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Khalil v Fiji Times Ltd [2009] FJHC 281; HBC185.2009 (1 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 185 of 2009

BETWEEN:

HABIBUN KHALIL as Administratrix of the Estate of MOHAMMED KHALIL, Deceased, Estate.
Plaintiff

AND:

THE FIJI TIMES LIMITED a limited liability company having its registered office at Robertson Road, Suva.
Defendant

RULING

Before: Master Anare Tuilevuka

Counsel: Mr. Inoke Lutumailagi for the Plaintiff
Mr Kemueli Qoro for the Defendant

Date of Hearing: 01st December 2009
Date of Decision: 01st December 2009

DECISION
(Abatement of defamation suit upon death of plaintiff )

Introduction

[1] Habibun Khalil is the widow of the late Mohammed Khalil ("Mohammed"). On 14th October 2007, Mohammed was a passenger in LM 189 (a public service vehicle as obvious from its registration number). Mohammed was sitting on the front passenger seat. On the occasion in question, LM 189 was travelling along the Labasa-Seaqaqa highway when, at the Tabicola Tri junction just outside Labasa, it was involved in a head on collision with another vehicle. Mohammed died as a result. It is not clear whether he died on the spot, later on the same day, the day after or some days after.

[2] In any event, the Fiji Times printed a story about the accident on page 5 of its publication of 15th October 2007, which is the day after the accident. The Statement of Claim alleges that the Fiji Times’ account of the accident was wholly inaccurate and riddled with inaccuracies "from the identity of the persons involved to the manner in which the said collision occurred".

[3] The Statement of Claim then alleges at paragraph 5 that the Fiji Times article was, "as a whole misleadingly informs the public that the accident was due wholly to the careless and/or negligent driving of the said deceased".

[4] The Statement of Claim then goes on to plead as follows in paragraphs 6 and 7:

"THAT apart from causing a lot of family conflict, the article has also caused the Plaintiff and her children and family a lot of mental anguish, distress and harassment during their time of mourning"

THAT in consequent thereof, the Plaintiff has suffered damages.

PARTICULAR OF DAMAGES

(a) Mental anguish

(b) Distress

(c) Harassment

(d) Especially in time of mourning

[5] The Plaintiff also seeks general, exemplary and aggravating damages plus costs and interest.

[6] On the 4th day of November 2009, Munro Leys, the solicitors for Fiji Times, filed a Summons to Strike Out the Statement of Claim pursuant to Order 18 Rule 18(1)(a) on the ground that it (the Claim) discloses no reasonable cause of action.

[7] The jurisdiction to exercise the discretion under Order 18 Rule 18(1)(a) is indeed guardedly exercised as submitted by Counsels for the Defendant. Only in cases where, on the pleaded facts, the Plaintiff cannot succeed as a matter of law, will the Courts exercise the discretion to strike out the claim.

[8] The submissions filed by the Fiji Times is that the article in question was published the day after the plaintiff died and therefore the defamation suit is not sustainable. Counsel then cites various passages from the eighth and eleventh editions of Gatley on Libel and Slander, and also from Defamation Law, Procedure & Practice (author’s name omitted in the submissions).

Discussion

[9] Firstly, there is no evidence before me as to when Mohammed actually died. All I can gather from the pleadings is that he died as a result of the accident but whether he died on the same day or later is not known.

[10] Secondly, the statement of claim does not state that the cause of action is founded on defamation. This however highlights the inherent weakness in the Plaintiff’s Statement of Claim rather than the Defendant’s application to strike it out.

[11] When read in its entirety, the Statement of Claim appears to proffer a case theory in the following terms: there was a motor vehicle collision, that resulted in the death of Mohammed, who was travelling as a passenger in one of the vehicles that was involved in that accident, the Fiji Times ran a story on the accident, which story erroneously attributed the cause of the accident to Mohammed’s negligent driving, the story also had other inaccuracies (e.g. referring to Mohammed as "Mohammed Farman", stating that he was a 40 year old police officer, there was a tyre burst, Mohammed’s car was racing with another car), and because of all that, the Plaintiff has suffered mental anguish and stress and harassment).

[12] Mr. Lutumailagi conceded in Court that a claim based on defamation is not sustainable on the death of the Plaintiff. He sought leave to amend his statement of claim, to which Mr. Qoro objected.

[13] Mr. Qoro in his submissions went to great lengths to highlight that Mohammed died the day before the Fiji Times published the article in question and therefore, the common law applies that a defamation statement about a person who is dead when the statement is made does not give rise to a civil cause of action for defamation.

[14] I must point out that, if the cause of action was founded on defamation, and even if the alleged defamatory statement was made whilst Mohammed was still alive, and even assuming that there was a reasonable cause of action, the cause of action would abate upon the death of Mohammed. This is the effect of section 2 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27) which states as follows:

Effect of death on certain causes of action

2.-(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section 32 of the Matrimonial Causes Act for damages on the ground of adultery.

(emphasis added)

[15] Hence, If the Statement of Claim had been founded on defamation, then obviously, it would not survive the guillotine effect of section 2 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27) upon the death of Mohammed.

[16] But that is not the only problem to the Plaintiff’s Statement of Claim. I am of the view that the facts as pleaded could not possibly succeed as a matter of law on any other cause of action.

[17] Mr. Lutumailagi has sought leave verbally in Court to amend his statement of claim to plead only Mental Anguish and Distress as the cause of action. Usually, Mental Anguish and Distress are pleaded as damages suffered, not causes of action. I have refused him leave as he has not filed a formal application. Even if he had, it would be unlikely to survive another Order 18 rule 18(1)(a) application if the proposed amendment were to be based on the same factual matrix as I have highlighted above in paragraph 11.

Conclusion

[18] In the final, I rule that the Statement of Claim discloses no reasonable cause of action. Accordingly, I hereby strike it out with costs which I summarily assess at $350-00 to the Defendant to be paid within 14 days.

A. Tuilevuka
Master

01st December 2009