Fuataga v Ekeroma [2024] WSCA 5 (8 October 2024)

IN THE COURT OF APPEAL OF SAMOA
Fuataga & Anor v Ekeroma & Anor [2024] WSCA 5 (8 October 2024)

Case name:	Fuataga & Anor v Ekeroma & Anor
Citation:	[2024] WSCA 5
Decision date:	8 October 2024
Parties:	STEFFI CARRUTHERS-THOMSEN FUATAGA and KAINO THOMSEN FUATAGA of Vaoala, a married couple, Business Proprietors (Appellants) v AIONO ALEC EKEROMA trading as “HEALTH SPECIALISTS CLINIC” of Motootua, Medical Doctor (First Respondent) and THE ATTORNEY GENERAL, for and on behalf of the MINISTRY OF HEALTH, a Government Department (Second Respondent)
Hearing date(s):	24th September 2024
File number(s):	CA05/24
Jurisdiction:	Court of Appeal – CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Justice Harrison Justice Asher Justice Young
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	It follows also that we are satisfied that the Fuatagas’ statement of claim when amended discloses an arguable case against both defendants, and the Supreme Court erred in striking it out. The Fuatagas’ appeal is allowed and their statement of claim as amended is reinstated. The defendants are ordered to pay one set of costs of ST$5000 together with reasonable disbursements to the Fuatagas.
Representation:	A. Fisher KC & K. Koria for the Appellants S. Leung-Wai for the First Respondent M. Alai & T. Roma for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Constitution of the Independent State of Samoa 1960, Art. 111(1); Supreme Court (Civil Procedure) Rules 1980, r. 70.
Cases cited:	Baker v Bolton [1808] EWHC KB 192; Durst v Petroleum Products Supplies Ltd [2007] WSSC 64; Farrell v Merton, Sutton and Wandsworth Health Authority (2001) 57 BMLR 158; Fuataga v Ekeroma [2024] WSSC 1; McLoughlin v O’Brien [1983] AC; McNeely v Lemoasina Corporation Ltd [2019] WSCA 12; North Glamorgan NHS Trust v Walters [2003] 1 QR 6 (Walters); Owen v Residual Health Management Unit [2000] NZCA 163; [2000] 3 NZLR 475 (CA); Queenstown Lakes District Council v Palmer [1998] NZCA 190, [1999] 1 NZLR 549; RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB); Sua v Attorney-General [2013] WSCA 12; Van Soest v Residual Health Management Unit [1999] NZCA 206; [2000] 1 NZLR 179; Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB); Woodroffe v Mataia [2017] WSCA 5; Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 824 (QB).
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

STEFFI CARRUTHERS-THOMSEN FUATAGA and KAINO THOMSEN FUATAGA of Vaoala, a married couple, Business Proprietors

Appellants

AND:

AIONO ALEC EKEROMA trading as “HEALTH SPECIALISTS CLINIC” of Motootua, Medical Doctor

First Respondent

AND:

THE ATTORNEY GENERAL, for and on behalf of the MINISTRY OF HEALTH, a Government Department

Second Respondent

Coram: Justice Harrison
Justice Asher
Justice Young

Counsel: A. Fisher KC & K. Koria for the Appellants
S. Leung-Wai for the First Respondent
M. Alai & T. Roma for the Second Respondent

Hearing: 24 September 2024
Judgment: 8 October 2024

JUDGMENT OF THE COURT

Issue

1. The issue arising in this appeal from a decision of the Chief Justice^[1] is whether a claim may arguably be maintained at common law in Samoa by parents of a stillborn child for damages for nervous shock and anguish, stress and anxiety based on the alleged breach of a duty of care owed to them by the clinician and hospital responsible for the mother’s antenatal care and labour.

Background

2. The appellants, Steffi Carruthers-Thomsen Fuataga and Kaino Thomsen Fuataga, are a married couple living in Apia. On 22 March 2022 Mrs Fuataga was admitted first to a private clinic where she was under the care for some hours of the first respondent, Aiono Dr Alec Ekeroma, a specialist obstetrician and then to the Tupua Tamasese Meaole Hospital (the TTM Hospital) following contractions experienced at home during the concluding stages of her pregnancy. The second respondent, the Ministry of Health (sued through the Attorney-General), is responsible for the health care services provided by the TTM Hospital.
3. Mrs Fuataga was in labour for some hours before her daughter, Adira, was delivered stillborn. The Fuatagas allege that Dr Ekeroma and later his colleagues were negligent in several respects including a failure to action an abnormal foetal heart rate pattern in breach of duties owed to Mrs Fuataga relating to her ante natal care and during labour. The Fuatagas allege that this negligence caused them nervous shock and anguish, stress and anxiety for which they seek awards of general and exemplary damages.

Supreme Court

4. The Fuatagas’ claim was brought on three alternative bases. The first two were statutory: first, in a representative capacity on behalf of Adira’s estate under the Law Reform Act 1964;^[2] (an estate claim); and second, as dependants under the Fatal Accidents Act 1972 (a dependency claim). The third was in a personal capacity in negligence at common law.
5. The Chief Justice upheld an application by the defendants to strike out the Fuatagas’ claim as disclosing no arguable cause of action^[3]. Perese CJ relied on concessions by the Fuatagas counsel that both the estate and dependency claims were unsustainable^[4]. Ms Fisher KC for the Fuatagas, who did not appear in the Supreme Court, does not seek to revive those two heads of claim on appeal.
6. The Chief Justice was also satisfied, applying the old authority of Baker v Bolton^[5], that the Fuatagas’ third cause of action in negligence was unarguable because they were claiming as dependants whose underlying injury was baby Adira’s death. The Fuatagas appeal on the ground that this conclusion was wrong in law.
7. In order to give appropriate context to the rest of this judgment, we record that Perese CJ did not find or suggest that the common law of Samoa excludes the right to claim damages for nervous shock caused by a series of events involving the death of another. His decision was limited to the circumstances of this case, in particular to what he understood was the Fuatagas’ claim that the death of another was the operative or material cause of their nervous shock.

Analysis

(a) Strike Out

8. There is no difference between the parties about the test to be applied on an application to strike out a statement of claim. The question is whether the claim is so plainly and obviously untenable that it cannot possibly succeed^[6]. The Court must proceed on the basis that the facts alleged in the statement of claim are capable of proof unless there is uncontested affidavit evidence to the contrary. Amendments will be allowed to pleadings if necessary to recognize the possibility that a viable cause of action could emerge before trial^[7].
9. The Fuatagas’ claim is squarely based on the common law tort of negligence. Its essential features are the same in Samoa as in New Zealand, the United Kingdom and elsewhere in the Commonwealth^[8]. The three core elements are that (a) the defendant owed the plaintiff a duty to exercise reasonable skill and care in the particular circumstances; (b) the defendant breached that duty in one or more respects; and (c) the plaintiff suffered loss and damage as a result, including for mental injury or nervous shock relating to or the death of a third party. The elements of the Fuatagas’ existing pleadings, although they may require amendment, appear to satisfy these requirements with emphasis on the third.

(b) Baker v Bolton

10. The question then is whether the principle in Baker v Bolton nevertheless applies to render the Fuatagas claim untenable. That decision is said to stand for the principle that the dependents of a deceased person, whether in their own capacities or on behalf of that person, cannot sue for any tort alleged to have caused her death^[8]. The reason, as confirmed by Sapolu CJ in Sua v Attorney-General,^[9] is that the common law does not recognize the death of a person as an injury or as giving right to an action in damages in another person. The late Chief Justice’s judgment in Sua ^[10] traces the history of the statutory enactments in Samoa which modified the effect of the Baker v Bolton principle. In support of the Fuatagas’ appeal Ms Fisher does not challenge the statement of principle from Baker v Bolton on which the Chief Justice relied when concluding that their common law claim was untenable. She submits, however, that he erroneously applied it in finding that the Fuatagas’ claim must fail in their own rights.
11. Mr Leung Wai for Dr Ekeroma cites Baker v Bolton as authority for the propositions that to succeed in tort the Fuatagas’ must establish an injury; that the death of another, baby Adira, was not an injury; and thus no civil liability could arise for any negligence relating to the cause of her death.
12. Baker v Bolton must be considered in its context. It was decided in 1808 and arose out of an accident involving a horse drawn cart which overturned. The plaintiff and his wife were passengers. She later died of her injuries. The plaintiff claimed damages from the carriage operator in negligence. Lord Ellenborough LCJ directed the jury that the plaintiff’s right to compensation was limited to his own injuries, the loss of his wife’s society and his mental distress suffered up until the time of her death. That is because the death of a human being was not in law an injury. As will be apparent, nothing in Lord Ellenborough’s direction could have touched on the availability of a claim for damages by the parents of a stillborn based on allegations of negligent obstetric care.
13. In this case Perese CJ cited Sua, a dependency claim which had followed Baker v Bolton, as authority for striking out the Fuatagas’ claim. However, he erroneously concluded that the Fuatagas were suing as dependants despite earlier acknowledging that, first, they had abandoned this head of claim and, second, they were bringing a claim in tort on their own behalf. The fallacy in applying Baker v Bolton is reflected in the Chief Justice’s earlier acceptance of the Attorney- General’s submission that baby Adira was never a human being or a legal person ^[11]. Thus the ratio for that decision could not possibly apply.
14. Ms Fisher separately distinguishes Baker v Bolton on the ground that it does not bar any or all claims for mental anguish brought by a close relative of a dead person but only those claims where the underlying injury to the claimant, and thus the cause of loss, is the death of another. This proposition assumes, contrary to the Chief Justice’s finding which we endorse, that Adira was a legal person. Ms Fisher’s argument is that Baker v Bolton could not apply where the Fuatagas do not claim that Adira’s death was in itself an “injury” to them; it was instead a part, albeit an important part, of the factual matrix informing the severity of the mental shock, anguish, stress and anxiety which they suffered from the whole series of events occurring during the period of ante natal care and labour.
15. By reference to the Fuatagas’ claim as pleaded, Ms Fisher’s argument is supported by authority. Two relatively recent appellate decisions are relevant. In Queenstown Lakes District Council v Palmer^[12] the New Zealand Court of Appeal considered whether the provisions of the Accident Rehabilitation and Compensation Act 1992 barring claims for damages for physical injury applied to a claim in negligence for damages for nervous shock. The Court held that the provisions did not exclude that right at common law for a man whose wife was killed in a jet boating accident on a river. He was a passenger in the boat with her but escaped unharmed. He did not claim damages for the death of his wife, which would have been statute barred. The Court held, however, that he was arguably entitled to damages for his own nervous shock suffered as a result of a sequence of events of which his wife’s death was a part.^[13]
16. In North Glamorgan NHS Trust v Walters,^[14] the English Court of Appeal adopted a similar approach. The Court upheld an award of damages following trial in favour of a mother who suffered “pathological grief reaction”^[15] when waking to find her child having a fit at her bedside in hospital and having the child die in her arms 36 hours later after his life support was turned off. The hospital admitted its negligence in caring for the child. The leading judgment of Ward LJ surveyed all the leading English authorities^[16] His conclusion that mental shock can occur over a prolonged period where the facts and consequences of the defendant’s negligence are made up by a series of events is directly relevant here. The Court must consider the totality of the circumstances which brought the plaintiff into proximity in both time and space to the relevant events. Nervous shock cannot be isolated to a frozen period of time.
17. These principles are reflected in the conceptual evolution of the Fuatagas case. Originally, they pleaded that the TTM Hospital’s alleged negligence caused them the loss of their infant child but they gave notice to the defendants before the Supreme Court hearing that they abandoned that claim.^[17] Nor do they plead that the alleged negligence caused Adira’s stillbirth. As noted, their case is now that Adira’s death was a significant factor in the chain of events relating to Ms Fuataga’s antenatal care and labour which caused them nervous shock and on that basis it is plainly arguable.

(c) An Alternative Approach

18. The Fuatagas may wish to revise or supplement this intended approach in view of our satisfaction that a less conceptually complex route is available to them. In argument Ms Fisher acknowledged that despite the foreshadowed amended pleading the real source of the Fuatagas claim and the cause of their loss was Adira’s stillbirth. That was appropriate. In causation terms, on a but for approach, the Fuatagas would not have had a claim without the stillbirth. To avoid the causal artifice arguably inherent in the line of reasoning advanced by Ms Fisher, the Fuatagas could rely on the principle which has emerged from the English stillbirth cases of treating the mother and foetus as one legal person^[18]. By this means also they would sidestep the conceptual dispute arising from Baker v Bolton about whether Mrs Fuataga’s loss arose from the death of another. While the English stillbirth authorities have not been considered in Samoa, and we have not heard argument from counsel about their merits, an argument based upon the unitary classification of mother and foetus would plainly be available at trial of the Fuatagas’ claim.
19. This line of authority, if applied in Samoa, also appears to settle a distinction drawn in other English authorities, to which Ms Fisher referred, between the mother who was both a primary victim (one who was subject to the negligent medical treatment) and a secondary victim (one who witnessed the negligent treatment or its effects). The distinction is arguably relevant in determining the nature and extent of the emotional harm or mental suffering for which a claimant is entitled to be compensated. As we shall shortly discuss, this distinction was belatedly drawn by the Attorney- General in the Supreme Court and its resolution may be necessary where, if the mother falls into the latter category of a secondary victim, issues of foreseeability of loss arise.^[19] However, in the stillbirth cases the Courts have treated the mother as the primary victim whose right of claim exists in her own right regardless of whether she has suffered a psychiatric injury as a result of the still birth.
20. It is unnecessary for us to address this question because it will ultimately be a matter for determination on the facts at trial. While noting Ms Fisher’s submission that Mrs Fuataga would fall squarely into the first category of a primary victim, Mr Fuataga’s position may be more problematic. In this respect, if the Fuatagas continue with their claim in tort alone, the decision in van Soest v Residual Health Unit^[20] may present difficulties for Mr Fuataga. In that case the New Zealand Court of Appeal was satisfied that it was appropriate to adopt a policy control mechanism to limit the scope of tortious liability in this area, by excluding a right of claim by a secondary victim unless the alleged negligence has manifested itself in a recognizable psychiatric disorder or illness.

(d) The Attorney-General’s Concession

21. On this issue of entitlement to compensation, it is significant that on the eve of the hearing of this appeal the Attorney-General’s counsel produced a memorandum which they had filed in the Supreme Court on 30 November 2023. That occurred after the strike out hearing but before judgment was delivered. The memorandum recited the Attorney- General’s understanding that the Fuatagas’ claim now lay in negligence for damages for psychiatric injury or mental shock which counsel asserted was not pleaded in the statement of claim. This assertion relating to the latter condition was incorrect; the statement of claim expressly pleaded that the Fuatagas had “...suffered mental shock and anguish and stress and anxiety”.
22. The Attorney-General’s memorandum accepted on the authority of Durst v Petroleum Products Supplies Ltd^[21] that the Fuatagas were entitled to claim damages for mental disorder or nervous shock suffered as a result of the relevant circumstances. Despite recognising the arguability of these two conditions, the memorandum later sought to introduce a distinction by elevating the threshold for proof to a claim for psychiatric illness or disorder. To the extent that the Attorney- General is relying on satisfaction of that higher threshold of a psychiatric disorder, the proposed amendment to expand the pleading of damage to a claim for “...mental health and anguish, post-traumatic stress disorder, and complicated grief disorder” appears to meet it.
23. Before us, the Attorney-General sought to minimize the effect of this concession by reverting to an unconvincing technical argument based on the pleadings. We reject that approach. The concession is legally correct, and we can only assume from his omission of any reference to it that the Chief Justice’s attention was not drawn to the Attorney- General’s memorandum before he delivered judgment.
24. The defendants’ submissions do not otherwise engage with the substantive merits of Ms Fisher’s argument. Instead, they rely on perceived deficiencies with the pleadings and oppose her application to amend the statement of claim. This detailed procedural approach is unhelpful and contrary to authority. We are satisfied that it would be appropriate to grant the Fuatagas leave to amend in accordance with the changes signalled by Ms Fisher to ensure that the merits are fully heard. In any event, the proposed amendments do not change the core of the Fuatagas’ causes of action or seek to introduce any time barred claims; the proposed amendments will simply refine and refocus the case.
25. We record that in argument before us the Court pointed out to Ms Fisher that an alternative cause of action appeared to be available to the Fuatagas for breach of contract. While the core obligation to exercise reasonable care and skill is common to claims in contract or in tort, a claim in contract would appear to remove the foreseeability and recoverability of damage arguments foreshadowed by counsel for the defendants in argument before us. We note that the Fuatagas are within time to bring an alternative claim in contract against both defendants in the circumstances pleaded subject to any statutory defences which may be available to the Attorney- General.
26. In the result we are satisfied that the Fuatagas have an arguable claim in negligence against both defendants for damages. We record that awards for general damages for nervous shock and exemplary damages are traditionally modest. The Fuatagas originally sought awards under those heads of ST$1.75m and ST$300,000 respectively. In apparent recognition that those figures were plainly excessive they now seek such orders for such amounts as the Court considers fit.

Conclusion

27. It follows also that we are satisfied that the Fuatagas’ statement of claim when amended discloses an arguable case against both defendants, and the Supreme Court erred in striking it out.
28. The Fuatagas’ appeal is allowed and their statement of claim as amended is reinstated.
29. The defendants are ordered to pay one set of costs of ST$5000 together with reasonable disbursements to the Fuatagas.
    

JUSTICE HARRISON
JUSTICE ASHER
JUSTICE YOUNG

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^[1] Fuataga v Ekeroma [2024] WSSC 1.
^[2] Law Reform Act 1964, repealed by the Fabric of Laws Act Miscellaneous Repeal Act 2020.
^[3] Section 70 of the Supreme Court (Civil Procedure) Rules 1980.
^[4] See judgment at fn1 at [6] & [10] (b).
^[5] Baker v Bolton [1808] EWHC KB 192.
^[6] Woodroffe v Mataia [2017] WSCA 5.
^[7] McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 at [19].
[8] Article 111(1) of the Constitution, see also Sua v Attorney-General [2013] WSCA 12.
^[8] See judgment, at fn1above, at [10] (a).
^[9] See Sua, at fn 8 above, at para 11.
^[10] Sua, at fn 8 above, at paras 11 – 23.
^[11] See judgment, at fn 1 above, at [5](c).
^[12] Queenstown Lakes District Council v Palmer [1998] NZCA 190, [1999] 1 NZLR 549.
^[13] See also Owen v Residual Health Management Unit [2000] NZCA 163; [2000] 3 NZLR 475 (CA) at [16] & [18].
^[14] North Glamorgan NHS Trust v Walters [2003] 1 QR 6 (Walters).
^[15] Walters, at fn 15 above, at [1].
^[16] Walters, at fn15 above at [22]-[23], applying McLoughlin v O’Brien [1983] AC at 410 per Lord Wilberforce at 417 & 422.
^[17] See judgment, at fn1 above, at [7].
^[18] See Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 824 (QB) at [96] – [97], following RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) and Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB).
^[19] See Farrell v Merton, Sutton and Wandsworth Health Authority (2001) 57 BMLR 158 at p3.
^[20] Van Soest v Residual Health Management Unit [1999] NZCA 206; [2000] 1 NZLR 179 at [65] – [72].
^[21] Durst v Petroleum Products Supplies Ltd [2007] WSSC 64.