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Siliato v Board of Trustees of the Methodist Church of Samoa [2004] WSSC 2 (4 February 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

SARASOPA SILIATO
of Asaga, Savaii, Unemployed.
Plaintiff

AND

THE BOARD OF TRUSTEES OF THE METHODIST CHURCH OF SAMOA
a Charitable Trust having its registered office at Matafele, Apia.
First Defendant

AND

THE ATTORNEY GENERAL
sued for and on behalf of the Department of Education.
Second Defendant

AND

JUNIOR TANIELU MUAVAO
First Third Party

AND

TAAMILO TOLEAFOA
of Fasitoo-uta and Mulifanua, Bus Driver.
Second Third Party

AND

TNN TOLEAFOA COMPANY LIMITED
Third Third Party

Counsel: A Roma for plaintiff
AF Pasikala-Faasau and M Hunter-Betham for second defendant
Counsel for other parties took no part in these proceedings

Hearing: 4 February 2004
Judgment: 4 February 2004

JUDGMENT OF SAPOLU CJ

By a judgment delivered on 20 October 2003, I dealt with a motion filed by counsel for the plaintiff to strike out an amended statement of defence by the second defendant. The first defendant and the first, second and third third parties were represented by their respective counsel who did not find it necessary to take any active part as the contest was really one between the plaintiff and the second defendant. I decided in the said judgment not to strike out the amended statement of defence by the second defendant but ordered the second defendant to file the appropriate application seeking leave to amend its statement of defence. As no leave had previously been granted at that stage to the second defendant to amend its statement of defence, it follows that, strictly speaking, there was no amended statement of defence that was validly before the Court to be struck out. In a sense, the strike-out motion was premature. Perhaps the appropriate application that should have been made was one seeking an order to stay proceedings on the proposed amended statement of defence until the second defendant had filed the necessary application for leave to amend within a specified time, failing which, the second defendant would be debarred from proceeding on its proposed amended statement of defence, unless the failure can be excused on some valid ground. If the appropriate application for leave to amend is made within the specified time then the plaintiff, if he opposes leave, would ask the Court to set the application down for hearing. The parties will then be heard on the application.

Since my judgment of 20 October 2003, the second defendant has filed the appropriate application for leave to amend its statement of defence which is opposed by the plaintiff. This judgment relates to the hearing of that application. I need not go into the details of the history of the application again. It is already set out in my judgment of 20 December 2003. Essentially, the second defendant, the Department of Education, hired a flatbed truck owned by the first defendant, the Board of Trustees of the Methodist Church of Samoa, for the transportation of some of its employees, including the plaintiff, during the performance of their duties. Without knowing all the facts, this would appear to be a bailment; the plaintiff being the bailor of the truck and the second defendant being the bailee. The hire of the truck would be the bailment. Unfortunately, on 5 February 2001, whilst the truck was transporting the plaintiff and some of his co-workers to do their work, it became involved in an accident on the road at Faleolo. As a result of the accident, the plaintiff sustained a serious spinal injury which has made him completely paralysed in the legs. At the material time, the truck was being driven by a driver of the first defendant. The plaintiff has brought an action in negligence for personal injuries claiming damages against the first defendant and the second defendant. It is alleged against the first defendant that the accident was caused by the negligent manner in which the truck was driven by its driver. As against the second defendant, it is alleged that the accident was further caused by the failure of the second defendant to provide a proper and safe truck for the transportation of its employees. It would appear that the two defendants are being sued in negligence as concurrent tortfeasors on the basis that their respective breaches of duties of care owed to the plaintiff were concurrently responsible for the plaintiff's injury.

In the statement of defence that was filed by the second defendant, it admits that it failed to provide a proper and safe vehicle to convey the plaintiff but denies that it was that failure which caused the accidents. The second defendant in other parts of its statement of claim alleges that the accident was caused either wholly or in part by the negligence of the first defendant's driver, or wholly or in part by the negligence of the second third party. So in effect, the second defendant is denying any negligence on its part. I say this because for negligence to be actionable as a tort, three elements must be present: (a) a duty of care owed by the defendant to the plaintiff, (b) a breach of that duty by the defendant, and (c) loss to the plaintiff as a result of that breach. The loss of course must not be too remote. All these elements must co-exist before a defendant can be held liable in negligence. What the second defendant has in effect done is to admit both the first element, that is, it owed a duty of care to the plaintiff, and the second element, that is, that it had been in breach of that duty of care. It, however, denies the third element that its breach of duty of care was the cause of the plaintiff's injury. By denying the third element, the second defendant is in effect denying liability in negligence to the plaintiff. To put it another way, the second defendant is denying any actionable negligence against itself because negligence is not actionable unless all of the said three elements co-exist. So there is no admission of liability in the statement of defence which leaves only the question of quantum of damages to be argued between the parties. Liability on the part of the second defendant is therefore a live issue under the statement of defence.

At the preliminary hearing on 24 June 2002 of a motion for joinder of new parties, counsel who was appearing on that occasion for the second defendant told the Court that the second defendant admits failing to provide a safe and proper vehicle to convey the plaintiff as pleaded in its statement of defence. This is really a repetition to the Court of the admission already pleaded in the second defendant's statement of defence which was filed on 5 April 2002. To my mind, this was not an admission of liability in negligence on behalf of the second defendant for the reasons already given. It is not necessary to repeat all the events which followed after 24 June 2002. On 8 June 2003 then senior counsel for the second defendant advised counsel for the plaintiff of the second defendant's desire to amend its statement of defence to deny the admission that it had failed to provide a proper and safe vehicle to convey the plaintiff. The substantive hearing was to commence the following day, that is, 9 June. However due to no fault of any of the parties the hearing was vacated. Counsel for the second defendant filed an amended statement of defence the same day. Perhaps due to oversight, a copy of the amended statement of defence was not served on counsel for the plaintiff until 10 September 2003. The proposed amendment as pleaded states that it was the first defendant which failed to provide a proper and safe vehicle to convey the plaintiff. It was that amendment which the plaintiff moved to strike out and was the subject of my judgment of 20 October 2003. Since that judgment, the second defendant has reworded its proposed amendment, so that it now simply denies everything.

Counsel for both the plaintiff and the second defendant have made helpful submissions and I am grateful to them. Counsel for the second defendant also provided a very helpful citation of authorities. It will be unwise to attempt to provide a list of all the factors that a Court ought to take into consideration in determining whether to grant leave to amend a pleading in a statement of claim or defence. The guiding principle has been to grant leave to amend pleadings if the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties, unless that will result in an injustice to the other party which cannot be justly compensated by an award of costs. If any injustice which will flow from the amendment can be justly compensated by an award of costs, then the amendment will be allowed with costs awarded to the other party. If the injustice cannot be cured by costs, then leave to amend will be refused: see for example, Sundar v Prasad [1998] FJCA 19; G L Banker Ltd v Medway & Supplies Ltd [1958] 3 A11 ER 540 per Jenkins LJ. In applying that principle to this case, it will be necessary to consider: (a) whether the proposed amendment is necessary to determine the real question in controversy between the plaintiff and the second defendant; (b) whether an injustice will result to the plaintiff if leave to amend the statement of defence is granted to the second defendant; and (c) if there will be an injustice, whether that injustice can be justly compensated with an award of costs. I am aware that applications for leave to amend pleadings are not often expressly approached in this way. But those considerations are ever present when dealing with applications to amend pleadings in a claim or defence.

On the first question whether the amendment the second defendant seeks to make to its statement of defence is necessary to determine the real questions in controversy between the parties, the plaintiff's cause of action against the second defendant is in negligence. One of the elements that is essential to that cause of action is that the second defendant as employer must have breached its duty of care to the plaintiff as its employee. The plaintiff claims that the second defendant has committed a breach of that duty by its failure to provide a proper and safe vehicle to convey him during the course of his employment. In its statement of defence the second defendant admits to the alleged breach. Subsequently, its legal advisers wanted to retract that admission and enter a denial. In essence it is said that the admission was a mistake as it is now realised that the second defendant should have denied that it failed to provide a proper and safe vehicle for the plaintiff's transportation. The controversy has therefore extended from a mere denial that the alleged breach of duty of care on the part of the second defendant caused the injury to the plaintiff, to a denial of breach of duty. So, as far as the second defendant is concerned, there is now a controversy on the issue of whether there was a breach of duty of care and one of its senior lawyers on 8 June 2003 had told counsel for the plaintiff that the second defendant wanted to amend its statement of defence. Counsel for the plaintiff opposes leave to amend and submits that the second defendant should not be allowed to retract its admission of breach of duty in its statement of defence. Despite the persuasive submissions I have heard from counsel for the plaintiff, I am of the respectful view that to refuse leave to amend, will be tantamount to closing the door to the second defendant on a crucial issue which it now disputes. The Court will always be very cautious before it deprives a party of the opportunity to be heard on an issue the party disputes, particularly if it is an issue that is central to the question of liability. Counsel for the second defendant told the Court that the admission in the statement of defence was a mistake and there is no ground to show that the mistake was other than genuine. Negligence is at the heart of the controversy between the parties and an alleged breach of duty of care goes to the heart of negligence. It is an issue which is now disputed by the second defendant and, in my opinion, it should be properly investigated at the trial. On that basis, it is necessary to allow the amendment so that the Court can determine the real questions of controversy between the parties.

As to the second question whether there will be an injustice to the plaintiff if leave is granted to amend the statement of defence, counsel for the second defendant submits that if there is any consequential prejudice to the plaintiff, it will be that the plaintiff will now be required to prove that the second defendant was in breach of its duty of care by allegedly failing to provide a proper and safe vehicle to convey the plaintiff. In other words, if the amendment is allowed, the task of the plaintiff in proving its cause of action against the second defendant will be more onerous. On the other hand, the injustice to the second defendant if it is not allowed to amend its defence must also be considered. Counsel for the second defendant also referred to several English cases. I need only refer to two of them. The first is Cropper v Smith (1884) 26 Ch D at pp710-711 where Bowen LJ said:

"I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without prejudice....."

The second case referred to by counsel for the second defendant is Tildesley v Harper [1878] UKLawRpCh 284; [1878] 10 Ch. D. 393, 396 – 397 where Bramwell LJ said:

"In my opinion the defendant ought to have been allowed to amend his statement of defence. I have had much to do in chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise".

In my view, the plaintiff has to some extent been prejudiced by the amendment sought by the second defendant. When one of the senior counsel for the second defendant advised counsel for the plaintiff on 8 June 2003 that the second defendant wanted to amend its statement of defence, the hearing of this case was already set to commence on 9 June 2003. Even though that hearing was vacated due to no fault of counsel or the parties, the plaintiff must have already prepared his case to proceed on the basis of the statement of defence and the advice given to the Court on 23 July 2002 by counsel for the second defendant that the second defendant admits to not providing a proper and safe vehicle to convey the plaintiff. When the second defendant subsequently filed its amended statement of defence, the plaintiff moved to strike it out. One of the grounds of the motion was that the second defendant had not sought or obtained leave to amend. Even though there was at that time no amended statement of defence validly before the Court to be struck out, the ground just mentioned is factually correct because no leave to amend had actually been sought. In my view the plaintiff has been prejudiced to some extent. As I also understand senior counsel for the second defendant in the present proceedings, she does not strongly oppose an award of costs to the plaintiff if leave to amend the statement of defence is granted. The next question then is whether the prejudice to the plaintiff can be justly compensated with costs. I am of the clear view that it is.

Accordingly, leave is granted to the second defendant to amend its statement of defence to deny the allegation by the plaintiff that the second defendant failed to provide a proper and safe vehicle to convey the plaintiff. Whether the evidence will sustain such a denial is a matter to be determined at the trial. This matter is adjourned to 5 February for counsel to be heard on the quantum of costs to be awarded to the plaintiff.

CHIEF JUSTICE

Solicitors:
AT Roma for plaintiff
Attorney General's Office for second defendant