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Rika v Principal of Lelean Memorial School [2011] FJHC 322; HBC229.2009 (3 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 229 OF 2009

BETWEEN:

SEFANAIA RIKA
PLAINTIFF

AND:

THE PRINCIPAL OF LELEAN MEMORIAL SCHOOL.
1st DEFENDANT

AND:

THE METHODIST CHURCH OF FIJI
2nd DEFENDANT

Appearances: Mr. Daniel Singh for the plaintiff.
Ms. Laurel Vaurasi for the Defendants.

Date / Place of Judgment: Friday, 03rd June, 2011 at Suva.

Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

___________________________________________________________________________

STRIKING OUT – NO CAUSE OF ACTION – ORDER 18 RULE 18 (1) (a) – HIGH COURT RULES, 1988 - pleadings disclose triable issues of negligence on the part of the defendants - application for striking out not made out-application dismissed with an order for costs of the application to be costs in the cause.
_____________________________________

Legislation

High Court Rules 1988.
Religious Bodies Registration Act Cap. 68.

The Application

1. This is the defendants' application to have the statement of claim filed against them struck out on the grounds that it discloses no reasonable cause of action. The application is filed pursuant to Order 18 Rule 18 (1) (a) of the High Court Rules 1988.
   
2. The application is opposed by the plaintiff.
   
3. The grounds upon which the application is filed are that:-
   
   1. The plaintiff was electrocuted at a place outside the school compound and the plaintiff was not under the control and possession of the 1st defendant, thus, the Occupier's Liability Act, Cap. 33 does not apply to the 1st defendant.
      
   2. The Health and Safety Work Act 1996 also does not apply to the first defendant as the plaintiff was not an employee of the defendants.
      
   100. The plaintiff had left the school compound on her own volition.
        
   4. The plaintiff's have failed to bring their action in compliance s. 2 of the Religious Bodies Registration Act which requires the trustees to be sued and not the church itself.
      

The Submissions

4. The defendants counsel submitted as follows:-
   
   1. The plaintiff has failed to plead what duty of care the defendants owed to the plaintiff and what was the breach. The breach of statutory duty pleaded under the Health and Safety Act 1996 does not apply as the relationship of the parties was not that of an employer and employee. The breach of Public Service Act 1999 also does not apply. There is thus no case against the first defendant.
      
   2. The 2nd defendant should have been sued through its trustees. There is no case against the 2nd defendant.
      
5. The plaintiff's counsel submitted that this is a case of negligence and enough particulars are provided which indicates that there is an action to be tried on merits. The counsel further stated that the registration of the trustees of the 2nd defendant is in breach of s. 3 of the Religious Bodies Registration Act Cap. 68 as the third trustee must be a Reverend and he is not. This is a very sensitive point and so the Church itself was sued.
   

The Law and the Determination

6. The law on striking out for no cause of action is well settled. There are enough judicial determination on this subject and I do not wish to repeat them unless it is necessary.
   
7. The plaint in the statement of claim are that:-
   
   1. The plaintiff is the father of a deceased female named Sera Nairusa Rika who died on the 24th day of November, 2006 at Lelean Memorial School. The deceased was a form 6 boarding student at the subject school and under the control of the 1st defendant.
      
   2. On the 24th day of November, 2006, the deceased was walking within the school compound at about 9.00pm and got electrocuted after coming into contact with a fallen main live electricity wire and died shortly thereafter.
      
   100. The incident took place as a result of the negligence and/or breach of statutory duty on the part of the 1st defendant and/or the 2nd defendant or their servants or agents.
   4. The particulars of negligence are that there was:-
      
      • failure to exercise any proper degree of care for the safety and life of the plaintiff;
        
      • failure to ensure that the plaintiff was not exposed to risk to her health or safety pursuant to s. 10 of the Health and Safety At Work Act, 1996;
        
      • failure to upgrade the school electrical reticulation system and to carry out proper maintenance and vigilance work on the consumer pine post to ensure the cross arm was not rotten;
        
      • failure to engage a registered licensed electrical contractor to upgrade the school's electrical reticulation system;
        
      • failure to provide a safe school compound or to ensure that the school had a teacher or caretaker to supervise or control the movement of the student and in particular the plaintiff safely within the school premises at night;
        
      • failure to discharge common law duty to plaintiff in breach of ss. 3, 4, and 5 of the Occupiers' Liability Act, Cap. 33; and
        
      • failure to exercise care and diligence in the course of employment pursuant to Section 6 (2) of the Public Service Act 1999 and the codes of ethics of the teaching profession laid down by the Ministry.
        
8. In the statement of defence, the defendants admitted that the deceased was a boarding student and that she died of electrocution but the allegation of negligence is denied. It is further raised in the defence that the death occurred due to sole negligence of the deceased in that the deceased:-
   
   • Failed to observe the school and hostel rules;
     
   • Failed to obtain the permission of the relevant authority to proceed to the path/compound of the Young Peoples Department at night;
     
   • Was walking and running around the compound at night without paying any heed to her path;
     
   • Failed to take caution or precaution or pay due care and attention when walking and running around the compound at night;
     
   • Failed to take a reasonable standard of care for herself and/or as a reasonable person walking and or running around the compound at night during strong winds and heavy rain; and
     
   • Failed to give attention and/or precaution for her own safety while walking and/or running around the compound at night during strong winds and heavy rain.
     
9. It is trite law that the issue of striking out has to be determined against the pleadings and so the need for the court to ascertain the claim and the defence which I have outlined above.
   
10. I will first deal with the 1st defendant.
    
11. This is a case of negligence and the allegations in the pleadings do disclose a chance of success against the 1st defendant. A student has died whilst in the custody and care of the school and negligence is pleaded against the principal and from the particulars of negligence there are many that relate directly to the principal, in particular the failure to exercise proper degree of care of the safety of the life of the plaintiff, and the failure to ensure that the school had a teacher or caretaker to supervise or control the movement of the student and in particular the plaintiff safely within the school premises at night.
    
12. The 1st defendant prima facie has a duty of care to the students of the school. He is the head of the school who supposedly controls the teachers and the students and allocates duties and gives directions to them. It is therefore reasonable that a claim be made against the principal for evidence to be adduced to ascertain whether the death of the child was as a result of the shortcomings of the principal. There is definitely a reasonable case against the principal.
    
13. On the issue of the 2nd defendant, in fact, the law is undisputed that the trustees should have been sued pursuant to s. 2 of the Religious Bodies Registration Act, Cap. 68. The section reads as follows:-
    

" All suits and proceedings at law instituted or brought by or against any religious body shall be instituted or brought by or against the person registered as hereinafter provided as trustees for the time being of such religious body and any such suit or proceeding shall be carried to its final termination notwithstanding any alteration in the registered trustees of such religious body while such suit or proceeding is pending"

14. Whether the trustees are rightly appointed or not is not the issue. The fact is that the registration has provided the names of the trustees and thus they are the ones who should be sued. This does not diminish or eradicate the liability of the church but only identifies the proper party to the action. In its current form, there is breach of s. 2 of the Religious Bodies Registration Act but this can be cured by an amendment because the liability at the end of the day may remain with the church.
    
15. Mr. Singh did raise in court that in the past many cases have been registered against the Methodist Church in Fiji and proceedings were allowed. Perhaps this issue of s. 2 was never argued in those cases and because it has been raised in this matter, it is my duty to spell out the law correctly which burden I have discharged.
    
16. The particulars of negligence in the statement of claim clearly indicates that the church could be well liable for not maintaining the premises and for allowing the student to be let out at night when she was under the control of the school. Evidence will clarify the issue but I find that there is a triable case.
    
17. Some statutes that have been pleaded may not be applicable as well. I can only say so far as that. It is best for the plaintiff to carefully go through these Acts and ascertain the relevancy and the applicability of the same in its case of negligence.
    
18. One must not forget that the plaintiff's case is not absolutely based on breach of statutory provisions. It also raises the issue of common law negligence and my finding is that there is case of common law negligence, at least, against both the defendants for the issue to be tried.
    
19. I will not order any amendments at this stage. The matter is best left with the plaintiff for it to revise its claim immediately and apply for any amendments it so wishes including an application to substitute the trustees of the church as 2nd defendants instead of the church itself. It is best that one amendment deals with all the shortfalls in the claim at once. The aspect of amendment can be dealt with by the master of the High Court.
    

Costs

20. This is not an application which has determined the matter finally and in my judgment an order for costs in the cause would be justified.
    

Final Orders

21. For the above reasons I make the following orders:-
    
    1. The defendants' application to strike out the claim is dismissed.
    2. Any application for amendment must be made within 21 days before the Master.
    100. Costs of this application shall be the costs in the cause.
         

____________________

Anjala Wati
Judge
03rd June, 2011
At Suva.
To:

1. Mr. Daniel Singh for the plaintiff;
2. Ms L. Vaurasi for the defendants; and
3. File: HBC 229 of 2009.