Ltd. [1964] - and Dorset Yacht Co. Ltd v Home Office [1970] UKHL 2; [1970] A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighborhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht case [1970] UKHL 2; [1970] A.C. 1004, per Lord Reid at p. 1027. Examples of this are Hedley Byrne’s case [1963] UKHL 4; [1964] A.C 465 where the class of potential plaintiff was reduced to those shown to have relied upon the correctness of statements made”.


  1. The Anns two stage test is as follows;
    1. A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage, such that carelessness on the part of the former is likely to cause damage to the latter and
    2. There are no considerations relevant which may reduce or limit the scope of any imposed duty.
  2. The proximity and the foreseeability are on the first stage and the policy consideration which limits the liability is on the second stage as per Anns Test. Unlike the principle expounded in Donoghue v. Stevenson (supra), the Anns Test recognizes the possible exclusion to the common law duty of care towards those who are proximate. However, the Anns Test too received criticism for combining the test for proximity of relationship with foreseeability of harm. It was further criticized that, Lord Atkin's neighbourhood principle emphasized a need for both a proximate relationship, as well as a foreseeability of harm, but the Anns Test did not make such a clear distinction. Then the House of Lords in Caparo Industries plc v Dickman [1990] UKHL 2; [1990] 2 AC 605, 2-633 summarized the test for the duty of care in three folds namely (a) the harm which occurred must be a reasonable foreseeable result of the defendaconduct; (b) a sufficient relationship of proximity or neig neighbourhood exists between the alleged wrongdoer and the person who has suffered damage and (c) it is fair, just and reasonable to impose liability. Caparo Industries plc v Dickman (supra) has, contrary to Anns Test, made clear distinction between the foreseeability and the proximity, whilst making the third ingredient as reasonableness and fairness as opposed to the policy consideration in Anns Test.
  3. The Anns Test, despite the local criticism it received, had influenced the English courts to inquire at the first stage whether statutory body owes a duty to care based on proximity and foreseeability at the first stage and at the second stage whether the policy consideration has negated or limited the said duty of care, when it comes to statutory powers. The latest example of this is the case of Gorringe v. Calderdale Metropolitan Borough Council (supra). The facts of the case well summarized in the speech of Lord Hoffman as follows;

On 15 July 1996, on a country road in Yorkshire, Mrs Denise Gorringe drove her car head-on into a bus. It was hidden behind a sharp crest in the road until just before she reached the top. When she first caught sight of it, a curve on the far side may have given her the impression that it was actually on her side of the road. At any rate, she slammed on the brakes and at 50 miles an hour the wheels locked and the car skidded into the path of the bus. Mrs Gorringe suffered brain injuries severely affecting various bodily functions including speech and movement.


On the face of it, the accident was her own fault. It was certainly not the fault of the bus driver. He was driving with proper care when Mrs Gorringe skidded into him. But she claims in these proceedings that it was the fault of the local authority, the Calderdale Metropolitan Borough Council. She says that the council caused the accident by failing to give her proper warning of the danger involved in driving fast when you could not see what was coming. In particular, the Council should have painted the word "SLOW" on the road surface at some point before the crest. There had been such a marking in the past, but it disappeared, probably when the road was mended seven or eight years before.


When the case was before the Court of Appeal [2002] EWCA Civ 595; [2002] RTR 446, Potter LJ said (at para 93) that it would have been "no more than a warning of the need to do that which should have been obvious to her in any event as she drove up from the dip." Nevertheless, he was willing to hold that the Council's omission to provide such a warning meant that the accident was partly its fault. The judge (Mr Roger Thorn QC, sitting as a deputy judge) had gone even further. He said that it was entirely the fault of the Council. In the absence of such a warning, Mrs Gorringe could not be blamed for driving too fast. But May LJ and Sir Murray Stuart-Smith disagreed. They said that the Council was not in breach of any duty to Mrs Gorringe and that she was entirely responsible. Her action was dismissed and she appealed to the House of Lords.

  1. In that case, the counsel for the appellant argued that, common law duty has been created by (or in parallel with) section 39 (2) and (3) of the Road Traffic Act 1988 (UK Act). The said subsections are as follows;

(2) Each local authority must rrepare and carry out a programme of measures designed to promote road safety. ...


(3) Without prejudi the generalnerality of sub-section (2) above, in purs of tduty under that shat sub-seub-section each local authority –


(a) must carry out studies into accidents arising out of the use of vehicles on roads...within their area,

(b) must, in the light of those studies, take such measures as appear to the authority to be appropriate to prevent such accidents, including the dissemination of information and advice relating to the use of roads, the giving of practical training to road users or any class or description of road users, the construction, improvement, maintenance or repair of roads for which they are the highway authority...and other measures taken in the exercise of their powers for controlling, protecting or assisting the movement of traffic on roads.
  1. Lord Hoffmann having considered the above provisions stated at pages 334 and 335 that;

“These provisions, with their repeated use of the word "must", impose statutory duties. But they are typical public law duties expressed in the widest and most general terms: compare section 1(1) of the National Health Service Act 1977: "It is the Secretary of State's duty to continue the promotion...of a comprehensive health service ... ". No one suggests that such duties are enforceable by a private individual in an action for breach of statutory duty. They are enforceable, so far as they are justiciable at all, only in proceedings for judicial review”. (Emphasis added)


  1. His Lordship further held at page 335

“Since the existence of these statutory powers is the only basis upon which a common law duty was claimed to exist, it seemed to me relevant to ask whether, in conferring such powers, Parliament could be taken to have intended to create such a duty. If a statute actually imposes a duty, it is well settled that the question of whether it was intended to give rise to a private right of action depends upon the construction of the statute: see Reg v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58, 159, 168-171. If the statute does not create a private right of action, it would be, to say the least, unusual if the mere existence of the statutory duty could generate a common law duty of care”. (Emphasis added)


  1. In the same case, concurring with Lord Hoffmann, Lord Steyn stated at page 330 that;

“..in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy? In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy? An assimilation of the two enquiries will sometimes produce wrong results”.


  1. Lord Hoffman in that case went on the basis whether the Parliament could be taken to have intended to create such a duty. According to His Lordship when a statute actually imposes a duty, it is well settled that the question of whether it was intended to give rise to a private right of action depends upon the construction of the statute. In the meantime, Lord Steyn has gone on the basis whether the statute has excluded the private law remedy. However, the House of Lords unanimously dismissing the appeal was of the opinion that, the existence of the broad public duty on the public authority does not generate a common law duty of care and thus a private law right of action. A common law duty to act could not be imposed upon a local authority based solely on the existence of broad public law duty. It is in the public interest that local authorities should take steps to promote road safety, but that does not require a private law duty to a careless driver or to any other road user.
  2. The Gorringe (supra) is not the only case where the effect of statutory powers and duties on the common law liability of the highway authority was discussed. Even before that case, the House of Lord had a similar opportunity to discuss in the case of Stovin v Wise [1996] AC 923. The facts of the case are that;

The Plaintiff, riding a motor cycle along a road in December 1988, collided with a motor vehicle being driven by the defendant out of a junction. The plaintiff was seriously injured. Although the junction was not a busy one, it was known by the county council, as the highway authority, to be dangerous because the road users’ view was restricted by a bank on adjoining land. Accidents had occurred there on at least three previous occasions. In January 1988, after a site meeting a divisional surveyor of the council accepted that a visibility problem existed and recommended removal of part of the bank. The council accepted the recommendation providing the owner of the land agreed. The owner made no response to the council’s proposal before the plaintiff’s accident notwithstanding a further site meeting where the council and owner’s representatives were present.


The plaintiff’s claim against the defendant for damages for his personal injuries was settled but the defendant joined the counsel as third party, alleging negligence and breach of statutory duty. The judge held that the council was not in breach of statutory duty since the land was not part of the highway, but that it was in breach of its common law duty of care and was 30 percent. To blame for the plaintiff’s injuries. The Court of Appeal dismissed the council’s appeal. The council then appealed to the House of Lords.


  1. The House of Lords, having extensively considered the Anns Test and policy consideration, delivered the majority judgment in that case and held at pages 952 and 953 that;

“Whether a statutory duty gives rise to a private cause of action is a question of construction: see Regg v Deputy Governor of Parkhurst Prison, Ex Parte Hague [1992] 1 A.C. 58. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. Whether it can be relied upon to support the existence of a common law duty of care is not exactly a question of construction, because the cause of action does not arise out of the statute itself. But the policy of the statute is nevertheless a crucial factor in the decision. As Lord Browne- Wilkinson said in X-(Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 A.C. 633, 739c in relation to the duty of care owed by a public authority performing statutory functions:

“the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done.”

The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care”. (Emphasis added)


  1. The above decision of the House of Lords too recognizes that, the liability of the authority in common law for breach of statutory duty depends on the construction of the statute which requires the examination of the policy of the statute and whether the statute intended to confer such right for compensation. The House of Lords further stated that, the policy of the statue is the crucial factor and if the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care. The majority reasoning in Stovin was applied in Capital & Counties plc v Hampshire County Council [1997] EWCA Civ 3091; [1997] QB 1004 to fire authorities, which have a general public law duty under section 1 of the Fire Services Act 1947, to make provision for efficient fire-fighting services. The Court of Appeal held that, this did not create a common law duty. Stuart-Smith LJ (giving the judgment of the Court of Appeal) said (at p 1030):

"In our judgment the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable."


  1. In O'Rourke v Camden London Borough Council [1997] UKHL 24; [1998] AC 188 a homeless person sued for damages on the ground that the council had failed in its statutory duty to provide him with accommodation. The action was struck out on the ground that the statute did not create a private law right of action. In a speech with which all other members of the House concurred, Lord Hoffman said at page 193:

"the [Housing] Act [1985] is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits which they should have done." (Emphasis added)


  1. The other common law jurisdictions such as Australia and Singapore are not exception to the position taken by the English court on the question in hand. The primary reason is the influence made by Anns Test on the duty of care under the common law. There are several examples of cases where the courts in Australia and Singapore adopted the same approaches. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540; 194 ALR 337; 77 ALJR 183(5 December 2002) the High Court of Australia stated that, the legislative intention must be examined to determine whether a public authority has breached a common law duty by failing to exercise a statutory power. The court held that;

“In determining whether a public authority has breached a common law duty by failing to exercise a statutory power, it is essential to examine the words and policy of the legislation. That is because the legislation may indicate that the legislature has legislated to cover the field and excluded all common law duties of care. In other cases, the imposition of a common law duty may be inconsistent with or undermine the effectiveness of the duties imposed by a statute. In some cases, the circumstances of the case- for example, active intervention by the authority or reliance by the plaintiff – may establish a duty of care. But the legislation may give the authority such a wide discretion to exercise the power in question that the tribunal of fact cannot find that the failure to exercise the power constituted a breach of the duty”.


  1. The Court of Appeal of Singapore in Tan Juay Pah v. Kimly Construction Pte Ltd [2012] 2 SLR 549 set the guidelines for ascertaining the common law duty of care for breach of statutory duty and said that;

“[T]he party seeking to establish that a private right of action exists for a breach of statutory duty must show that Parliament, in imposing the statutory duty in question to protect the members of a class, intended those members to have such a right of action. Here, it must also be borne in mind that such right is not immediately established just because a statute is intended to protect a particular class of persons. Ordinarily, something more is required to demonstrate a statutory intention to confer a private right of action. In matters where the statute’s objective is to protect the public in general, exceptionally clear language will be required before an intention to confer a private remedy for a breach of statutory duty can be established”. (Emphasis added)


  1. The above analysis reveals that, the duty of care in English common law was established with the introduction of ‘neighbourhood principle’ by Lord Atkin in Donoghue in 1932. However, its inflexibility to suit the different types of negligence and failure to cater the emerging categories of negligence had encouraged the English courts to develop the principle and to apply mutatis and mutandis to the emerging trends. This finally ended with the Anns Test which was later fine-tuned in Caparo. Accordingly, the foreseeability, proximity and the policy consideration are the ingredients for the duty of care to be established in English tort law. When applying the third ingredient with respect to the statutory duty on the public authorities, the Gorringe and Stovin clearly established the law that, mere existence of statutory powers does not give private law right to sue for breach. The question of whether the statute intended to give rise to a private right of action depends on the construction of the statute. But the policy of the policy of the statute is nevertheless a crucial factor. The Australian courts too urged the necessity of examining the words and the policy of the statute. The Singapore courts on the other hand, unlike the English or Australian courts, set a high threshold which requires an ‘exceptionally clear language’ to show the existence of Parliamentary intention to confer a private right of action for breach of statutory duty.
  2. Ascertaining the policy of the statute though a proper construction is the task that is shouldered on the courts. There is no hard and fast rule which guides the courts to discharge this duty. However, it is not necessary to bring the facts of a particular within the facts of a previous case in which a duty of care has been held to exist. In Gorringe, Lord Steyn stated that, basic question is whether the statute excludes a private law remedy or not. Thus, the exclusion clause in a statute is the clear reflection of intention of the statute that it negated the private law right. In such a situation, the task of the court to ascertain the policy of the statute would easily be discharged. The Anns Test too requires at the second stage to see any exclusion. The crucial question is, therefore, whether the absence of such exclusion implies the existence of private law right to sue a particular public body, because some statute may be silent on exclusion. It is my view that, the absence of exclusion does not necessarily imply the existence of such right for the following reasons. Firstly, it is the policy of the statute that is crucial as stated in Stovin. Secondly, when stating that, “the basic question is whether the statute excludes private law remedy” Lord Steyn did not mean that is the only question as His Lordship fully concurred with Lord Hoffmann both in Stovin and Gorringe where Lord Hoffmann emphasized the policy and construction of the statute. Thirdly, Lord Steyn emphasized to consider the background of the statute when deciding the private law remedy. Fourthly, the exclusion clause may be a good cannon to ascertain the intention of the statute, but it cannot be sole tool this purpose. In the instant case, the section 38 A clearly excludes the private law right to sue the Authority and therefore, the plaintiff does not have any private law right to sue the Authority for the alleged breach of statutory power to maintain the road as the Act did not intend it.
  3. In the meantime, Lord Hoffmann in Stovin stated that, if the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care. Thus if any statute creates statutory liability on the particular public body to pay compensation, it will ordinarily mean that the statute has created a private law right of action against the particular public body. Otherwise it would be illogical to create such a liability. An interesting question arises from the above proposition and especially in the context of Fiji legislation, whether the provision for an ex gratia payment in the statute will create any such private law right of action againts the Authority. The reason being that, the section 38 A (2) provides for a discretion on the Minister to grant compensation on ex-gratia basis to any person who suffered injury or damage to property. The said section reads;
    • (2) Notwithstanding anything contained in subsection (1), the Minister may on an ex-gratia basis grant compensation to any person who has suffered any injury or damage to property, caused either directly or indirectly by an act or omission done in the exercise of the powers conferred by or duties prescribed under the provisions of this Decree or any other written law.
  4. Having considered the entire scheme of the Act and its amendments, I am of the view that, the above subsection does not create any such right to sue the Authority for several reasons. Firstly, as settled by the decisions cited above, mere existence of statutory powers does no create any such right of action. It should be shown that the statute intended to create such right of action against the authority. Secondly, the statute in its plain and unambiguous text completely excludes such liability and grants full immunity without any reservation. The statute, therefore, clearly conveys, by the particular communication, that, the policy is to completely exclude any such liability. Therefore holding that, section 38 A (2) created a common law duty of care on the Authority by providing the discretion to the Minister to make ex-gratia payment would be inconsistent with the policy of the statute. Thirdly, the discretion to grant ex-gratia compensation is given to the respective Minister and it is nothing to do with the Authority which is independent, in its function, from the Minister, because the composition of the Authority is the chairperson and four members. Though they are appointed by the Minister, the functions are carried out by the Authority in terms of the powers given by the statute and decision to grant ex-gratia payment is purely ministerial discretion which is amenable to judicial review. Fourthly, it is an ex-gratia payment which means the payment that is done from the sense of moral obligation rather than the admission of legal liability. Fifthly and very importantly, the purpose of this subsection is to strike a balance, considering the interest of justice, between two conflicting and competing interests. To put it more clearly, on one hand, the policy of the statute is to exclude the liability of the Authority so that it can perform its public duty as entrusted by the statute without opening the flood gates for claims and demands which can cripple its public functions. On the other hand, this exclusion will result in damages or loss to the particular class of the people which needs to addressed. So the statute in its wisdom strikes the balance between these two conflicting interests by providing ex-gratia payment by the Minister, however, retaining the immunity. In this sense, this statute must be commended for its balance and cannot be considered as making statutory liability for compensation which in turn might create a private law right of action.
  5. Mr. Tunidau, citing the section 15 (2) of the Constitution, argued that, if the plaintiff is precluded from bringing this action against the Authority, her right to access to justice and to have her civil dispute determined by the court, which is guaranteed under the said section, will be breached. In fact, the immunity, granted to the Authority under section 38 A of the Act, which is based on well settled common law principle, restricts and or derogates the plaintiff’s above right to have her dispute determined by the court. For the reasons mentioned in the previous paragraph I do not see any restriction of the right of the plaintiff, as the section 38 A itself strikes a balance between two conflicting interest. In addition, the issue of violation of access to justice will only arise when there is no remedy at all for a particular grievance. The section 38 A (2) clearly provides for the discretion of the Minister to grant ex-gratia payment and such discretion is always amenable to the judicial review under pubic law. Hence there is no violation of access to justice, since the avenue for an adequate remedy, which could be enforced through public law, is provided in section 38 A (2). At this point, it would be most appropriate to mention another dictum of Lord Steyn in Gorringe. His Lordship at page 330 held that;

“There are, however, a few remarks that I would wish to make about negligence and statutory duties and powers. This is a subject of great complexity and very much an evolving area of the law. No single decision is capable of providing a comprehensive analysis. It is a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary. On the one hand the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy. On the other hand, there are cases where the courts must recognise on principled grounds the compelling demands of corrective justice or what has been called "the rule of public policy which has first claim on the loyalty of the law; that wrongs should be remedied": M (A Minor) v Newham London Borough Council and X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633, at 663, per Sir Thomas Bingham MR. Sometimes cases may not obviously fall in one category or the other. Truly difficult cases arise”.


  1. The examples cited by Ms. Lidise could easily fit into this category of difficult cases mentioned by Lord Steyn. However, the section 38 A of the Act, whilst excluding the liability, did not fail to provide remedy for the any grievance or misfortune, but it provided for ex-gratia payment by the Minister. In addition section 7 (3) of the Constitution provides that, when deciding any matter according to common law, the courts must apply the common law and develop it, where necessary, in a manner that respects the rights and freedoms enshrined in bills of rights. Since the section 38 A (2) gives an unfettered discretion to the minister which is amenable to judicial review by the courts, there is no necessity to develop the common law principle applied by both the English and other court in respect of relationship between the duties imposed under the statute and the establishment of a common law duty of care in the tort of negligence. Thus, I am unable to accept the argument of Mr. Tunidau that, the right of the plaintiff to access to justice is denied by the immunity given to the Authority.
  2. The reasons adumbrated and the analysis of law on the subject matter clearly convince that the Act did not intend to create any private law right to sue the Authority for act or omission of the Authority in the exercise or non-exercise of the powers conferred by or duties prescribed under the provisions of the Act or any other written law. With this background, I now turn to briefly discuss the law on striking out for non- disclosure of reasonable cause of action under Order 18 rule 18 (1) (a) of the High Court’s Rules.
  3. The Order 18 rule 18 of the High Court Rule gives the discretionary power to strike out the proceedings for the reasons mentioned therein. The said rule read:

18 (1) The Court may at any stage of the proceedings order to be struck out or amend 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.


(2) No evidence shall be admissible on an application under paragraph (1)(a).


(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading (emphasis added)


  1. At a glance, this rule gives two basic messages and both are salutary for the interest of justice and encourage the access to justice which should not be denied by the glib use of summery procedure of pre-emptory striking out. Firstly, the power given under this rule is permissive which is indicated in the word “may” used at the beginning of this rule as opposed to mandatory. It is a “may do” provision contrary to “must do” provision. Secondly, even though the court is satisfied on any of those grounds mentioned in that rule, the proceedings should not necessarily be struck out as the court can, still, order for amendment. In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch. 506, it was held that the power given to strike out any pleading or any part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea. MARSACK J.A. giving concurring judgment of the Court of Appeal in Attorney General v Halka [1972] FJLawRp 35; [1972] 18 FLR 210 (3 November 1972) held that:

“Following the decisions cited in the judgments of the Vice President and of the Judge of the Court below I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 19 should be very sparingly exercised, and only in exceptional cases. It should not be so exercised where legal questions of importance and difficulty are raised”.

  1. The first ground of the said rule is the absence of reasonable cause of action or defence as the case may be. No evidence is admissible for this ground for the obvious reason that, the court can come to a conclusion of absence of a reasonable cause of action or defence merely on the pleadings itself, without any extraneous evidence. His Lordship the Chief Justice A.H.C.T. GATES (as His Lordship then was) in Razak v Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC208.1998L (23 February 2005) held that:

“To establish that the pleadings disclose no reasonable cause of action, regard cannot be had to any affidavit material [Order 18 r.18(2)]. It is the allegations in the pleadings alone that are to be examined: Republic of Peru v ian Guan Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch.D 489 at p.498”. Citing several authorities, Halsbury7;s Laws of England (4th Edition) in volume 37 at para 18 and page 24, defines tnes the reasonable cause of action as follows:

“A reasonable cause of action means a cause of action with some chance of success, when only the allegations in the statement of case are considered” Drummond-Jackson v British Medical Association [1970] 1 ALL ER 1094 at 1101, [1970] 1 WLR 688 at 696, CA, per Lord Pearson. See also Republic of Peru v Peruvian Guano Co. [1887] UKLawRpCh 186; (1887) 36 ChD 489 at 495 per Chitty J; Hubbuck & Sons Ltd v Wilkinson, Heywood and Clark Ltd [1898] UKLawRpKQB 176; [1899] 1 QB 86 at 90,91, CA, per Lindley MR; Hanratty v Lord Butler of Saffron Walden (1971) 115 Sol Jo 386, CA.


  1. Given the discretionary power the court possesses to strike out under this rule, it cannot strike out an action for the reasons it is weak or the plaintiff is unlikely to succeed, rather it should obviously be unsustainable. His Lordship the Chief Justice A.H.C.T. GATES in Razak v Fiji Sugar Corporation Ltd (supra) held that:

“The power to strike out is a summary power “which should be exercised only in plain and obvious cases”, where the cause of action was “plainly unsustainable”; Drummond-Jackson at p.1101b; A-G of the Duc Lancaster v er v London and NW Railway Company [1892] 3 Ch. 274.277.”#8221;


  1. It was held in Ratuma v Native Land Trust Board [2000] FJLawRp 66Rp 66; [2000] 1 FLR 284 (17 November 2000) that:

“It is clear from the authorities that the Court's jurisdiction to strike out on the grounds of no reasonable cause of action is to be used sparingly and only where a cause of action is obviously unsustainable. It was not enough to argue that a case is weak and unlikely to succeed, it must be shown that no cause of action exists (A-G v Shiu Prasad Halka [1972] 18 FLR 210; ra v Attorney-General<16al<160; [1987] 3 PLR 95. The principles appliapplicable were succinctly dealt by Justice Kirby in London v Commlth [N60;[No 2] [1996] HCA 14; 70 ALJR 541 4 - 545. These hese are worth repeating in full:

1. It is a serious matt deprive a person of access to the courts of law for it is there that the rule of law is upis upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (General Street Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125Dyson v Attorney-Ge& [1910] UKLawRpKQB 203; [1911] 1 KB 410 at 418).

2. To seco secure selief, the party seeking itng it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reaso cause of action (Munnings v Australian Government SolicSolicitor [1994] HCA 65; (1994) 68 ALJR 169 at 1per per Dawson J.) or is advancing a claim that is clearly frivolous or vexatious; (Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 at 91).

3opin opinion of the Court that a case appears weak and such that it is unlikely to succeed is not alone, sufficient to warrant summary termination. (Coe v The Commonwealth (1979) 53 ALJ; (190 NSW/a> at 5-7). Even a weak casents entitleditled to the time of a court. Experience rnce reaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. (Coe v The Commonwealth[1979] HCA 68; (1979) 53 ALJR 403 at 409). If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5. If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleadings. (Church of Scientology v Woodward [1982] HCA 78;&#1i>(1980) 154 CLR 25 at 79). A question risen asen as to whether O 26 r 18 applies only part of a pleading. (Northern Land Council v The Commonwealth (1986) 161 at 8). However,ever, it is unnecessary in this case to con that question because the the Commonwealth's attack was upon the entirety of Mr. Lindon's statement of claim; and

6. uiding principle is, as stas stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit”.

  1. When applying the above position of law on striking out to the analysis of the law and the facts of this case, it is an inevitable conclusion that, plaintiff’s case is obviously unsustainable. Thus, I decide that, the plaintiff has no reasonable cause of action against the Authority. Furthermore, the issue in the instant case is the subject of great complexity and very much an evolving area of the law as stated above. Therefore, I do not think it is prudent to punish the plaintiff with cost for making an abortive and ignorant attempt by filling this case against the Authority. Accordingly, I make the following orders;
    1. The action filed by the plaintiff is struck out,
    2. The parties to bear their own costs.

U.L Mohamed Azhar
Acting Master


At Lautoka

23/10/17

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2017/794.html