IN THE SUPREME COURT OF TONGA

Ika

v

Tuli

Supreme Court, Nuku'alofa 
Ward CJ 
C 438/00 

22 August 2000; 22 August 2000 

Practice and procedure — strike out application — cause of action disclosed — application refused 

The plaintiffs/respondents were the children of Malia Malu who died on 8 February 1999. Following her death, the body was taken to Vaiola hospital and placed in the mortuary. It was submitted that, as the result of a failure by the defendants to regulate the temperature, the body decomposed and was seen in that condition by members of the family. As a result, the funeral had to be held earlier than intended and, as a direct consequence, some of the family living abroad were unable to return in time to attend. The plaintiffs claimed negligence and damages for suffering from the emotional distress this caused them. The defendants applied to strike out the action on the ground that it disclosed no cause of action. The application was considered on the pleadings alone. 

Held: 

1. The fact there was no property in a dead body did not prevent a duty arising in relation to it. 

2. The statement of claim revealed facts that could demonstrate a duty of care and a failure to perform that duty. Whether that was the case or not or whether the plaintiffs were in a sufficient relationship of proximity was a matter for evidence at the trial. 

3. The ground for the claim was set out in the pleadings. The application to strike out was refused with costs to the plaintiffs. 

Cases considered: 
Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 
Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 All ER 294 
M'Alister (or Donoghue) v Stevenson [1932] AC 562; [1932] All ER Rep 1 
Williams v Williams (1882) 20 Ch D 659; [1881-5] All ER Rep 840 

Rules considered: 
Supreme Court Rules 1991 

Counsel for applicant: Mr Bloomfield 
Counsel for respondents: Mr 'Etika 

Judgment 

The plaintiffs/respondents are the children of one Malia Malu who died on 8 February 1999. Following her death, the body was taken to Vaiola hospital and placed in the mortuary. It is alleged that, as the result of a failure by the defendants to regulate the temperature, the body decomposed and was seen in that condition by members of the family. As a result, the funeral had to be held earlier than intended and, as a direct consequence, some of the family living abroad were unable to return in time to attend. 

The plaintiffs claim negligence and damages for suffering from the emotional distress this caused them. 

The defendants apply under O 8 r 6(1) to strike out the action on the ground that it discloses no cause of action. By rule 6(2), the application must be considered on the pleadings alone. 

The first basis for the application is that there is no property in a dead body and therefore no cause of action can arise from such a dead body. Insofar as there is a claim that these alleged events: "greatly embarrassed and humiliated their deceased mother …" it is clear there can be no claim and that part of the pleadings is struck out. However, the fact there is no property in a dead body does not prevent a duty arising in relation to it. 

Counsel cited the case of Williams v Williams (1882) 20 Ch D 659; [1881-5] All ER Rep 840 but that case does not help him on this point. Whilst it is often cited as an authority for the proposition that there is no property in a dead body, it is also authority for the fact that duties may still arise from it. In that case, Kay J ruled that the executors have a right to the possession of the body and have a duty to bury it. 

The second and main thrust of the application is that the pleadings do not disclose facts to demonstrate a sufficient proximity between the defendants and the plaintiffs or a duty to them in terms of Anns v Merton London Borough Council [1978] AC 728. 

Anns' case established a two-stage test of the existence of a duty of care based on the decisions in the trilogy of cases they cite at 751; M'Alister (or Donoghue) v Stevenson, Hedley Byrne and the Dorset Yacht Co. The first stage is to establish there is a "sufficient relationship of proximity or neighbourhood" between the alleged wrongdoer and the person claiming to have suffered damage and, if that is demonstrated, to ask whether there are considerations which might "negative, or reduce or limit the scope of the duty or the class of persons to whom it is owed." 

The claim here is one of negligent performance of a duty of care. That is a clear cause of action. The statement of claim reveals facts that could demonstrate a duty of care and a failure to perform that duty. Whether that is the case or not or whether the plaintiffs were in a sufficient relationship of proximity is a matter for evidence at the trial. 

The final ground is that the pleadings do not articulate the basis of the damages claimed. The claim is for unliquidated damages of $20,000.00 and exemplary damages of $10,000.00 because the "pain, inconveniences suffered by the plaintiffs physically and emotionally are irreparable … and greatly embarrassed and humiliated her surviving children for life with the living rumour". 

This is not a time to comment on the merits of that claim. I am satisfied the ground for the claim is set out in the pleadings. 

The application to strike out is refused with costs to the plaintiffs.