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Tabuvale v Divisional Engineer Northern [2004] FJHC 173; HBC0033R.2001B (23 January 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 0033 OF 2001

Between:

MEREIA TABUVALE
Plaintiff

- and -

THE DIVISIONAL ENGINEER NORTHERN
THE ATTORNEY GENERAL
Defendants

Mr. H. Robinson for the Plaintiff
Mr. R. Green for the Defendants/Applicants

RULING

This case concerns a young girl who fell into an uncovered hole in the footpath whilst making her way to school. As a result of her fall the plaintiff suffered lacerations to her leg, hip and knee. The footpath was being repaired by the defendants at the time. The plaintiff claims damages for her personal injuries.

The particulars of negligence allege that the defendant failed to take any or adequate precautions for the safety of the plaintiff; failed to provide a safe surface on the footpath; and failed to warn the plaintiff of the dangers to which she was exposed whilst walking on the footpath.

The defendant is sued as the relevant authority charged with the duty to build and maintain public roads. The defendant after acknowledging service, seeks the dismissal of the action on the ground that it discloses no reasonable cause of action. No affidavit has been filed in support.

In its written submissions the defendant denies liability on the basis that the plaintiff’s claim is based on a failure or omission on the defendants’ part rather than on any positive act(s) committed by the defendants’; secondly the plaintiff’s injuries were solely caused by her own negligence in failing to keep a proper lookout when walking along the footpath rather than by anything the defendant did; thirdly, the policy of the relevant legislation namely the Roads Act (Cap. 125) militates against the imposition of a duty of care in the particular circumstances; and fourthly, imposing a duty in the circumstances would expose the defendants to an indeterminate liability and to claims by an infinite class of road users.

In reply the plaintiff submits that her claim is not one based on nonfeasance but rather for misfeasance on the part of the defendant in rendering the footpath unsafe through its negligent actions in carrying out the repair works.

The principles that guide the Court in considering an application to dismiss a cause of action are not in dispute. It is only where the pleaded claim is so plainly wrong or insupportable on its face that the Court’s pre-emptive powers may be exercised.
Having considered the plaintiff’s Statement of Claim and the written submissions it is sufficient to dispose of this application by reference to the headnote in Oamaru Borough v. McLeod (1967) N.Z.L.R. 940 which reads:

‘Where in the course of improving a street or roadway a borough Council creates new conditions which themselves create a danger which ought to have been foreseen and reasonable steps are not taken to guard against the danger, the council is responsible for damage which results from its negligent performance of the work.’

Accepting the pleaded facts as I am obliged to, the road works being conducted by the defendants at the relevant time left exposed an uncovered, unfenced and unsign-posted hole on the footpath into which the plaintiff fell. This was an act of misfeasance on the part of the defendants that created a potentially dangerous situation for which a claim for consequential damages is ordinarily available to anyone injured thereby. The claim is plainly well-founded.

The application is accordingly dismissed with costs of $100 awarded to the plaintiff and the defendants are ordered to file and serve a Statement of Defence within 14 days of the date hereof.

(D.V. Fatiaki)
Chief Justice

At Suva,
23rd January, 2004.