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Hansell v Attorney General [2018] WSSC 74 (4 May 2018)

SUPREME COURT OF SAMOA
Hansell v Attorney General [2018] WSSC 74

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER:

BETWEEN:

ALOFITAI HANSELL male of Salelologa.
Applicant

AND:

THE ATTORNEY GENERAL sued for and on behalf of the Ministry of Police.
Respondent

Counsel:
M Lui for applicant
M Vaai and F Sofe for respondent

Decision: 04 May 2018

JUDGMENT (MOTION TO STRIKE OUT)

1. These proceedings concern an application by the Defendant to strike out the Plaintiff’s Statement of Claim either in its entirety or in part pursuant to:
   • (i) Rule 70 of the Supreme Court (Civil Procedure) Rules 1980; and/or
   • (ii) The inherent jurisdiction of the Supreme Court.
     
2. The grounds of the Defendant’s application to strike out the Statement of Claim are:
   • (i) The claim is frivolous and vexatious and has no prospect of success; and
   • (ii) The Statement of Claim is defective because:
     • (a) Cause of action 2 – (abuse of process) – the Plaintiff does not specify what ‘process’ the Defendant has breached to give rise to a maintainable cause of action;
     • (b) Cause of action 3 - (unlawful arrest and unlawful detention) – the Plaintiff does not specify what law has been breached to give rise to a maintainable cause of action;
     • (c) Cause of Action 4 – (Negligence) – not pleaded in the Motion to Strike Out but addressed in Defendant counsel submissions as pleadings that do not support a viable cause of action;
     • (d) Cause of action 5 (breach of Statutory duty) – the Plaintiff does not specify what statute has been breached and/or how this gives rise to a maintainable cause of action; and
     • (e) Cause of action 6 (Breach of Constitutional right) – the Plaintiff’s right of relief for breach of right under the Constitution is stated in the Constitution and cannot be maintained in a claim for damages and is therefore an abuse of process.
3. In support of the strike out motion, the Defendant filed an affidavit sworn by Constable Ese Va’alele of the Samoa Police Service, Tuasivi.

Statement of Claim:

4. In summary, it is alleged by the Plaintiff that on Friday the 2^nd of June 2017, he was driving a vehicle when the steering wheel of the vehicle suddenly had no control over the vehicle. As a result, the vehicle went over a footpath and remained stationary on the footpath. The Police drove past, saw the vehicle on the footpath and arrested the Plaintiff. The Plaintiff was taken to Tuasivi Police Station and held in Police custody overnight.
5. The Plaintiff alleges that no one was questioned about why the vehicle went over the footpath and Police did not examine the vehicle at the time of his arrest.
6. In custody, the Plaintiff alleges that he was assaulted by police officers Ese Va’alele and Misi Iosefa. As a result, he allegedly suffered a head injury as a result of the assault including (a) left head scalp laceration; (b) bruising on his back; (c) broken tooth; and (d) tender left jaw.
7. The Plaintiff’s various causes of action pleaded against the defendant are alleged to arise from (a) the circumstances of his arrest and detention; and (b) his alleged assault by police.

The Law:

8. The principles governing the Court’s exercise of its jurisdiction to strike out are well settled. There are two sources of the Supreme Court’s jurisdiction to strike out proceedings. The first is rule 70 of the Rules which provides:

"Where in any proceedings no cause of action is disclosed the Judge may, on the application of the defendant order the proceedings to be struck out."

9. The second source is the Supreme Court’s inherent jurisdiction. This has been often considered by the Courts. In Jackson v Attorney General [2009] WSSC 73 (26 June 2009), Nelson J summarized the jurisdiction as follows:

“The legal basis upon which a court will strike out an action because it is frivolous, vexatious or an abuse of process is well known and established. All counsels have referred to them in their submissions in particular the leading case of Enosa v Samoa Observer [2005] WSSC 6 where it was said –

"A pleading or action is frivolous when it is without substance, groundless, fanciful, wasting the courts time or not capable of reasoned argument. A pleading or action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or is oppressive".

As well the observations of the court in Kneubhl v Liugalua [2000] WSSC 27:

"The power to strike out, stay or disunde under the courts inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised with great circumspecand only where it is perfectly clear that the plea cannot succeed, it ought to be exercisedcised sparingly and only in exceptional cases."

10. As these are strike out proceedings, the Plaintiff’s pleadings are assumed to be true, that is to say, it is capable of proof (Enosa v Samoa Observer Co. Ltd. [2005] WSSC 6; Asiata v Attorney General (unreported) 8 May 2009; Pacific Forum Line Ltd v Samoa Ports Authority [2011] WSSC 92; Jackson v Attorney General; Johns v Johns & Holloway [2004] NZCA 42).
11. In Pacific Forum Line Ltd v Samoa Ports Authority, Sapolu CJ said in relation to the strike out of a cause of action on the basis that it is not maintainable in law that:

“The jurisdiction to strike out a particular cause of action in a statement of claim as not being maintainable in law must be sparingly exercised.”

Discussion:

Vicarious Liability:

12. The Plaintiff is suing the Attorney General on behalf of the Ministry of Police (“the Ministry”). The liability of the Ministry is alleged to arise from the actions of Police Constables Ese Vaalele and Misi Iosefa arresting the Plaintiff, detaining him and whilst in custody, assaulting him.
13. The Defendant submits at paragraph 49 of the written submissions that at no stage does the Plaintiff plead that the Defendant is vicariously liable for the actions of Police Constables Ese Vaalele and Misi Iosefa. In response, the Plaintiff says at paragraph 4(iii) of her submissions:

“Just because vicarious liability is not specifically mentioned does not mean it is not contained within the pleadings. Obviously it is a matter of vicarious liability and therefore the facts pleaded support a claim for vicarious liability.”

14. While it may be correct that the Plaintiff has not pleaded vicarious liability, the Defendant’s strike out motion also does not include the failure to plead vicarious liability as a ground of the strike out motion. It is only raised in submissions in support of the application to strike out.
15. The importance of pleadings and the jurisdiction to order further and better particulars was addressed in detail by Sapolu CJ in Pacific Forum Line Ltd v Samoa Ports Authority [2011] WSSC 92. I will not repeat what His Honour Sapolu CJ stated but I refer counsel to paragraphs 6 – 10 of that judgment.
16. If the Defendant’s liability is alleged to be based on vicarious liability for the actions of Police Constables Ese Vaalele and Misi Iosefa for exemplary or punitive damages, that must be expressly pleaded (See: Civil Remedies in New Zealand, Thomson Brookers (2003) at p. 578).
17. Leave is granted to the Plaintiff to amend the Statement of Claim to expressly plead vicarious liability.

Grounds of Strike Out Motion:

Cause of Action 1 – Assault and Battery.

18. The Defendant’s principal ground to strike out the first cause of action is that the Plaintiff has failed to plead an intention on the part of the Police Constables to assault the Plaintiff. The Plaintiff’s Statement of Claim relevantly pleads:

“8. The Plaintiff whilst in Police custody was assaulted by police officers, namely, Ese Vaalele and Misi Iosefa.

9. The Plaintiff sustained injuries as a result of the assault whilst in Police custody.”

19. The Plaintiff further pleads at paragraph 12 that, “the Police officers ribbed (sic) off the plaintiff’s rosary from the plaintiff’s neck and then proceeded to assault the plaintiff causing the following injuries...”
20. In Bullen & Leake & Jacobs Precedents of Pleadings, Thirteenth Edition, London & Maxwell 1990, the learned authors at p. 53 state:

“In an action for damages for assault or for assault and battery, i.e an intentional trespass to the person, the statement of claim must allege that the act or conduct complained of was intentional, otherwise it will not disclose a cause of action (see: Fowler v Lanning, [1959] 1 Q.B. 426).”

21. In Batchelor v Harrison [2009] WSSC 119, His Honour Sapolu CJ also addressed the torts of assault and battery and distinguished between the two causes of action as follows:

“7. Assault is one of the three torts that come under the general heading of trespass to the person. The other two are the tort of battery and the tort of false imprisonment. Often the terms "assault and battery" appear together because a single act or series of acts may give rise to the commission of the two torts at the same time. However, the tort of assault is quite distinct from the tort of battery. Thus a person may commit an assault without committing a battery or commit a battery without committing an assault.”

22. In Batchelor v Harrison (supra), Sapolu CJ then addressed the elements of the tort of assault:

“8. It would appear from the authorities that the tort of assault consists of three elemwhichwhich the plaintiff has to prove in order to succeed against the defendant. These are:

(1) there must have be overt act by the defendant causing the plaintiff to apprehend the infliction of immediate iate and unlawful force;

(2) the defendant must have had an intention either to use force or create in the plaintiff an apprehension of the use of force; and

(3) the defendant must have had the capacity to carry out that intention immediately.”

23. In Bullen & Leake & Jacobs Precedents of Pleadings (supra), the learned authors at p. 53 similarly distinguish between the two torts in the following terms:

“An assault is an act involving an imminent threat to touch another in a hostile manner with the capability to carry out such threat: a menacing attitude, such as holding up a stick to strike a person who is within reach at the time, constitutes an assault (Stephens v Myers [1830] 4 C. & P 349). A person may commit an assault without committing a battery (see Jones v Sherwood [1942] 1 K.B. 127).

Battery requires physical touching, whether with hand, weapon or missile. The act itself must be intentional, but an intent to injure is not an essential element of the tort (Wilson v Pringle [1986] EWCA Civ 6; [1987] Q.B 237)...”

24. In some commentary and authorities, the tort of battery can include a negligent act. In The Laws of New Zealand (online looseleaf edn, Lexis Nexis) Trespass to the Person: Assault and Battery at [126], the learned authors state:

“A battery is an act of the defendant, either intentional or negligent, which directly causes some physical contact with the person of the plaintiff without the latter's consent.”

25. In Croucher v Cachia [2016] NSWCA 132, the New South Wales Court of Appeal also addressed the tort of battery:

“22. Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474 that “[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action” (ie battery and negce).

26. Although the Plaintiff’s pleadings are pleaded as both ‘Assault and Ba”, the cause of actioaction on the facts pleaded appear to be a cause of action for battery. The Plaintiff’s statement of claim confuses the two causes of action applying assault in its general parlance as opposed to the tortious use of the term. It also fails to plead intention. Despite these defects, the defects can in my view be cured by amendment.
27. Leave is therefore granted to the Plaintiff to re-plead his cause of action in assault or battery or assault and battery and to properly particularize the cause or causes of action so as to ensure that the Court and the Defendant are fully and fairly informed of the cause of action.

Cause of Action 2 – Abuse of Process.

28. The Plaintiff’s second cause of action is alleged abuse of process. The Defendant’s ground for strike out is that “the Plaintiff does not specify what ‘process’ the defendant has breached to give rise to a maintainable cause of action.” In submissions, the Defendant further submits that “there is no cause of action maintainable at law where a process is not stipulated within the claim.”
29. At paragraph 18 and 19 of the Statement of Claim for abuse of process, the Plaintiff refers to the ‘arrest process’ as the relevant process, that is in executing the arrest, the Defendant used un-necessary force and did so for the ulterior purpose of oppression of the Plaintiff.
30. The Plaintiff further submits at paragraph 4(b)(i) of the written submissions:

“the process being abused is the legal process of arrest and detention, and the use of unnecessary force and the use of assault in executing the arrest process.”

31. The cause of action pleaded by the Plaintiff is based on the process of arrest and in submissions, extended to include detention. The pleading misunderstands in my view the tort of abuse of process and the legal process contemplated by the tort. In The Laws of New Zealand (online looseleaf edn, Lexis Nexis) Abuse of Process: at [179], the learned authors state:

“It is a tort to use legal process in its proper form in order to accomplish a purpose other than that for which it was designed and, as a result, to cause damage. The plaintiff need not prove want of reasonable and probable cause, nor is it necessary that the proceedings have terminated in his or her favour. The plaintiff must show that the defendant has used the proceedings for some improper purpose... As the criteria for the tort are less stringent than those for malicious prosecution, it is not available in respect of the initiation of criminal proceedings; however, the action might lie in respect of a criminal prosecution if it could be shown that subsequent to their initiation the proceedings were perverted or used by the defendant for some improper purpose.

The essence of the tort of abuse of process is the use of Court process outside the ambit of the legal claim upon which the Court is asked to adjudicate;...” (emphasis added)

32. In Cunningham v Clarke (High Court, Wellington, CP 93/88, 23 March 1990) Gallen J at pp 43 - 44 stated:

“The Plaintiffs claim that the initiation and continuation of the private prosecution in which the second defendant Michael Sinai was informant and the first Plaintiff Thomas Cunningham was the defendant, amounted in any event to the tort of abuse of process. The question immediately arises as to whether it is possible to maintain an action for abuse of process in respect of the initiation of a criminal prosecution, there being the specific tort for wrongful prosecution which covers such a case. The criteria for the tort of abuse of process are not as stringent as those which apply in the case of wrongful prosecution and this must of itself I think amount to a ground for concluding that both are generally not available. The reasons for stringency in the tort of malicious prosecution are as has already been mentioned, the need to ensure that people are not unreasonably inhibited from initiating criminal prosecutions, that being a right of citizens and an important right where those normally responsible for the initiation are not prepared to act. To allow the wider tort of abuse of process to apply where the stringent requirements of malicious prosecution cannot be satisfied would be to defeat that concern. It is difficult to see any reason why there should be any overlapping and in any event when the authorities are considered, I know of none where the initiation of prosecution situation has been brought within the tort of abuse of process. That in my view a tort which has developed to cover situations other than at least the initiation of wrongful prosecution.”

33. In Cunningham v Clarke (Supra), Gallen J went on to consider United States authorities cited to him by counsel in those proceedings by way of supplementary submissions. He stated at p.45:

“Assuming those authorities are persuasive in this country, what they establish is that the two torts are distinguishable in terms of initiation. I think it follows that if the process initiated is criminal in nature, its initiation if it leads to a right of action at all can only do so by way of allegations of malicious prosecution. A right of action for abuse of process may lie in respect of a criminal prosecution if it can be shown that subsequent to its initiation the prosecution was used for some improper purpose.” (emphasis added)

34. More recently in Crawford Adjusters & Ors v Sagicor General Insurance (Cayman) Ltd & Anor (Cayman Islands) [2013] 4 All ER 8, the Privy Council considered the tort of abuse of process and stated:

“149. Abuse of process emerged as a tort considerably later than malicious

prosecution and differs from it in significant respects. It applies to the initiation

or conduct of civil proceedings. It is not necessary to prove malice. It is not

necessary to show that the proceedings have gone to judgment. It is not even

necessary to show that they were baseless, although in practice they often will

be. The essence of the tort is the abuse of civil proceedings for a predominant

purpose other than that for which they were designed. This means for the

purpose of obtaining some wholly extraneous benefit other than the relief

sought and not reasonably flowing from or connected with the relief sought.

The paradigm case is the use of the processes of the court as a tool of extortion,

by putting pressure on the defendant to do something wholly unconnected with

the relief, which he has no obligation to do. Such cases are extremely rare.

Although there is a moderately substantial body of case-law, there are only two

reported cases in England in which the action has succeeded, both involving

the now obsolete procedures for the arrest of debtors, which had an obvious

potential for abuse. No case has succeeded in England since 1860, although

Australian litigants appear to have been both more persistent and more

successful. Like the tort of malicious prosecution as it was conceived to be

before this case, abuse of process is on the verge of extinction, the only recent

sightings being in Australia.” (emphasis added)

35. The only reported judgment touching on the tort of malicious arrest in Samoa is the judgment of His Honour Sapolu in Development Bank of Western Samoa v Eliu [1993] WSSC 29 where he stated:

“To succeed in malicious arrest, the person alleging malicious arrest must prove that the person he is suing had both maliciously and without reasonable and probable cause procured and brought about his arrest. In other words three matters must be proved. Firstly, there must be an arrest; secondly, the arrest must be malicious; and thirdly, there was no reasonable and probable cause for the arrest: see Roy v Prior [1970] 2 All ER 729 and the authorities cited in Todd, Burrows, Chambers, Hulgan and Vennell Law of Torts in New Zealand at p.781.”

36. That claim before the Supreme Court in Development Bank of Western Samoa v Eliu as stated by Sapolu CJ “arose out of an application to the Court by the Bank for a writ to arrest the defendant who was about to leave the country and thereby evade payment of the outstanding balance of his loans with the Bank. So the tort of malicious prosecution is not in issue in this case.”
37. The authorities show that a legal process in the tort of abuse of process is the abuse of a Court process for some improper purpose (See also: Leerdam & Anor v Noori & Ors [2009] NSWCA 90 (1 May 2009)). The abuse of an arrest process that may be captured by this cause of action for an abuse of process is that of an arrest of a debtor for example through the processes of the Court (see also: Varawa v Howard Smith & Co Ltd [1910] HCA 11). That is not the case in this instance. In this case, the Plaintiff says that the process abused was the arrest process and one not issued out of the Court on the pleadings pleaded. Even if the tort of abuse of process extended to include a criminal prosecution, which I do not need to determine and which Gallen J had reservations, the more persuasive authorities would suggest it does not. On the US authorities, it would only apply if after the initiation of the prosecution, it was used for some improper purpose. The Plaintiff does not plead abuse of process in terms of a Court process.
38. The cause of action for abuse of process is frivolous and vexatious and cannot possibly succeed. It cannot in my view be cured by amendment. Accordingly, this cause of action will be struck out.

Cause of Action 3 – Unlawful Arrest and Detention:

39. The Defendant applies to strike out the Plaintiff’s third cause of action on the basis that it is not maintainable at law. The Defendant submits that (a) the Plaintiff has failed to plead ‘the correct process’; and (b) Police have powers of arrest as provided for under the Criminal Procedure Act 2016.
40. The Plaintiff however contends that his arrest and detention was unlawful as it breached the Plaintiff’s Constitutional rights contained in article 6 and the Police Constables exercise of their powers of arrest and detention under the Criminal Procedure Act 2016 and the Police Powers Act 2007.
41. In my respectful view, this cause of action cannot be said to be frivolous, vexatious or an abuse of process. The Plaintiff’s factual pleadings clearly plead that the Plaintiff’s vehicle lost steering control and due to the loss of steering control, mounted the footpath and remained stationary on the footpath. The Plaintiff pleads he broke no law and his arrest and detention in Police custody was not lawful.
42. In his affidavit filed in support of the strike out motion, Constable Ese Vaalele states at paragraph 10 that “when Alofitai came towards where Constable Iosefa and I were standing I noticed that he was not walking straight and appeared to be heavily intoxicated.” He went further and stated at paragraphs 12 and 13 that the Plaintiff resisted the Police officers.
43. These are conflicts of the facts. These appropriately are matters for trial and for the trial judge to determine after the benefit of hearing the evidence.
44. I accept however that the Plaintiff has failed to properly particularize how he alleges the Defendant has not lawfully exercised powers of arrest and detention, for example, whether it is alleged that in exercise of the powers of arrest under section 29 of the CPA, Police did not have good cause to suspect that the Plaintiff had committed an offence. Leave is accordingly granted for the Plaintiff to properly particularize the cause of action against the Defendant.
45. Counsel may find the judgment of the New Zealand Court of Appeal in Neilsen v Attorney General 3 NZLR 433 dealing with arrests without warrant helpful.

Cause of Action 4 - Negligence:

46. The Defendant seeks to strike out the fourth cause of action on the grounds that it is frivolous, vexatious and an abuse of process. In the Defendant’s written submissions, the Defendant says that the pleadings cannot maintain a negligence claim against the Defendant and the pleadings are ‘bald statements’.
47. The elements of the tort of negligence as set out by the Sapolu CJ in Su’a v Attorney General [2013] WSSC 1 were summarised as follows:

“57. As pointed out in Matautia v Schuster [1993] WSSC 15, cited on behalf of the Attorney General, the tort of negligence consists of four elements which must be proved by the plaintiff. These are: (a) the defendant owed a legal duty of care to the plaintiff, (b) the defendant acted in breach of that duty, (c) the plaintiff suffered damage as a consequence of that breach, and (d) the damage suffered by the plaintiff was not too remote but a sufficiently proximate consequence of the defendant’s breach of duty. Sometimes, negligence is formulated as consisting of three elements that need to be proved. These three elements as set out in the text Jackson and Powell on Professional Liability (2007) 6th ed, pp 13-14, also cited by counsel for the Attorney General, are as follows:

“(1) The defendant owes a duty of care to the plaintiff. The essential questions to be considered in every case are whether a duty existed, and, if so, what was its scope;

“(2) The defendant has acted in such a way as to break that duty of care. Once the existence and scope of the duty of care have been established, the question of breach turns upon whether the defendant exercised the requisite degree of skill and care in the performance of his tortious duty; and

“(3) The plaintiff has suffered relevant damage as a consequence of the breach. The third condition is satisfied if the plaintiff suffers damage within the scope of the defendant’s duty. Thus if the defendant’s duty is only to protect the plaintiff against personal injury or physical damage, then that kind of damage (rather than pure economic loss) must be inflicted, in order to complete the tort of negligence. Accordingly, the questions of duty and damage (the first and third conditions) are inter-related. In determining whether the defendant owed any relevant duty to the plaintiff, it is necessary to characterize the damage flowing from the breach of such duty. Once damage of the requisite character has been established, the subsequent inquiry is directed to quantum”.

48. In these proceedings, the Plaintiff alleges that:
    • (a) the duty of care owed by the Plaintiff was to (i) ensure investigations are properly done; and (ii) ensure detention is reasonable in the circumstances and/or necessary before the Plaintiff’s freedom is removed; (iii) protect the life, health and property of the Plaintiff when arrested;
    • (b) the duty was breached (i) when the Plaintiff was arrested; (ii) placed into custody overnight; and (iii) assaulted when in Police custody; and
    • (c) damage was suffered by the Plaintiff.
49. I accept that the claim in negligence is not particularly well pleaded and is confusing. It does however plead in general terms alleged facts that may satisfy the elements of the tort of negligence. I have accordingly decided not to strike out the fourth cause of action but to grant leave to the Plaintiff to amend the claim to show with sufficient particularity the scope of the alleged duties of care pleaded and the facts that support those pleadings.

Cause of Action 5 – Breach of Statutory Duty:

50. The Defendant seeks to strike out the fifth cause of action for breach of statutory duty. The Plaintiff pleads at paragraph 53 of the Statement of Claim that in arresting the Plaintiff:

“The defendant through its Police officers in arresting the plaintiff breached it’s statutory duty in deciding to exercise their discretion to arrest the plaintiff and placing the plaintiff in custody overnight. Particulars:

(a) The arrest and detaining in custody was without good cause;
(b) The arrest and detaining was unreasonable;
(c) The arrest and detaining in custody was unlawful.”

51. The Plaintiff further pleads at paragraph 54 that “the defendant through its police officers in assaulting and damaging property belonging to the plaintiff breached its statutory duty to protect property, health and life of members of the public.”
52. The Defendant seeks this cause of action to be struck out on the basis that the Plaintiff does not specify what statute has been breached and/or how it gives rise to a maintainable cause of action.
53. The Plaintiff identifies the statutory duty allegedly breached as:

“The statutory duty breached is that the Police did not have good cause to suspect that that there was any crime committed and yet arrested the Plaintiff anyway.”

54. Section 29(3)(a) of the Criminal Procedure Act 2015 (“CPA”) states:

“(3) A constable, and any other person whom the constable calls for assistance, may arrest and take into custody without a warrant:

(a) a person ... whom the constable has good cause to suspect of having committed, an offence punishable by imprisonment for 3 months or more;” (emphasis added)”

55. At paragraph 4(e)(ii) of the Plaintiff’s submissions, the Plaintiff further adds that liability arises in tort by virtue of section 6(1) of the Government Proceedings Act 1974 which provides:

“6. Liability of the Government in tort – (1) Subject to this Act and any other Act, the Government is subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:

(a) in respect of torts committed by its servants or agents;...” (emphasis added)


56. In The Laws of New Zealand (online looseleaf edn, Lexis Nexis): Breach of Statutory Duty at [87], the learned authors set out the elements that a Plaintiff must establish as follows:

“In order to succeed in proceedings for damages for breach of statutory duty the plaintiff must establish the following elements: first, a breach of a statutory duty; second, a legislative intention that breach of the obligation should be a ground of civil liability in relation to a class of persons to which the plaintiff belongs; third, injury or damage of a kind for which the law awards damages and against which the statute was designed to give protection; and fourth, a causal nexus between the breach of obligation and the injury or damage.”

57. In Hotel Millenia v Attorney General [2015] WSSC 49 (8 January 2015), Sapolu CJ similarly stated:

“33. One of the three causes of action pleaded in the plaintiff’s amended statement of claim is that of breach of statutory duty against the Minister who is the Minister of the MNRE and the chairperson of the Board which is a member of the PUMA...



34. In footnote 40, at 6.2 (b), p.115, of Liability of the Crown (2000) 3rd ed, the learned authors state:
    

“If the statute imposes a duty, but is silent about liability for breach in Canada (following the prevailing American theory) any civil liability will depend upon the common law of negligence: The Queen v Saskatchewan Wheat Pool [1983] 1 SCR 205. Outside Canada and the United States, Courts will occasionally infer a civil right of action from the statute itself, despite its silence. See Fleming, The Law of Torts (1998) 9th ed, ch 19:”.



35. At 6.2 (d), p.131 of Liability of the Crown (2000) 3rd ed, the learned authors go on to say:
    

“The third head of direct liability in the standard Crown proceedings statutes is for breach of sory duty. A statute tute may confer a private right of action on a person injured through a breach of a duty imposed b stae statute. Such y would bind the Crown only if the statute binds the Crown.rown. In most jurisdictions, that means that the statute must make clear bress words or necessary implication that it does bind the Cthe Crown. In those cases where the statute does bind the Crown, and confers a private right of action of a duty imposed by the statute, it is self-evident that the Crown must be liable in damages to a plaintiff who has been injured by a failure to perform the duty. The Crown’s liability would be derived from the statute imposing the duty. No provision in the Crown proceedings legislation would be necessary to make the Crown liable. The point is important because, as has been explained, the federal Crown Liability and Proceedings Act, in imposing liability in tort on the Crown, omits any reference to breach of statutory duty. This omission would not immunise the federal Crown from liability for breach of stay duty, because a plaintlaintiff would not need to rely on the Crown liability and Proceedings Act as the source of the Crown’s liability”(emphasis added)



36. Section 6 of our Government Proceedings Act 1974 which provides for the liability of Government in tort, provides, as far as relevant:
    

“(1) Subject to the provisions of this Act and any other Act, the Government shall be subject to all those liabilities in tort to which if it were a private person of full age and capacity, it would be subject –
(a) In respect of torts committed by its servant or agents”.

58. In Thompson v Attorney General [2014] NZHC 2333 (upheld on appeal), MacKenzie J also addressed actions for breach of statutory duty and stated:

“[32] The second cause of action is for breach of statutory duty, specifically a failure to update Court records in breach of the statutory duty under s 13 of tstricrts Act 1947 to47 to keep Court records. The leading authorities on actions for damageamages for breach of statutory duty are thisions of the House of Lords In X (Minors) v Bedfordshire County Council, and of the Court ourt of Appeal in Minister of Fisheries v Pranfield Holdings Ltd. The approach to be taken in such cases is described by Lord Browne-Wilkinson as follows:

...

The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority’s performance or non-performance of that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action ...

Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (ie irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; and (D) misfeasance in public office, ie the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.”

59. In Twin Bright Shipping Co SA v Tauwhareparae Farms Ltd (Unreported New Zealand Judgments) BC200660818 26 May 2006, Williams J also addressed whether a claim for breach of statutory duty conferred on a person a personal damages action arising from the breach where he stated:

“[72] However, M0;Tayaor was on f on firmer ground in relying on Rowan v Attorney- General [1997] 2 NZLR 559 , 570 where Smellie J held :

To eucceed on such a cause of action the plaintiff must not only establish that the statute imposes a mandatory duty, but also thats of the kind which is enforceable by a personal damages action. Furthermore, the plaintiffntiff must show that he or she has suffered the kind of loss or “mischief” which the statute was intended to prevent.

A consideration of the authorities shows that a statutory duty will be enforceable by personal action if:

(i)It is for the benefit of a limited class of person; and

(ii)Parliament intended to confer a right of action on members of that class.”

60. The CPA deals with protection from liability. Relevantly, section 36 of the CPA states:

“36. Protection from responsibility - (1) A person is not criminally or civilly liable who, pursuant to this Act or any other enactment:

(a) arrests another person whether with or without a warrant, or executes any search warrant; or

...
(3) The protection from criminal and civil liability under subsection (1) applies to the use by the person of any force as may be necessary to overcome any force used in resisting arrest, search or execution, unless the arrest, search or execution could have been made by reasonable means in a less violent manner.
(4) Except for a constable or person called upon by a constable to assist the constable, this section does not apply if the force used is intended or likely to cause death or grievous bodily harm.”

61. Neither counsel turned their minds to section 36(1) and 36(3) of the CPA in their submissions. Accordingly, I did not have the benefit of submission from counsel as to how section 36 applies to this claim.
62. I accept that the Plaintiff’s pleadings are inadequate and do not expressly set out the basis of this claim in light of the elements for a claim for breach of statutory duty to be maintainable. The Plaintiff furthermore appears to plead two separate alleged breaches of statutory duty, the first being that in relation to the alleged arrest and the second being an alleged statutory duty to “protect property, health and life of members of the public” derived, it would seem, from section 5 of the PSA. If there are two separate statutory duties allegedly breached by the Plaintiff, each must be pleaded separately.
63. While the pleadings are inadequate, I have determined to grant the Plaintiff an opportunity to amend the pleadings as these may be cured by amendment. The Plaintiff is therefore granted leave to:
    • (a) Expressly plead the statute allegedly creating the statutory duty;
    • (b) The alleged scope of such duty;
    • (c) How the Defendant is alleged to have breached the statutory duty; and
    • (d) The damage alleged to have been suffered by the Plaintiff as a result of the alleged breach.

Sixth Cause of Action – Breach of Constitutional Rights:

64. The sixth cause of action pleads that the Defendant through its police officers in arresting and detaining the Plaintiff unlawfully and unreasonably and/or without good cause was in breach of the plaintiff’s right to personal liberty guaranteed by article 6 of the Constitution. The Plaintiff further pleads that by the Defendant through its officers assaulting and keeping the Plaintiff in custody overnight whilst the Plaintiff was injured and bleeding without attending to medical care was in breach of the Plaintiff’s right to be free from inhumane treatment.
65. The Defendant seeks to strike out the sixth cause of action on the grounds that “the plaintiff’s right of relief for a breach of a right under the Constitution is stated in the Constitution and cannot be maintained in a claim for damages and therefore is an abuse of process.”
66. In response, counsel for the Plaintiff has referred the Court to the judgment of the Court of Appeal in Punitia v Tutuila [2014] WSCA 1 where the Court of appeal awarded damages for breach of a Constitutional right stating:

“[44] Ms Papalii submitted that even if there had been a breach of rights conferred by the Constitution there could be no no liability to pay damages unless the appellants had also committed a tort against the Respondents.

[45] Again, this contention was directly refuted in Taamale and Mauga. Those decisions make it clear that in Samoa, as in equivalent jurisdictions, breach of the fundamental rights and freedoms conferred by the Constitution on itself can give rise to liability for damages in appropriate circumstances. In Samoa, the power to impose damages flows from article 4...”

67. This ground of the defendant’s strike out motion is without basis.
68. The Defendant has withdrawn paragraph 4 of the Notice of Motion to Strike Out, that is, notice pursuant to section 21 of the Limitations Act 1975 was defective. I therefore do not need to consider that ground.
69. In terms of paragraph 5 of the grounds for strike out, that is that the Plaintiff failed to serve the defendants 28 days prior to the first mention contrary to section 11 of the GPA, section 11 states:

“11. Service of documents and time for filing defence by the Government – (1)
In any civil proceedings instituted against the Attorney-General, or to
which the Attorney-General is joined as a party or third party, as
aforesaid, all documents required to be served on him or her are to be
served by delivering it to the Attorney General at his or her office.

(2) In any civil proceedings against the Government under this Act the time to be allowed in any writ or summons for the filing of a statement of defence or notice of intention to defend is to be not less than 28 days, or such further time as the Court may allow.”

70. Section 11(2) deals with the time for the Government to file a Statement of Defence and is not concerned with the period of time for serving a Statement of Claim before first mention. There is no basis to this ground of the strike out motion.

Concluding Remarks:

71. The causes of action pleaded by the Plaintiff involve complex areas of the law. There is a tendency for counsel in proceedings before the Courts to undervalue the importance of pleadings and too often, insufficient time is taken by counsel in preparing pleadings. As the Honourable Chief Justice stated in Su’a v Attorney General [2013] WSSC 1:

“In civil proceedings, the legal burden of proof ordinarily lies on the Plaintiff that brings the proceedings. This requires the Plaintiff to plead with sufficient particularity in his statement of claim the elements of his cause of action and the facts which are essential to prove his cause of action.”

72. It requires counsel to understand the elements of each cause of action and the facts which then are essential to prove that cause of action. In Price Waterhouse v Fortex Group Ltd CA179/98 30 November 1998 McGechan;J ex;J expressed concern at p 1this way at the propensitynsity:

“... in some quarters to regard the pleadings as being of little importance. There was an echo of tharoachhe implicit suggesuggestion floated in this case that exchaexchange of briefs-of-evidence before trial might be seen as curing any lack of particularity in the pleadings. Any such view is misguided. Pleadings which are properly drawn and particularised are, in a case of any complexity, if not all cases, an essential road map for the Court and the parties. They are the documents against which the briefs-of-evidence are or should be prepared. They are the documents which establish the parameters of the case, not the briefs-of-evidence.”

73. It is important that counsel take the time to properly consider and draft pleadings. It saves time and cost of these applications for both counsel and the Court. Plaintiff’s counsel should bear this in mind to avoid any further application to strike out if the amendments made do not cure the inadequacies in its pleadings.

Result:

74. For the foregoing reasons:
    • (iv) the second cause of action is struck out;
    • (v) leave is granted to the Plaintiff to amend the Statement of Claim in respect of the first, third, fourth and fifth causes of action as set out in my judgment; and
    • (vi) leave is granted to plead vicarious liability.
75. The Plaintiff is ordered to file and serve his amended Statement of Claim within 14 days.
76. This matter will be re-mentioned on Monday21 May 2018 at 2.00pm.
77. Costs reserved.

JUSTICE CLARKE

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