Fuataga v Ekeroma [2024] WSSC 1 (23 January 2024)

IN THE SUPREME COURT OF SAMOA
Fuataga & Anor v Ekeroma & Anor [2024] WSSC 1 (23 January 2024)

Case name:	Fuataga & Anor v Ekeroma & Anor
Citation:	[2024] WSSC 1
Decision date:	23 January 2024
Parties:	STEFFI CARRUTHERS-THOMSEN FUATAGA and KAINO THOMSEN FUATAGA (Plaintiffs) v AIONO ALEC EKEROMA trading as “HEALTH SPECIALISTS CLINIC” (First Defendant) & THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF HEALTH (Second Defendant).
Hearing date(s):	15 November 2023
File number(s):	CP 03/23
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:
Order:	The Court orders that the Plaintiffs statement of claim dated 26 January 2023, be struck out. It cannot possibly succeed. There being no extenuating or special circumstances, costs should follow the event. The parties are given two weeks from the date of this decision to try to settle costs, failing which the defendants are to file their submissions as to costs by 19 February 2024, and the Plaintiffs to file their submissions two weeks later, on 4 March 2024.
Representation:	L. K. Koria for the Plaintiffs S. Leung-Wai for the First Defendant V.T. Leilua & F. Kolia for the Second Defendant
Catchwords:	Breach of statutory duty – tort of negligence – general damages – exemplary damages – costs.
Words and phrases:
Legislation cited:	Fabric of Laws Miscellaneous Repeal Act 2020; Fatal Accidents Act 1974; Law Reform Act 1964.
Cases cited:	Baker v Bolton [1808] EWHC KB J92; Harrild v Director of Proceedings [2003] NZCA 125; Sua v Attorney General [2013] WSSC 1.
Summary of decision:

CP 03/23

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

STEFFI CARRUTHERS-THOMSEN FUATAGA and KAINO THOMSEN FUATAGA

Plaintiffs

A N D:

AIONO ALEC EKEROMA trading as “HEALTH SPECIALISTS CLINIC”

First Defendant

A N D:

THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF HEALTH

Second Defendant

Counsel: L. K. Koria for the Plaintiffs

S. Leung-Wai for the First Defendant
V.T. Leilua & F. Kolia for the Second Defendant

Hearing: 15 November 2023
Decision: 23 January 2024

RESERVED DECISION OF PERESE CJ

1. Tragically, Mr and Mrs Thomsen Fuataga’s baby, Adira, was delivered stillborn on 22 March 2022 at the TTM National Hospital, having died in utero some time on 22 March 2022.
2. They bring this proceeding against their obstetrician, Aiono Dr Alec Ekeroma, alleging negligence on his part. They also sue the Attorney General for and on behalf of the Ministry of Health whom it is alleged is vicariously liable for any relevant breach of statutory duty or negligence of its employees.
3. The claim is brought by Plaintiffs in their personal capacity, and in the Plaintiffs’ representative capacity as the parents and legal guardians of baby Adira. When they brought their proceedings, the Plaintiffs relied on the Law Reform Act 1964,^[1] but this position was abandoned, as will be discussed below.
4. The Plaintiffs say they have suffered damage, as follows:
   • (a) The Plaintiffs themselves –
     • (i) The loss of their infant child;
     • (ii) Mental shock and anguish;
     • (iii) Stress and anxiety;
   • (b) For and on behalf of their baby, Adira –
     • (i) Pain and suffering and loss of life;
     • (ii) Loss of amenity and enjoyment of life;
   • (c) They seek:
     • (i) General Damages in the sum of ST$1,750,000.00
     • (ii) Exemplary damages of ST$300,000.00
     • (iii) Such further orders the Court deems fit;
     • (iv) Costs.
5. Both Defendants filed motions to strike out the Plaintiffs’ claim. This reserved decision is limited to addressing these applications, which can for convenience be consolidated as advancing these grounds:
   • (a) The Plaintiffs’ claim is brought under the Law Reform Act 1964 (“LRA 1964”). However, that Act was repealed by the Fabric of Laws Miscellaneous Repeal Act 2020 (“FLMRA 2020”) and the Plaintiffs’ baby died after the Act had been repealed, on 22 March 2022. The Plaintiffs’ claim, based as it is on the repealed LRA 1964, cannot succeed.
   • (b) The common law position before to the enactment of the LRA 1964 is that any cause of action that existed at the time of the baby’s death died with her.
   • (c) The Second Defendant submitted during oral submissions, concerning the common law principle in Baker v Bolton^[2] – that in a civil court, the death of a human being cannot be complained of as an injury. Therefore, no claim can be brought against a wrongdoer, on behalf of the deceased’s dependants. The Fatal Accidents Act 1974 (“FAA 1974”) altered the principle in Baker v Bolton by enabling dependent claims (not estate claims that were available under the LRA 1964). However, the Second Defendant submits the FAA does not apply in this case because baby Adira died intra utero and was stillborn, and is not a “person” for the purposes of s. 3(1) of the FAA 1974, which refers to the death of a person.... What does this mean in law? In answer, I respectfully refer to this passage in the judgment of distinguished New Zealand jurist the late Sir John McGrath in Harrild v Director of Proceedings^[3] at [117]:
     • These decisions are also indicative of the settled position in other jurisdictions that at common law a foetus has no legal rights prior to birth and accordingly unless born. Of these the judgment of the Supreme Court of Canada in Winnipeg Child and Family Services v G (1997) 152 DLR (4th) 193 is of particular value in confirming a point implicitly made in Re F (in Utero). The modern justification for the born alive rule is that legal complexities and difficult moral judgments would arise if the Courts were to alter the common law to treat the foetus as a legal person. The majority judgment of McLachlin J in Winnipeg Child and Family Services instances possible actions on behalf of a foetus to prevent abortion or to recover damages from the mother for her lifestyle choices (at p206). It is important however to bear in mind that the rule according legal rights only at birth is in modern times one founded on convenience. It does not rest on developed medical or moral principle.
     • (my emphasis)
6. Mr Koria in his written submission informed the Court, that:
   • 16. WITH the repeal of the Law Reform Act in 2020, an estate claim can no longer be brought by family members.
   • 17. THE Plaintiffs confirm that their claim places no reliance on the repealed Law Reform Act; nor do they seek to bring a dependency claim under the Fatal Accidents Act 1974.
   • 18. FOR the avoidance of doubt, the Plaintiffs bring this action in common law, and seek damages for the tort of negligence.
7. The Plaintiffs further stressed their negligence claim later at paragraph 33 of Mr Koria’s written submissions:
   • FOR the avoidance of doubt, the Plaintiffs bring a single action in negligence against each of the Defendants. The damage/loss alleged is mental shock or psychiatric injury occasioned by the negligence of the medical staff members who were involved with the childbirth on the date in question.
8. Mr Koria submitted the damages the Plaintiffs seek are for mental shock or psychiatric injury. However, the claim appears to be considerably wider; it includes, on behalf of baby Adira, a claim for loss of amenity and enjoyment of life.
9. For the purposes of this judgment, a discussion of the alleged facts serves no helpful purpose in determining the justiciability of the Plaintiffs claim. In any event it is unnecessary to recount the agony and pain that the Plaintiffs suffered; on the other hand, one must be careful to not inadvertently cause harm to professional reputations based on untested evidence.
10. I am satisfied the Plaintiffs claim in negligence must be struck out. A claim in common law cannot succeed.
    • (a) The common law principle which is well established in our jurisdiction, based on the principle in Baker v Bolton is that the dependants of the deceased person, such as the Plaintiffs, either on their own behalf or on behalf of baby Adira, cannot sue for any tort alleged to have caused the death of the deceased.^[4] A claim of negligence is a claim in tort.
    • (b) Although the Plaintiffs do not rely on either the LRA 1964 or the FAA 1974, I note for completeness:
      • (i) That a claim seeking to advance an estate claim, as would have been provided for in the LRA 1964 had it not been repealed, is met by the common law principle that a deceased person’s interests at the time of death dies with the death of the person.
      • (ii) An FAA 1974 claim is also not justiciable because baby Adira was a foetus at the time of death and she was still born; this Act cannot apply.

DECISION

11. The Court orders that the Plaintiffs statement of claim dated 26 January 2023, be struck out. It cannot possibly succeed.
12. There being no extenuating or special circumstances, costs should follow the event. The parties are given two weeks from the date of this decision to try to settle costs, failing which the defendants are to file their submissions as to costs by 19 February 2024, and the Plaintiffs to file their submissions two weeks later, on 4 March 2024.
13. The court thanks Counsel for their extensive submissions.

CHIEF JUSTICE

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^[1] Statement of Claim para 2.
^[2] Baker v Bolton [1808] EWHC KB J92.
^[3] Harrild v Director of Proceedings [2003] NZCA 125.
^[4] Sua v Attorney General [2013] WSSC 1, at 11.