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Sua v Attorney General [2013] WSSC 1 (15 January 2013)

SUPREME COURT OF SAMOA

Sua v Attorney General [2013] WSSC 1

Case name: Sua v Attorney General

Citation: [2013] WSSC 1

Decision date: 15 January 2013

Parties:
SU’A MAIAVA MUALIA SALAMO of Lepea, suing as next of kin of Apiuta Salamo (deceased) Plaintiff and ATTORNEY GENERAL sued for and on behalf of the National Health Service.Defendant

Hearing date(s): 11 December 2012

File number(s):

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu FM Sapolu –

On appeal from:

Order:

Representation:
T R S Toailoa for plaintiff
M T Lui and S Lafaialii-Koria for defendant

Catchwords:

Words and phrases:
actio personalis moritur cum persona

volenti non fit injuria

Legislation cited:
National Health Service Act 2006
Fatal Accidents Act 1974 (the FA Act),
Law Reform Act 1964 (the LR Act).
Bullen & Leake & Jacobs Precedents of Pleadings (2004) 15^th ed
Winfield and Jolowicz on Tort (1994) 14th ed
Salmond & Heuston on The Law of Torts (1992) 22nd ed
Administration of Justice Act 1982
Fatal Accidents Act 1976 (UK)
Vacher & Sons Ltd v London Society of Compositors [1913] AC 107
Re Boaler [1915] 1 KB 21 at p.27.
The Law of Torts (supra)
The Law of Torts (1992) 8th ed
Law of Torts in New Zealand (1997) 2nd ed
Law Reform (Miscellaneous Provisions) Act 1944 (NSW),
J D v East Berkshire Community Health NHS Trust & Ors [2005] UKHL 23
Statutory Interpretation in Australia (1981) 2nd ed
Access to Justice (1995),
Cross on Evidence (1996) 5th Aust ed

Cases cited:
Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R.1033
Nonu v Electric Power Corporation [1997] WSSC 20.

Woolworths Ltd v Crotty [1942] HCA 35
Rose v Ford [1937] AC 826,
Admiralty Commissioners v S.S. Amerika [1917] AC 38]
Benham v Gambling [1941] AC 157,
Pickett v British Rail engineering Ltd [1980] AC 136.
Gammell v Wilson [1982] AC 27
Fitch v Hyde-Cates [1982] HCA 11; [1982] 150 CLR 482.
Kenny v Dunedin City Corporation [1920] NZGazLawRp 160; [1920] NZLR 513;
Goldstine v R [1947] NZLR 588 (CA)”.
Currie v Dempsey [1967] 2 NSWR 532
Gregg v Scott [2005] UKHL 2
Dare v Pulham (1982) 148 CLR 658
Alii and Faipule of Satapuala v Samoa Trusts Estates Corporation [2012] WSSC 24
Barclays Bank v Boulter [1999] 4 A11 ER 513
Cannane v J Cannane Pty Ltd (In Liquidation) (1998) 192 CLR 5

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE:

BETWEEN

SU’A MAIAVA MUALIA SALAMO of Lepea, suing as next of kin of Apiuta Salamo (deceased)

Plaintiff

AND:

ATTORNEY GENERAL sued for and on behalf of the National Health Service.

Defendant

Counsel:

T R S Toailoa for plaintiff

M T Lui and S Lafaialii-Koria for defendant

Hearing: 11 December 2012

Judgment: 15 January 2013

JUDGMENT BY SAPOLU CJ

1. These proceedings are concerned with a motion by the Attorney General, sued as defendant on behalf of the National Health Service (NHS) which is a body established under the National Health Service Act 2006, to strike out the statement of claim filed by the plaintiff as next of kin of the deceased.

The plaintiff’s statement of claim

2. It is alleged by the plaintiff in his statement of claim that in 2011 the deceased was frequently brought and admitted to the Tupua Tamasese Meaole (TTM) Hospital for medical treatment as he was suffering from diabetes and/or high blood pressure. On each of these occasions, the deceased was discharged by the health authorities as his condition became stabilised. However, after a few days the deceased’s condition would again deteriorate so that he had to be re-admitted to the Hospital. This situation, according to the plaintiff, continued for quite some time. When enquiries were made by the deceased’s family with the medical officers as to the cause of the deceased’s condition deteriorating, they were informed that it had to do with his diabetes and/or high blood pressure. It was not until much later in 2011 when the deceased’s condition became really bad that his family were informed that his kidneys have failed and he should have been put on dialysis much earlier.
3. It is then alleged in the statement of claim that he NHS and its servants or agents who were involved in the care and treatment of the deceased were, all or one or more, negligent in failing to exercise reasonable care and skill in the diagnosis, treatment, and care of the deceased resulting in his death on 14 January 2012. Particulars of the alleged negligence, which appear to be particulars of a breach of a duty care, are then provided.
4. Allegations in support of the claim for damages then follow. It is alleged that as a result of the deceased’s premature death, his dependants have suffered loss and damage because at the time of his death he was operating a shop with his brother and that earnings from the shop were used to support the deceased’s family including his father and son. It is then further claimed that had it not been for the negligence of the medical officers, the deceased would have lived on for at least another 20 years and would have continued his support for his family through the shop he was operating with his brother. The total sum of $2,620,800 is then claimed for loss of income for 20 years.

The relevant legislations

5. Before I move on to the motion by the Attorney General, cited as defendant, to strike out the statement of claim, I would like to refer to the relevant legislations insofar as they relate to the present proceedings. As pointed out by counsel for the Attorney General in their submissions, these are the National Health Service Act 2006 (the NHS Act), the Fatal Accidents Act 1974 (the FA Act), and the Law Reform Act 1964 (the LR Act).

(a) National Health Service Act 2006 (NHS Act)

6. Section 4 of the NHS Act establishes the National Health Service (the NHS) for Samoa. Section 5 sets out the purpose of the NHS which is to assist the Government to meet the health care needs of Samoa through the development, provision and management of the health services, institutions and bodies listed in the Schedule to the Act. The institutions and bodies listed in the Schedule for which the NHS is responsible include the TTM Hospital where the deceased had been admitted and treated. Section 6 then sets out the functions and powers of the NHS and s.6(1)(a) states that one of the functions of the NHS is to provide, maintain and manage all health services, institutions and bodies listed in the Schedule.
7. Section 7 refers to the National Health Service Board of Management (the Board) which is vested with the control, management and direction of the NHS. Section 8 provides for the membership and procedures of the Board. Section 9 provides for the appointment of a general manager of the NHS who shall be responsible and accountable to the Board for the day to day control, management and direction of the NHS. Section 10 provides for the employment of other staff, consultants, or other persons to undertake any special task. Section 11 gives the Board further powers regarding the management and arrangement of health services and bodies listed in the Schedule. Section 12 empowers the Board and the general manager to delegate any of their functions and powers as the case may require.
8. Section 24 then provides for how civil proceedings can be brought by or against the NHS and gives protection from civil liability to any person who exercises any function under the Act in good faith.

(b) Fatal Accidents Act 1974 (FA Act)

9. The FA Act, often referred to in the relevant case law and the textbooks on the law of torts as Lord Campbell’s Act, and the common law rule known as the rule in Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R.1033 which it altered, were discussed by this Court in Nonu v Electric Power Corporation [1997] WSSC 20. In Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R. 1033, Lord Ellenborough stated the common law rule in these terms:

“[In] a civil Court, the death of a human being cannot be complained of as an injury.”

10. The rule in Baker v Bolton in relation to tort was explained in Woolworths Ltd v Crotty [1942] HCA 35 where Latham CJ said:

“The rule as stated by Lord Ellenborough was that ‘in a civil Court the death of a human being cannot be complained of as an injury’: Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R. 1033. Lord Atkin stated the rule in Rose v Ford [1937] AC 826, 833, in the following form: ‘The law did not recognise the death of a person as giving a claim for damages’. As Lord Atkin pointed out, this rule has no application to the death of a supposed plaintiff. In cases of tort the maxim actio personalis prevented his personal representatives from suing in such a case. The rule in Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R. 1033 applies to prevent an action by A against B for damages for the death of C, caused by the tortious act of B. In other words, the rule dealt (so far as the subject of tort is concerned) with the question of the right of a third party to recover compensation for loss incurred by him as the result of the death of a person killed by the defendant’s tortious act: see Pollock on Torts, 14^th ed.(1939), p.53.”

11. There are exceptions to the rule in Baker v Bolton in respect of torts where there is injury to proprietary rights, for instance, trespass, detinue, or ejectment: Woolworths Ltd v Crotty [1942] HCA 35 per Latham CJ. Apart from those exceptions, it is clear from the authorities that the effect of the rule in Baker v Bolton was that the dependants of a deceased person cannot sue for any tort alleged to have caused the death of the deceased. This is because the common law did not recognise the death of a person as an injury or giving rise to a right of action for damages in another person.
12. The enactment of the FA Act altered the rule in Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R.1033 by creating a new right of action for the dependants of a deceased person which enables them to claim for their loss of dependency. Thus, it is a statutory right of action. It is sometimes referred to as a dependency action or claim.
13. In terms of the FA Act, a dependency action or claim must be brought by the executor or administrator of the deceased person (s.5) for the benefit of the deceased’s specified dependants (s.4) where the death of the deceased was caused by any wrongful act, neglect or default, and the act, neglect or default was such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages against the person responsible for causing the death of the deceased (s.3). All dependency claims must be brought in one action and that must be done within 3 years after the death of the deceased (s.8). Any dependant who is omitted from a dependency claim may apply to be joined in the action. The dependants of a deceased person for whose benefit an action can be brought are limited to the wife, husband, parent and child (s.4).
14. Full particulars of each dependant in a dependency action and the nature of the claim must be delivered to the defendant (s.9). In practice, it should be sufficient for the purpose of s.9 if full particulars of each dependant is pleaded in the statement of claim. The kind of particulars that are required are: (a) the name and place of residence of each dependant, (b) the relationship of each dependant to the deceased, that is, whether wife, husband, parent, or child, (c) the date of birth of each dependant, and (d) the details of the nature of each dependency claim: see Bullen & Leake & Jacobs Precedents of Pleadings (2004) 15^th ed., vol 2, para 71-17.
15. The damages that can be claimed in a dependency claim must be based on the amount of pecuniary benefit or benefit reducible to money value which a dependant might reasonably have expected to derive if the death of the deceased had not occurred. This means the measure of damages for each dependency claim is “the loss of the dependency” or “the value of the dependency” as pointed out in McGregor on Damages (2003) 17th ed,, para 36-018. Damages can also be claimed for the reasonable medical and funeral expenses of the deceased if such expenses were incurred by a dependant for whose benefit the claim has been brought (s.11). The test here is one of reasonableness. It is also clear from ss.5 and 11that the FA Act allows only for pecuniary losses, that is, financial and material losses incurred by a dependant, and not for any non-pecuniary loss such as grief, sorrow, hurt feelings, pain and suffering and so on.
16. The effect of the FA Act may be summed up in the words of Latham CJ in Woolworths Ltd v Crotty [1942] HCA 35 where His Honour said:

“Lord Campbell’s Act deals only with cases of death, not with personal injuries not resulting in death, or with damages for such personal injury, such as pain and suffering, even where death resulted. It created an entirely new cause of action in the representatives of a deceased person. The action was for the benefit of specified dependants who had suffered pecuniary loss by his death, but who could not complain that the defendant had committed a tort against them, or that he had broken any contract with them. It was a condition of the right of action that the deceased would have had a right of action, if death had not ensued, to recover damages in respect of the wrongful act, neglect, or default which was the cause of the death. But the right of action given to his executors is quite distinct from any right of action that the deceased would have had. It is a purely statutory creation...”

17. Furthermore, in Rose v Ford [1937] AC 826, 839, Lord Russell of Killowen said:

“As I understand the doctrine [in Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R. 1033 as affirmed by this House in Admiralty Commissioners v S.S. Amerika [1917] AC 38], it is this, that at common law no one can maintain an action against a person who by his wrongful act, neglect or default, has caused the death of another. The action there contemplated is clearly not an action by any one asserting a claim in right of the deceased, but an action by a person asserting a claim in his own right to be recouped the damages occasioned to him personally by the death of the deceased. That common law doctrine is capable of alteration by statute, and the Fatal Accidents Acts exemplify such an alteration.”

(c) Law Reform Act 1964 (LR Act)

18. The LR Act and the common law rule expressed in the Latin maxim actio personalis moritur cum persona which it altered, were also discussed in Nonu v Electric Power Corporation [1997] WSSC 20. Essentially, what the maxim actio personalis moritur cum persona means is that a personal action dies with the person and does not survive for the benefit of his estate so that his personal representatives cannot bring an action on behalf of his estate because the cause of action has gone with the deceased to his grave.
19. This common law rule as it relates to tort was also explained by Latham CJ in Woolworths Ltd v Crotty [1942] HCA 35 where His Honour said:

“The rule actio personalis moritur cum persona in relation to tort - In Rose v Ford [1937] AC 826, 833, Lord Atkin states the rule in the form: ‘Claims for personal injuries caused by tort by the common law did not survive to the executor.’ Similarly, Lord Wright in Rose v Ford [1937] Ac 826, 841, refers to the maxim actio personalis moritur cum persona as being ‘the rule preventing the prosecution of a claim in tort for personal injuries where the person who would otherwise be plaintiff or defendant in an action has died.’ In Benham v Gambling [1941] AC 157, 160, Viscount Simon LC said that the actual purport of the maxim actio personalis moritur cum persona was that ‘under the common law of England it was the general rule that no executor or administrator could sue, or be sued, for any tort committed against or by the deceased in his lifetime.’”

21. In addition, Lord Russell of Killowen in Rose v Ford [1937] AC 826, said at pp. 839-840:

“[The Law Reform (Miscellaneous Provisions) Act 1934] stands on quiet a different footing [from the Fatal Accidents Act 1846]. It in no way affects or deals with the common law doctrine [enunciated in Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp. 493; 170 E.R. 1033]. It creates no cause of action against a person causing the death of another, for damages occasioned to the plaintiff by that death. It does not (except as regards funeral expenses) contemplate, much less does it create, any cause of action in any one for damages resulting from death. What it does is (with certain exceptions) to preserve, notwithstanding the death of a person, all causes of action vested in that person when he died; but the claim to be asserted is a claim in right of the deceased person.”

22. Insofar as it is relevant under the LR Act which has altered the common law rule actio personalis moritur cum persona, on the death of a person, 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 (s.3 (1)). There are exceptions that appear in the proviso to s.3 (1) but none of those exceptions is applicable to these proceedings. Proceedings for a cause of action vested in the deceased before his death would be expected to be brought by the executor or administrator of his estate, against the defendant, for the benefit of the estate. In such proceedings, damages are not recoverable for exemplary damages (s.3 (2) (a)), or for pain and suffering suffered by the deceased, or for curtailment of his expectation of life (s.4). In addition, if the death of the deceased was caused by the tortious act or omission of the defendant which gave rise to the cause of action, damages must be calculated without reference to any gain or loss to the deceased’s estate consequent upon the death, except that a sum in respect of funeral expenses may be included (s.3 (2) (c)).
23. The basic difference between a claim brought under the FA Act and a claim brought under the LR Act is that a claim brought under the FA Act is a ‘dependency claim’ while a claim brought under the LR Act is an ‘estate claim.’ A dependency claim is for the benefit of the deceased’s dependants (not the deceased’s estate) and arises upon the death of the deceased. Such a claim is restricted to the pecuniary losses suffered by the deceased’s dependants as a result of the deceased’s death. On the other hand, an estate claim relates to a cause of action vested in a deceased person before his death (not after his death) and is for the benefit of his estate to which his dependants, and possibly some non-dependants, as well as his creditors may have recourse. Such a claim can be for both pecuniary and non-pecuniary losses.

The plaintiff’s claim for loss of future earnings

24. The only damages claimed on behalf of the plaintiff in the statement of claim is for loss of future earnings by the deceased which includes the period after his death. It is important that I deal with this issue now. In doing so, I will refer to what is said in some of the relevant English and Australian textbooks.
25. In the English text Winfield and Jolowicz on Tort (1994) 14th ed. by WVH Rogers, p.685, the learned authors in discussing the survival of causes of action under the Law Reform (Miscellaneous Provisions) Act 1934 (UK) stated:

“Where the injured party dies, the damages recoverable for the benefit of the estate may not include exemplary damages, nor any damages for loss of income in respect of any period after the victim’s death: Law Reform (Miscellaneous Provisions) Act 1934, s.1 (2) (a), as amended by the Administration of Justice Act 1982, s.4. The explanation of the latter provision lies in the problem of the ‘lost years.’ Once it was held that the victim of a tort whose life had been shortened might recover damages for lost earnings during the years of life of which he had been deprived and that this principle applied equally to a person who was already dead when the action was commenced, see Pickett v British Rail Engineering Ltd [1980] AC136; Gammell v Wilson [1982] AC 27, there arose problems of the relationship between the 1934 Act claim and that of the dependants under the Fatal Accidents Act. In particular, there was a possibility that the defendant could be liable twice over. The above provision [Administration of Justice Act 1982, s.4] removes this risk.” (emphasis mine)

26. In the next English text Salmond & Heuston on The Law of Torts (1992) 22nd ed by RFV Heuston and RA Buckley at p.545, the learned authors in discussing the question of awards for future pecuniary loss (lost years), stated:

“Should the plaintiff be entitled to damages for his loss of earnings in the years for which he would normally have lived but for his injuries? In accordance with the principle that a plaintiff is entitled to be compensated for loss of anything having a money value, an affirmative answer was given by the House of Lords in Pickett v British Rail engineering Ltd [1980] AC 136. But the Pickett case gave rise to its own problems when it was held that a claim for the lost years survived for the benefit of the estate: Gammell v Wilson [1982] AC 27. This opened up the possibility of substantial claims for damages against wrongdoers if the deceased had left his estate to persons other than his dependants. So now the Administration of Justice Act 1982, s.4 prohibits the recovery of any damages for loss of income in respect of any period after a person’s death, if that claim is made by the person’s estate, as distinct from the injured party himself while he is still alive. Therefore not all heads of damages available to a victim are available to his estate. A deduction must also be made for the deceased’s living expenses.” (emphasis mine)

27. In the other English text Street on Torts (1988) 8th ed, which is the only edition of that work available to me, the learned author, in relation to survival of causes of action, stated at p.489:
    

“No damages may now be awarded to the estate in respect of the loss of income in the deceased’s ‘lost years’: Administration of Justice Act 1982, s.4 (2) amending s.1 (2) (a) of the 1934 Act. The potential overlap between claims by dependants under the Fatal Accidents Act for loss of dependency and an estate’s claim for lost income from the ‘lost years’ is thus avoided.”

28. In the recent English case of Thompson and Others v Arnold [2007] EWHC 1875, Mr Justice Langstaff said at paras 26 and 27:

“Until the Administration of Justice Act 1982 came into effect, the consequence of the ruling in Pickett v British Rail Engineering Ltd [1980] AC 126 followed by Gammell v Wilson [1982] AC 27 was that a lost years claim could be brought on behalf of the estate of a deceased person. This raised the possibility that a defendant might have to compensate both the estate of the deceased for future lost earnings, under the Law Reform (Miscellaneous Pr9ovisions Act 1934, and (in those few cases where the estate was not left to the husband and children) the dependants of the deceased under the Fatal Accidents Act 1976 for their loss of income dependency. What might be regarded as the same loss might thus be paid out twice. It was to resolve this anomaly, to which attention was drawn by the speeches in Gammell that the 1982 Act was passed, preventing a lost years claim in respect of someone who had died.

“However, an action brought for a living claimant may still include a ‘lost years’ claim. If, therefore, in accordance with the rule in Read’s case it is settled, or comes to judgment, prior to the death of the victim a payment may have been made in respect of those lost years”.

29. In the Australian text The Law of Torts (1992) 8th ed by JG Fleming which is the only edition of that leading work on torts available to me, the learned author stated at p.677:

“Clearly the estate is entitled to damages incurred up to the time of death, such as medical expenses and lost earnings, but what of the deceased’s earnings during his ‘lost years’? These were held recoverable, first, by anyone who sued in his own lifetime for reduction of his life expectancy; later even by his estate, if he had died as a result of the accident: Gammell v Wilson [1982] AC 27; Fitch v Hyde-Cates [1982] HCA 11; (1982) 150 CLR 482. That, however, was apt to duplicate the damages earmarked for his dependants under Lord Campbell’s Act (that is the surplus of what he would have earned in his lost years after allowing for his own expenses) or benefit persons succeeding to his estate who, not being qualified dependants, were deliberately excluded by Lord Campbell’s Act. To avoid this result, legislation quickly intervened to limit the estate’s, recovery to loss sustained by the deceased prior to his death.” (emphasis mine).

30. It was also noted by Professor Fleming in his work The Law of Torts (supra) at p.677 that the Administration of Justice Act 1982 (UK) was soon followed with similar legislations in New South Wales and South Australia. In another Australian text Remedies (1990) 2nd ed by B Kercher and M Noone at p.534, the learned authors pointed out that an interpretation of s.2 (2) (c) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which is modelled upon the 1934 Act (UK), that it excludes recovery of all future economic loss was rejected by the High Court in Fitch v Hyde-Cates [1982] HCA 11; (1982) 150 CLR 482. The learned authors then immediately went on to say:

“Legislative response to this decision soon followed; and amendments to survival of actions Acts in all Australian jurisdictions now exclude recovery of damages for loss of earning capacity in the period after death.”

31. Under Article 111 (1) of our Constitution, the expression “‘Law’ being in force in Samoa” includes “the English common law and equity for the time being in so far as they are not excluded by any other law in force in Samoa, and any custom or usage which has acquired the force of law in Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction.” The crucial words here are “ ‘Law’ being in force in Samoa” includes “the English common law for the time being.”
32. Pursuant to the decisions of the House of Lords in Pickett v British Rail Engineering [1980] AC 136 and Gammell v Wilson [1982] AC 27 the common law in England was that loss of future earnings by a deceased person after death were recoverable in a survival action brought by the deceased’s estate. However, that position has been repealed by legislation in the United Kingdom. The same common law position found favour with the High Court of Australia in Fitch v Hyde-Cates [1982] HCA 11; [1982] 150 CLR 482. But again that common law position was altered by legislation throughout all the Australian jurisdictions. It must follow from this that the common law position that was accepted in Pickett v British Rail Engineering Ltd [1980] AC 136; Gammell v Wilson [1982] AC 27; and Fitch v Hyde-Cates [1982] HCA 11; (1982) 150 CLR 482 would not be “English common law for the time being” in terms of the definition of the term “Law” in Article 111 (1) of our Constitution. That is because the said common law has been repealed by legislation in the United Kingdom and Australia. So not being “English common law for the being,” it, therefore, does not form part of the law of Samoa. But even if I were to exercise the judicial liberty and independence of the Samoan Courts in this matter, I am inclined to agree with the position taken by the United Kingdom and Australian legislatures. This is an issue with a significant policy content where the wisdom of the legislature can be exercised.
33. It necessarily follows from the authorities to which I have referred that the plaintiff’s claim for loss of future earnings by the deceased is not maintainable in law. Firstly, because loss of the deceased’s future earnings after death are not recoverable. Secondly, even though a deceased person may bring a claim for loss of future earnings during his lifetime, no such claim was brought by the deceased in this case during his lifetime. The plaintiff’s claim for loss of future earnings by the deceased is therefore struck out.

Is the plaintiff’s action maintainable under the FA Act?

34. There was some dispute whether the plaintiff’s action is maintainable under the FA Act. This must depend on whether the correct plaintiff wants to bring a dependency claim. But that aside, counsel for the Attorney General submitted that the plaintiff’s action is not maintainable under the FA Act because the death of the deceased did not arise from an “accident”. On the other hand, counsel for the plaintiff referred to s.3 of the FA Act and submitted that death alleged to have been caused by professional medical negligence falls within the words of that provision. I agree with counsel for the plaintiff.
35. I think the construction sought to be placed on the FA Act by counsel for the Attorney General might have been influenced by the name in the short title of the FA Act. There is strong authority in England that reference cannot be made to the short title of an Act for the purpose of interpreting a provision of the Act: Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 per Lord Moulton at pp.128-129. This was followed by Buckley LJ in Re Boaler [1915] 1 KB 21 at p.27. The contrary view was expressed by Scrutton LJ in Re Boaler [1915] 1KB 21 at pp.40-41. In Statutory Interpretation in Australia (1981) 2nd ed by DC Pearce, which is the only edition of that text available to me, the learned author at para [65] took the view that for statutory interpretation purposes there is really no good reason for excluding reference to the short title of an Act for statutory interpretation purposes - for what it might be worth. He also explained that: “The argument against referring to the short title of an Act [for statutory interpretation purposes] is based on the view that it is no more than a label: its object is identification and not description”.
36. In my respectful view, the words “death of a person caused by wrongful act, neglect or default” used in s.3 of the FA Act would include death resulting from professional medical negligence notwithstanding the name of the short title of the Act which contains the word “Accident”. Negligence is “wrongful conduct”; in a sense, negligence is also a “default”; and the word “neglect” clearly implies negligence. The words of s.3 would, of course, include death caused from an “accident”, for instance, a car collision. But the general words used in s.3 are not limited in their meaning to death caused from an “accident” as that term is used in ordinary parlance. Section 3 does not expressly say so and it does not use the term “accident”.
37. The English Courts have also applied the Fatal Accidents Act 1976 (UK) in a broad way to include death resulting from negligence. In the decision of the House of Lords in J D v East Berkshire Community Health NHS Trust & Ors [2005] UKHL 23, para 102, Lord Rodger of Earlsferry said:

“So, when someone negligently kills another, at common law his relatives have no right to recover damages for the distress and loss which this causes them. Of course, sections 1(1) and 1A of the Fatal Accidents Act 1976 modify the common law by providing that the wrongdoer is liable to certain dependants for the loss they suffer due to the death of the victim, and to certain relatives for their bereavement. But the defendant is liable only if he would have been liable to the victim if he had lived. The statute thus remains true to the common law position that the tortfeasor owed a duty of care to the victim but not to the dependants. So, for instance, a surgeon operating on a child will readily foresee that, if he is careless and the child dies, her parents will have no common law right to damages for their distress or illness. They may have a claim for bereavement damages under section 1A of the 1976 Act – but only because the surgeon owed a duty of care to their daughter, as his patient (emphasis mine).

38. In the decision of the House of Lords in Gregg v Scott [2005] UKHL 2 at para 179, Lord Phillips of Worth Matravers said:

“ ‘If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would hav been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured’

“Those who can bring the action are the defendants of the deceased and the damages that they can claim represent the loss of the dependency. They have, of course, to prove that the death was caused by negligence on balance of probability” (emphasis mine)

39. I need to refer to only one more English case. This is Mellor v Sheffield Teaching Hospitals NHS Trust & Ors [2004] EWHC 780. In that case the deceased died following a cardiac arrest in an ambulance which was taking her to the hospital. The deceased’s widower, as the administrator of her estate, brought a dependency claim on his own behalf and on behalf of his son under the Fatal Accidents Act 1976 (UK). The claim was brought against the hospital for the alleged negligence of its doctor who discharged the deceased and against the two general medical practitioners who had been seeing the deceased over a period of four years before she died.
40. The clam against the hospital was dismissed because even though its doctor was in breach of his duty of care when he discharged the deceased, it was not established that the doctor’s breach of duty resulted in the death of the deceased. In other words, causation was not proved. The claim against the two general medical practitioners was also dismissed because neither breach of duty nor causation was established. The important point to note, however, is that the Court did entertain the dependency claim by the administrator of the deceased’s estate under the Fatal Accidents Act 1976 (UK) for professional medical negligence alleged to have caused the death of the deceased.
41. In the Australian case of Watson v State of Tasmania [2007] TASSC 28, the Court dealt with an interlocutory application regarding a dependency claim for medical negligence causing death brought under the Tasmania Fatal Accidents Act 1934. The widow and daughters of the deceased claimed that members of the staff of the general hospital who saw and treated the deceased at the hospital were negligent in not admitting the deceased for at least 24 hours, not undertaking further investigations of the heart condition he was suffering from, and not referring him to a specialist physician. Even though the Court was dealing with an interlocutory application, it is clear from the decision that the Court was entertaining the claim by the widow and daughters of the deceased under the Fatal Accidents Act 1934 for the alleged negligence of the servants or agents of the hospital resulting in the death of the deceased. At para 14, Blow J said:

“The evidence as to the medical condition, life expectancy, work history, and earning capacity of the deceased suggests that the plaintiffs claims under the Fatal Accidents Act, if successful, might result in awards of damages that are well below average for such claims. However, that does not mean that their claims are unmeritorious”.

The defendant’s motion to strike out

42. The Attorney General who is sued as defendant on behalf of the NHS seeks to strike out the statement of claim on four grounds which may be set out as follows:

(1) The plaintiff has no standing to bring the present proceedings on behalf of the deceased.

(2) The defendant is the incorrect party to these proceedings.

(3) Section 24 (2) of the NHS Act is a complete bar to any action brought in tort against the officers, employees, servants, or agents of the NHS.

(4) The statement of claim is frivolous, vexatious, and an abuse of the Court’s process in that:

(a) It does not contain a reasonable cause of action in negligence because it does not adequately plead:

1. which of the officers, employees, servants, or agents of the NHS owed a duty of care to the deceased;
2. the content of any duty of care owed by the NHS or any of its officers, employees, servants, or agents to the deceased; and
3. how each of them was in breach of its/his duty of care.

(b) The pleadings are defective and confusing in that:

1. there is an overlap and confusion between the pleadings and particulars making it impossible for the defendant to respond;
2. the pleadings provide only speculative information without any detail to allow the defendant to formulate a comprehensive or meaningful response, there is insufficient information for the defendant to indentify which (if any) occasions the plaintiff is referring to so that the defendant is unclear of the case against the NHS and cannot plead a defence in response; accordingly, the defendant’s right to a fair trial will be prejudiced;
3. the pleadings do not provide sufficient particulars to support the allegations in the statement of claim and this has disadvantaged the defendant in preparing a response; and
4. the pleadings refers to a series of events and/or occasions without specifying names, dates, and instances where supposed negligent conduct occurred thereby prejudicing the defendant’s ability to respond.

43. I will now deal with each of the grounds of the motion to strike out.

(1) The plaintiff has no standing to bring the present proceedings on behalf of the deceased.

44. It is clear to me that effectively what is attempted in the statement of claim in a vague and ambiguous way is to bring a claim for the benefit of the deceased’s dependants, namely, his father, son, and family. Such a claim must be brought under the FA Act as a dependency claim for the benefit of any of the deceased’s relatives specified in s.4 who is a dependant. In terms of s.5, the claim must be brought in the name of the executor of the deceased if the deceased had died testate, that is, with a will or in the name of the administrator of the deceased if the deceased had died intestate, that is, without a will. Counsel for the plaintiff readily conceded that the proper plaintiff in proceedings under the FA Act must be the executor or administrator of the deceased because of s.5.
45. The statement of claim does not make any claim for reasonable medical or funeral expenses incurred by any of the dependants under s.11. Maybe there is no intention to make such a claim. But if there is such an intention but due to oversight a claim has not been made, then a claim for such expenses must be brought under the FA Act in the name of the executor or administrator of the deceased.
46. If in view of this judgment, it is considered that an estate claim should also have been brought under the provisions f the LR Act for survival of causes of action then such a claim must also be brought in the name of the executor or administrator of the deceased. So whether a claim is brought for the benefit of the deceased’s dependants under the FA Act or for the benefit of the deceased’s estate under the LR Act, the proper plaintiff is the executor or administrator of the deceased, not the present plaintiff who is only a next of kin of the deceased, unless the provisions of s.10 of the FA Act apply. There was no suggestion at the hearing of these proceedings that s.10 applies. I therefore accept the submission by counsel for the defendant that the present plaintiff has no standing in this matter.
47. Having said all of that, I am, however, not prepared to strike out the statement of claim on this basis alone but to allow counsel for the plaintiff to amend the statement of claim to cite the correct plaintiff. I am conscious that a litigant’s constitutional right of access to the Court is not to be lightly denied to him or her, unless his or her claim is so plainly untenable that it cannot possibly succeed and is doomed to fail. And I cannot say at this stage that the claim is plainly untenable.

(2) The defendant is the incorrect party to these proceedings

48. In my respectful view, the Attorney General has been correctly cited as defendant because s.24(1) of the NHS Act provides that claims made against the NHS shall be made pursuant to the Government Proceedings Act 1974. In terms of s.9 of that Act, the Attorney General would be the appropriate defendant for the purpose of these proceedings where a claim is made against the NHS for the alleged negligence of its servants and/or agents resulting in the death of the deceased.
49. Counsel for the Attorney General submitted that the particulars of the negligence alleged against the servants and/or agents of the NHS refer to the care and treatment for kidney problems and/or kidney failures but the NHS is not the primary body that deals with kidney related illnesses. There is a specialized body that provides treatment for kidney related illnesses and it does not come under NHS. This specialized body, as I have found out, is the National Kidney Foundation of Samoa and is established under the National Kidney Foundation of Samoa Act 2005. Under s.5 (1) (c) of that Act, one of the functions of the National Kidney Foundation is to provide treatment, care and support for persons with kidney related diseases and disorders. Counsel for the Attorney General then further submitted that the NHS were only primarily responsible for the treatment of the deceased’s other medical conditions such as diabetes and high blood pressure.
50. I would agree with counsel for the Attorney General that the provision of treatment, care, and support for persons with kidney related diseases and disorders is a statutory function of the National Kidney Foundation which does not come under NHS. However, I prefer not to express any view at this stage on whether the provision of care and treatment for kidney related diseases and disorders might not also be a function of the NHS which it can perform under the NHS Act. Assuming for present purposes that counsel for the Attorney General are right that the provision of kidney care and treatment is not a ‘statutory function’ of the NHS, it appears from the facts pleaded in the statement of claim, particularly in para 8, that servants or agents of the NHS were actually involved in the treatment of the deceased after it was discovered that he was suffering from kidney problems which is alleged they should have diagnosed, detected, or suspected at an early stage. This involvement of servants or agents of the NHS in the treatment of the deceased for kidney problems was regardless of whether or not the provision of such treatment is one of their statutory functions. Probably, no one thought at the time of looking at the NHS Act or the National Kidney Foundation of Samoa Act 2005 to find out the scope of his or her duties. Perhaps the call of professional duty upon seeing a sick man prompted the servants or agents of the NHS into action without having to worry about legal technicalities.
51. It is a principle of general application to a motion to strike out a statement of claim that the facts pleaded in support of the claim must be assumed to be true, that is to say, capable of being proved. There is no material before the Court at this stage of proceedings to justify a departure from that principle. So I have to assume at this stage that the factual allegations in para 8 of the statement of claim are true, that is, capable of proof. Furthermore, there is no material before the Court at this stage of proceedings to show that when the alleged servants or agents of the NHS treated the deceased for kidney problems (even if that is not one of their statutory functions) they had no duty to exercise reasonable care and skill.
52. It seems to me that if the submission by counsel for the Attorney General is correct that it was not a statutory function of the servants or agents of the NHS to provide kidney treatment to the deceased, the correct plaintiff, when the statement of claim is amended, might still say that even if that were so, by treating the deceased for his kidney problems on the advice of the dialysis unit, a duty to exercise reasonable care and skill attached at common law to the servants or agents of the NHS. In my opinion, that view is open in the circumstances; it is not plainly untenable; it is at least open to debate. Assuming then that in the circumstances of what took place the servants or agents of the NHS had a duty of care for which the NHS can be vicariously liable for its breach, para 8 of the statement of claim provides particulars of such a breach of that duty of care.
53. I have, therefore, come to the conclusion that at this stage of the plaintiff’s pleadings, it must be assumed that the Attorney General has been cited as the correct defendant on behalf of the NHS. But some tidying up to the statement of claim is required to show the true nature of the relevant duty of care if, in fact, the servants or agents of the NHS have no statutory function to provide the kidney treatment they did provide to the deceased.

(3) Section 24(2) of the NHS Act is a complete bar to any action in tort against the officers, employees, servants or agents of the NHS.

54. The next ground in support of the Attorney General’s motion to strike out the statement of claim is that s.24(2) of the NHS Act provides a complete bar to any action in the tort against the officers, employee, servants or agents of the NHS. Section 24 of the NHS Act provides:

“(1) Claims made by or against the Service shall be made pursuant to the Government Proceedings Act 1974.

“(2) A person exercising a function under this Act does not incur civil liabilities for anything done or omitted to be done in good faith:

(a) In the exercise of a power or the discharge of a duty under this Act; or

(b) In the reasonable belief that the act or omission was in the discharge of a duty under this Act”.

55. I do not propose to embark in this judgment on an exercise in statutory interpretation for the purpose of ascertaining the true meaning and scope of s.24(2). That was not raised in these proceedings and there are already sufficient issues for me to deal with. Essentially, the submission by counsel for the Attorney General in this regard is that s.24(2) gives express protection to any person employed by the NHS for any acts done or omitted to be done in good faith in the course of employment and in accordance with the purpose for which the NHS was set up. Does this mean that the good faith immunity under s.24(2) apply only to acts done or omitted to be done by a NHS employee in the exercise of a function under this Act or does it mean that the good faith immunity also apply to acts done or omitted to be done by a NHS employee in the exercise of a function which is not one of the functions provided for the NHS employees under this Act? I pose this question because of the earlier submission on behalf of the Attorney General that the treatment of patients for kidney problems is not one of the statutory functions of the NHS. Such a function pertains to the National Kidney Foundation which is separate statutory body. I do not propose to resolve this question in this judgment. I will, therefore, move on to the main submission by counsel for the Attorney General in support of the present ground of the strike out motion.
56. The essence of the main submission by counsel for the Attorney General is that there are no facts pleaded in the statement of claim to show that the relevant employees of the NHS did not act in good faith. In other words, there is no allegation of ‘absence of good faith’ in the statement of claim. It suggests that it is for the plaintiff to allege ‘absence of good faith’ and furnish particulars in support of such an allegation. It also suggests that the burden of proving ‘absence of good faith’ lies on the plaintiff. The issue is not straightforward; so I will approach it in this way.
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 excited, 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”.

56. There are other formulations of the elements which constitute the tort of negligence. But the essential elements of negligence are still the same. In their practical applications, these formulations of the elements of negligence invariably lead to the same results. Damages which are too remote are not recoverable under any of those formulations. The important point to note for present purposes is that neither ‘good faith’ nor ‘absence of good faith’ is an essential element of a cause of action in negligence. This gives rise to the question of whether in terms of s.24(2) of the NHS Act good faith is something that the plaintiff must assert, plead, and prove or whether it is something that the defendant must assert, plead, and prove. In my view, if in the context of the relevant statutory provision the requirement of good faith constitutes a ‘defence’, then it is for the defendant to assert, plead, and prove good faith.
58. 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. At the trial, the plaintiff would have to adduce sufficient evidence to prove on the balance of probabilities the facts which have been pleaded in support of his cause of action. This obligation on the plaintiff to adduce evidence to prove the facts which are essential to his cause of action is the evidential burden sometimes called the provisional burden. It would not be compatible with the ordinary requirements of the legal and evidential burdens of proof if the plaintiff is placed under an obligation to plead and prove a good faith immunity when good faith is not an element of a cause of action but constitutes a ‘defence’ to the cause of action. In such a situation, as it exists in these proceedings, it must be for the defendant to assert, plead, and prove good faith as a defence to the action in negligence. The legal burden is on the defendant. This will be consistent with the other defences to a cause of action in negligence where the law has placed the legal burden of proof on the defendant. Furthermore, if the burden of proof is placed on the plaintiff, as in this case, then what the plaintiff would have to prove is not good faith on the part of the defendant for that will exonerate the defendant from liability, but ‘absence of good faith’ which is a negative. But s.24(2) speaks of ‘good faith’ and not ‘absence of good faith’. So to place the burden of proof on the plaintiff would, in effect, be to require the plaintiff to prove ‘absence of good faith’ which is not something that is mentioned in s.24(2).
59. The traditional defences to an action in negligence are contributory negligence and volenti non fit injuria which means no wrong is done to a person who consents to it. In the Law of Torts in New Zealand (1997) 2nd ed by Todd et al, the learned authors stated at para 21.1, p.1073:

“A plaintiff who sues another in respect of tortiously inflicted harm, yet who has also failed to take reasonable care in looking after his or her own interest and in that respect has contributed to his or her own loss, may be met with the defence of contributory negligence. The defence must be pleaded, the burden of proof being on the defendant: Kenny v Dunedin City Corporation [1920] NZGazLawRp 160; [1920] NZLR 513; Goldstine v R [1947] NZLR 588 (CA)”.

60. 60. In respect of the defence of volenti, the learned authors of The Law of Torts in New Zealand (supra) stated at para 21.3, p.1103:

“A person who has voluntarily assumed the risk occasioned by a breach of duty by the defendant is barred. In such a case the maxim volenti non fit injuria applies. It means ‘No harm is done to one who consents’. It is for the defendant to prove that the plaintiff consented to, or assumed the risk of, the harm. Before the defendant is required to do this, however, the plaintiff must prove that the defendant owed a duty to take care, and was in breach of that duty”.

61. As a general rule as to which party bears the legal burden of proving a defence to a civil action, Walsh J in Currie v Dempsey [1967] 2 NSWR 532 said at p. 539 (in a passage cited in Cross on Evidence (1996) 5th Aust ed at para [7065] p.198):

“The burden or proof in the sense of establishing a case lies on a plaintiff if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is an ‘avoidance’ of the claim which, prima facie, the plaintiff has”.

62. It is clear from the wording of s.24(2) of the NHS Act that if the alleged acts or omissions with which the servants or agents of the NHS are sued in negligence were done or omitted to be done in good faith, then that constitutes a good defence. That being so, it is for the defendant to assert, plead, and prove good faith. I am, therefore, not able to accede to the contention by counsel for the Attorney General that the plaintiff should have asserted and pleaded good faith.
63. In the event that it may be necessary to raise good faith as a defence, it would be helpful to consider what is the true meaning in which the term ‘good faith’ is used in the context of s.24(2) of the NHS Act. This is because in Cannane v J Cannane Pty Ltd (In Liquidation) (1998) 192 CLR 557, 596, Kirby J observed that the meaning of the terms ‘good faith’ and ‘acted in good faith’ may depend on the statutory context in which they are used.

(4) The statement of claim is frivolous, vexatious, and an abuse of process

64. The argument by counsel for the Attorney General that the statement is frivolous, vexatious, and an abuse of process and must therefore be struck out is based on two principal grounds; firstly, the statement of claim is not adequately pleaded and does not disclose a complete cause of action in negligence; and, secondly, the pleadings in the statement of claim are defective and confusing. Each of these principal grounds was elaborated in the submissions of counsel on the basis of the decision of the Supreme Court of British Columbia in Canada in Forde v Interior Health Authority 2008 BCSC 1013 (CanLII) which was concerned with a claim in professional negligence against medical practitioners employed in a public hospital.
65. The relevant propositions which were stated in Forde v Interior Health Authority 2008 BCSC 1013 (CanLII) are set out in the helpful submissions of counsel for the Attorney General. I have perused the actual decision in Forde v Interior Health Authority and it will be safe to cite from the submissions of counsel which quote the relevant propositions as follows:

“(a) To demonstrate a possible cause of action against the defendant, the plaintiff must plead those facts which are material to a viable cause of action.

“(b) Although pleadings may be general, they must be specific enough to show on what grounds the proposed defendant is being sued.

“(c) It is inappropriate to lump defendants together and make blanket allegations against them, unless those defendants were in an identified relationship to the plaintiff.

“(d) Merely setting out a list of negligent actions that may or may not be applicable to each of the defendants on an individual level is so imprecise that it fails to give rise to a cause of action.

“(e) It is not sufficient to plead conclusions without pleading the material facts which would give rise to those conclusions.

“(f) The defendants are entitled to be informed of how it is said they have failed to exercise reasonable care, for example, what diagnostic steps were not taken, what tests were not administered, what medications should have been prescribed but were not and so on before they are required to plead a defence to the allegation that they were negligent. In other words, the plaintiff should plead with specificity the facts which constitute the malpractice”.

66. Furthermore, counsel for the Attorney-General quoted in their submissions:

“To permit the plaintiff to plead otherwise than in accordance with these principles is to countenance a method of pleading which effectively allows the plaintiff to engage in a fishing expedition which in turn leads at a minimum to the lengthening of the discovery process. The pleadings under consideration in Forde, which were struck out, resemble the allegations in the statement of claim in terms of their generality and being mere conclusions without supporting material facts”.

67. In dealing with this part of the Attorney General’s motion to strike out, I have decided to follow the supporting grounds in the order in which they are set out in the submissions of counsel. I will also adopt the sub-headings used in their submissions.

The statement of claim does not disclose a complete cause of action

68. The first ground in support of striking out the statement of claim as being frivolous, vexatious, and an abuse of process is that it does not disclose a complete cause of action. This is discussed under three ‘sub-grounds’ to which I will now turn.

(a) Statement of claim does not adequately plead which of the officers or agents of the NHS owed a duty of care to the plaintiff

69. It is pleaded in the statement of claim that the NHS employs doctors, nurses, and other staff. It is then alleged that sometime in 2011 the deceased was brought and admitted to the TTM Hospital for diabetes and high blood pressure. He was then discharged by the health authorities. The deceased’s condition would deteriorate and he had to be re-admitted to the Hospital. When this situation continued for quite some time, the deceased’s family enquired of the doctors for the reason. They were told it had to do with the deceased’s diabetes and high blood pressure. Subsequently, the deceased suffered kidney failure and was placed on dialyses until he died. It is then alleged in the statement of claim that the ‘Hospital and its servants or agents’ who were involved in the care and treatment of the deceased were negligent in that they failed to exercise reasonable care and skill in the diagnosis, treatment, and care of the deceased resulting in his death.
70. It is not entirely clear from the statement of claim whether the Hospital is being sued as employer for the alleged negligence of its doctors, servants or agents or whether the Hospital is also being sued as an entity for negligence. It is also far from clear who were the doctors, servants, or agents that were involved in the care and treatment of the deceased. I agree with the submissions by counsel for the Attorney General that the plaintiff’s pleadings relating to this part of his action are overly general. The pleadings should identify the doctors, servants, or agents of the NHS who were involved in the care and treatment of the deceased. In this way, it will become possible to determine which doctor, servant, or agent of the NHS owed a duty of care (if any) to the deceased. It will also assist in determining the scope of any such duty of care. Vicarious liability may then be alleged against the NHS. The present state of the plaintiff’s pleadings makes it impossible to do any of these things. However, I have decided not to strike out the statement of claim but to grant leave to amend the statement of claim for the pleadings to identify the relevant doctors, servants, or agents and their respective involvements in the care and treatment that was provided to the deceased. The Attorney General may move again to strike out if there is non-compliance with that order.

(b) The content of any duty of care is not necessarily the same for each of the servants or agents of the NHS

71. As none of the servants or agents of the NHS who were involved in the care and treatment of the deceased has been identified, it is not known what duty of care was owed by any of them to the deceased. As a consequence, the contents or scope of such a duty is also not known. Furthermore, it also not known how any of the un-identified servants or agents of the NHS was in breach of any duty of care owed to the deceased. These are serious defects in the pleadings. However, I have decided not to strike out the statement of claim but to grant leave to amend the claim to show with sufficient specificity not only the servants or agents of the NHS who were involved in the care and treatment of the deceased but also to show with sufficient particularity the contents or scope of any duty or duties of care they owed to the deceased.

(c) How each of the servants or agents of the NHS acted in a way to breach his or her duty of care

72. I would have to assume that the particulars given for negligence in para 8 of the statement of claim are particulars for breach of a duty or duties of care. This is because the expressions “duty of care” and “breach of duty of care” are not mentioned in the statement of claim. These particulars in para 8 allege a number of ‘failures’ on the part of the Hospital and its agents or servants.
73. Counsel for the Attorney General submitted that the plaintiff has not pleaded any material facts to show how the servants or agents of the NHS had breached a duty of care to the deceased resulting in his death. As I understand the submissions by counsel for the Attorney General, they were saying that the particulars for negligence (or breach of duty of care) given by the plaintiff should have shown not only the contents (or requirements) of any duty of care owed by the servants or agents of the NHS to the deceased but also how the servants or agents of the NHS failed to meet those requirements. It is not sufficient to say that the servants or agents of the NHS failed to do this or that. It must be shown that what the servants or agents of the NHS had failed to do was the proper thing they should have done, so that by doing what they did instead of doing the proper thing they should have done, they were negligent, that is, in breach of their duty of care.
74. Counsel for the Attorney General relied on Forde v Interior Health Authority 2008 BCSC 1013 (CanLII) per Cohen J at para [27]. What Cohen J was saying in para [27] is that a defendant, such as a doctor, in a professional negligence claim is entitled to be informed of how it is said he has failed to exercise reasonable care and skill, for example, what diagnostic steps should have been taken but were not taken, what tests should have been administered but were not administered, what medications should have been prescribed but were not prescribed, and so on before the defendant is required to plead a defence to the allegation of negligence. In this way, the defendant would be properly informed of what the plaintiff is saying not only as to what he should have done but failed to do but also as to whether what the defendant did was not what he should have done. It can then be alleged that the failure of the defendant to do what he should have done or the doing of something which he should not have done amounted to a breach of the defendant’s duty of care which resulted in the death of the deceased.
75. What the particulars of negligence in the statement of claim allege is that the servants or agents of the NHS failed to do certain specified acts but they do not show what were the proper medical practices or procedures the servants or agents of the NHS failed to follow in each set of circumstances. I, therefore, agree with counsel for the Attorney General that the allegations of breach of duty of care are not adequately pleaded so that the NHS is not in a position to respond. However, I have decided not to strike out the statement of claim but to grant leave to amend the statement of claim to show what the servants or agents of the NHS should have done as the proper thing to do.

The pleadings are defective and confusing

76. The second ground advanced by counsel for the Attorney General in support of striking out the statement of claim as being frivolous, vexatious, and an abuse of process is that the pleadings were defective and confusing. This ground was discussed in the submissions of counsel under four ‘sub-grounds’. I will deal with each of those ‘sub-grounds’ in turn.

(a) There is an overlap and confusion between the pleadings and the particulars making it impossible to respond

77. Counsel for the Attorney General at the outset of their submissions in this connexion refer to the functions of pleadings as set out by the High Court of Australia in Dare v Pulham (1982) 148 CLR 658, 664. It is there stated:

“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into Court”.

78. Given the current developments in case management as well as in pre-trial and out of Court settlements of civil cases in Samoa, I will also refer to the functions of pleadings set out in Bullen & Leake & Jacobs Precedents of Pleadings (2004) vol 1, 15th ed. At para 1-12, p.10, the learned authors said:

“Lord Hoffman in Barclays Bank v Boulter [1999] 4 A11 ER 513, 517 summarised the basic function of pleadings as being: ‘the purpose of pleadings is to define the issues and give the other party fair notice of the case which he has to meet. This statement was made after the introduction of the CPR (Civil Procedure Rules), though the case was decided under the old rules, and contains equally the essence of the purpose of a statement of a case. Other considerations identified by Jacob, the leading modern exponent of civil procedure, include setting the limits of the action, and providing a record of the ambit of the dispute (for the purposes, for example, of res judicata and issue estoppel). To this may be added the importance of the statement of case as a foundation for efficient case management, and in the pre-trial process generally. As Lord Woolf said in Access to Justice (1995), Ch 4, para 22, ‘the pleadings will help the Court to determine the range and scale of material required to progress the case and the extent of discovery, witness statements and the use of experts’. They also play an important part in settlement, since both parties must know the scope of the dispute which it is proposed to settle. Under CPR, Part 36, provision is made for the first time for the claimant as well as the defendant to make an offer of settlement. Lord Woolf has said in Access to Justice (1995), Ch 4, para 22 that ‘the philosophy of litigation should be primarily to encourage early settlement of disputes”

79. I accept the submissions by counsel for the Attorney General that the pleadings in the statement of claim do not perform the functions or serve the purpose that proper pleadings are supposed to perform or serve. As a result the pleadings are most confusing due to the defects which have already been discussed. But this is not a sufficient reason at this stage to strike out the statement of claim even though the strike out motion has greatly assisted in identifying and clarifying the issues regarding the pleadings. For that, I am grateful to counsel for the Attorney General.

(b) The pleadings only provide speculative information without any detail to allow the defendant to formulate a comprehensive response. There is insufficient for the defendant to identify which, if any, occasions the plaintiff refers to. As a result, the defendant is unclear of the case against them and cannot plead a defence in response. Accordingly, the fair trial of this matter is prejudiced.

80. I accept the submissions by counsel for the Attorney General that the statement of claim, particularly in paras 2-7, does not provide sufficient information to enable the defendant to provide a comprehensive and meaningful response. This is because the statement of claim does not refer to specific dates, does not refer to specific servants or agents of the NHS, and does not refer to a duty of care or breach of any duty of care. Such information is needed to demonstrate whether there is any reasonable cause of action against the NHS and its servants or agents. The present state of the pleadings will put an unfair and expensive burden on the defendant to formulate a response and is likely to prejudice their right to a fair trial.
81. I accept all that counsel for the Attorney General were saying. The statement of claim should have provided sufficient information by way of particulars regarding specific dates, specific servants or agents of the NHS, a specific duty or duties of care, and a specific breach or breaches of such duty or duties of care. Without such particulars the defendant will be severely handicapped in the preparation of their defence which is likely to prejudice their right to a fair trial. Having said that, the constitutional right of a litigant to gain access to the Courts is something not to be lightly denied. This is why the principles regulating the Court’s strike out jurisdiction are very strict. For instance, in Alii and Faipule of Satapuala v Samoa Trusts Estates Corporation [2012] WSSC 24 this Court said:

“The jurisdiction to strike out is to be sparingly exercised and will only be exercised in a plain and obvious case where it appears from the material before the Court that the plaintiff’s cause of action is so clearly untenable that it cannot possibly succeed and is certain to fail”.

82. It is true, as counsel for the Attorney General submitted, that the plaintiff’s pleadings are overly general, confusing, and defective. But it is not plain and obvious to me at this stage, from the material before the Court, that if the plaintiff’s action had been properly pleaded it would have appeared to be so clearly untenable that it cannot possibly succeed and is certain fail. I need more information in order to reach the required level of satisfaction that the plaintiff’s action, if it had been properly pleaded, is so clearly untenable,that it cannot possibly succeed, it is certain to fail, and therefore must be struck out. I have, therefore, decided not to strike out the statement of claim but to grant leave to amend the statement of claim to provide the particulars required by the defendant. The Attorney General may move again to strike out the amended statement of claim should that be necessary.

(c) The pleadings do not provide sufficient particulars to support the allegations of negligence which has disadvantaged the defendant in preparing its response

83. I have already dealt in other parts of this judgment with the issues raised by counsel for the Attorney General in this part of their submissions and need not repeat the same.

(d) The pleadings refer to a series of events and/or occasions without specifying precise dates and instances where supposed negligent conduct occurred thereby prejudicing the defendant’s ability to respond

84. I accept the submissions by counsel for the Attorney General that the statement of claim should have pleaded and sufficiently particularise each incident in which the deceased was provided with care and treatment at the NHS, the name of each servant or agent of the NHS who provided what care or treatment at each incident, the date of each incident, the duty of care owed by which servant or agent of the NHS at which incident, and how each servant or agent of the NHS alleged to be negligent was in breach of his or her duty of care. It is not possible to tell from the statement of claim whether the same duty of care was owed to the deceased by all the servants or agents of the NHS who were involved in providing care and treatment to the deceased in every incident or whether a different duty of care existed in each incident. It is also not possible to tell from the statement of claim whether each servant or agent of the NHS owed a different duty of care or whether some of them owed the same duty of care while others owed different duties. These matters and others already discussed should be pleaded and sufficiently particularised in an amended statement of claim.

Conclusions

85. (a) The present plaintiff is struck out as he has no standing to bring the present proceedings.

(b) The correct plaintiff may bring a dependency claim under the FA Act for alleged professional medical negligence if he or she wants to do so.

(c) The correct plaintiff may also bring an estate claim under the LR Act if it is appropriate to do so.

(d) The claim by the present plaintiff for $2,620,800 for loss of income by the deceased for twenty years is struck out as it is not maintainable in law.

(e) It is for the Attorney General as defendant to assert, plead, and prove good faith if he wants to rely on good faith as a defence to a claim by the correct plaintiff.

86. Leave is granted, subject to the payment of $750 costs by the present plaintiff to the defendant (prior to filing a statement of claim), to file and serve an amended statement of claim by 5 February 2013 to make the following improvements:

(a) The correct plaintiff in terms of the FA Act must be cited.

(b) The name of each doctor or other servant or agent of the NHS who was involved in the care and treatment of the deceased, and how or she was involved, must be pleaded with sufficient particularity.

(c) Each incident on which the deceased was the subject of care and treatment provided by the NHS doctors or other servants or agents and what happened on each such incident must be pleaded with sufficient particularity.

(d) The date of each such incident and the names of the doctors or other servants or agents of the NHS involved therein and alleged to have been negligent should be pleaded.

(e) Any duty of care, including its scope, alleged to have been owed by a doctor or other servant or agent of the NHS to the deceased at each incident must also be pleaded with sufficient particularity.

(f) How any duty of care that was owed to the deceased was breached must also be pleaded and sufficiently particularised. In this regard, the amended statement of claim should plead what was the proper thing (or accepted practice or procedure) that should have been done or followed but was not done or followed, or that what was done, setting out what was done, was not the proper thing to do in terms of accepted medical practice or procedure, setting out what is the accepted medical practice or procedure, if such a practice or procedure exists.

(g) The causal connection between any alleged breach of a duty of care and the death of the deceased must also be pleaded with sufficient particularity.

(h) Any claim for damages must also be pleaded with sufficient particularity bearing in mind that only pecuniary loss may be sought in a dependency claim while both pecuniary and non-pecuniary losses may be sought in an estate claim if appropriate.

(i) If the correct plaintiff decides to bring a dependency claim under the FA Act and an estate claim under the LR Act then both claims must be pleaded in the same amended statement of claim.

(j) In a dependency claim, the matters to be pleaded are the name and place of residence of each dependant; the relationship of each dependant to the deceased, that is, whether wife, husband, parent, or child; the date of birth of each dependant; and the details of the nature of each dependency claim.

87. Leave is reserved to the Attorney General to move again to strike out the amended statement of claim should that be necessary.
88. This matter will be re-mentioned on 6 February 2013 at 9:30am.
    

CHIEF JUSTICE