Timaima Leba Dakuna v. Laucala Island Resort Limited
| Jurisdiction | Fiji |
| Judgment Date | 20 January 2017 |
| Date | 20 January 2017 |
| Docket Number | CIVIL ACTION NO. HBC 150 of 2015 |
| Counsel | (Ms) Repeka Qoro Varasikete for the Plaintiff,Mr. John Leslie Apted for the Defendant |
| Court | High Court (Fiji) |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 150 of 2015
Between:
Timaima Leba Dakuna of Saweni Lautoka, Laundry Attendant.
Plaintiff
v.
Laucala Island Resort Limited, a limited liability company having its registered office at KPMG, Level 10, BSP Central, Renwick Road, Suva.
Defendant
Date of Hearing:- 19th October 2016
Date of Ruling:- 20th January 2017
(Ms) Repeka Qoro Varasikete for the Plaintiff
Mr. John Leslie Apted for the Defendant
RULING
(A) INTRODUCTION
1. The matter before me stems from the ‘Inter-Parte Summons’ filed by the Defendant, pursuant to Order 18, rule 18 (1) (a), (b), (c) and (d) of the High Court Rules, 1988 and the inherent jurisdiction of the Court seeking the grant of the following Orders;
(a) An Order under O.18 r 18(1) (a) of the High Court Rules, 1988 and the inherent jurisdiction of the Court that the Statement of Claim be wholly struck out and the Plaintiffs claims against the Defendant contained therein be dismissed upon the ground that they disclose no reasonable cause of action;
(b) Further or in the alternative, an Order under O.18 r18(1)(b) of the High Court Rules, 1988 that the Statement of Claim be wholly struck out and the Plaintiff's claims against the Defendant contained therein be dismissed, upon the ground that they are scandalous, frivolous or vexatious;
(c) Further or in the alternative, an Order under O.18 r18(1)(c) of the High Court Rules, 1988 that the Statement of Claim be wholly struck out and the Plaintiff's claims against the Defendant contained therein be dismissed, upon the ground that they prejudice, embarrass or delay the fair trial of the action;
(d) Further or in the alternative, an Order under O.18 r18(1)(d) of the High Court Rules, 1988 that the Statement of Claim be wholly struck out and the Plaintiff's claims against the Defendant contained therein be dismissed, upon the ground that they are otherwise an abuse of the process of the court.
(e) An Order that the Plaintiff pays the costs of this application on a full indemnity basis; and
(f) Such further and other orders as this Honourable Court may deem just.
(2) The Defendant did not file any Affidavit as evidence in support of the Summons for striking-out.
(3) The application for striking-out is strongly opposed by the Plaintiff. The Plaintiff too did not file any Affidavit. However, the Plaintiff has, in response, filed her Summons on 10th May 2016 to amend her Statement of Claim. That application is not yet before the Court for hearing.
(4) The Plaintiff and the Defendant were heard on the Summons for striking-out. They made oral submissions to Court. In addition to oral submissions, Counsel for the Defendant filed a careful and comprehensive written submission for which I am most grateful.
(B) THE FACTUAL BACKGROUND
(1) What is this case about?
What are the circumstances that give rise to the present application?
(2) On 11th September 2015, the Plaintiff issued a Writ against the Defendant seeking damages.
(3) There are three aspects to the Plaintiff's case;
(a) Breach of Statutory duty arising from the “Health and Safety at Work Act, 1996”.
(b) Tort of Negligence for personal injury.
(c) Breach of the provisions in the Employment Relations Promulgations, 2007”.
(4) To give the whole picture of the action, I can do no better than set out hereunder the averments/assertions of the pleadings.
The Plaintiff in her Statement of Claim pleads inter alia;
1. At all material time the Plaintiff was employed by the Defendant as laundry attendant from 2009 to 2014.
2. At all material time the Defendant is a limited liability company having its registered office at KPMG Level 10, BSP Suva Central, Renwick Road, Suva and carries on business of Tourism at Laucala Island.
3. That the Plaintiff was employed by the 1st Defendant to do work as follows:
i. Shift work from 5 am to 3 pm daily during the week
ii. Washing staff uniforms using washing machine and hand washing using washing detergent.
iii. Ironing clothes.
4. That after the death of one of the laundry employee, Mr. Emosi Seru working with the Plaintiff, the Defendant then installed air condition in the workplace.
5. That sometimes in June or July 2013 during the course of her employment, the Plaintiff developed sudden pain on her left middle finger, and slowly her left hand swollen and increased in size.
6. The Plaintiff informed and made complaint of pain to the laundry supervisor and she visited the company doctor on the island. The Plaintiff was prescribed and given with panadol tablets but advised to continue working.
7. The Plaintiff visited the resort doctor and went to Waiyevo Hospital in Taveuni on number of occasions when pain persisted but was never treated. She was advised to travel to CWM Hospital, Suva for treatment.
8. On 11th November 2013 due to consistent and continuous pain on her left hand, the plaintiff went to Suva on her own and was seen at CWM Hospital for treatment. The Plaintiff was advised to do light duty and reviewed on 21st January 2014. Her next review was on 4th February 2014.
9. On 29th January 2014 the Plaintiff was admitted and discharged from CWM Hospital on 12th February 2014 and her next review was on 21st February 2014.
10. On 4th February 2014 the Plaintiff was taken for a left hand biopsy and discharged on 7th February 2014.
11. On 21st February 2014 the Plaintiff was reviewed by orthopaedic clinic and again admitted. She was transferred to the Hub Centre and TB Ward, Tamavua for her retroviral test.
12. In summary the Plaintiff was admitted 3 times vide letter dated 30th April 2014 to CWMH
29.01.14 to 03.04.14
-Left hand biopsy
21.02.14 to 03.04.14
- Pulmonary Tuberculosis
- Immuno Compromised State
- Varicella Zoster injection
16.05.14 to 10.06.14
- Pulmonary Tuberculosis
- Immuno compromised State
STATUTORY BREACH
13. That the Defendant failed to comply with the provision of the Health and Safety at Work Act 1996, specifically Section 26 of the said Act.
PARTICULARS OF BREACH
• The Defendant failed to give notice of the accident or bodily injury to the relevant authority.
• The Plaintiff was never provided with adequate safety equipment during her working hours.
• Fail to provide adequate cooling system during the working hours
• Fail to provide safety equipment and procedures at the workplace.
• The Defendant allowed the Plaintiff to do other work like hand sewing of staff uniforms
• Allowed the Plaintiff to remove stains on clothes by hand washing using “DIPITZ” chemical mixture and other washing detergent.
• Did hand sewing machine and needles for patching staff clothes/uniforms.
NEGLIGENCE
14. The resort doctor as employee, servant and agent failed to provide proper medical prescription and medical advice to the Plaintiff. Hence the Plaintiff after complaining of the sudden pain on her wrist to her supervisor, the resort doctor failed to examine and or treat the Plaintiff.
15. As consequence of the matters aforesaid, the Plaintiff's left hand was swollen on the base of 4th and 5th fingers over 6 months and left supraclavicular swelling and left axilla swelling over 1 month.
16. Whilst the Plaintiff was still admitted at Tamavua Hospital the Defendant, his employee and or representative delivered termination letter dated 24th March 2014.
17. Such termination letter was effected immediately.
BREACH OF EMPLYMENT RELATION PROMULGATION
18. That such termination is in breach of the Employment Relation Promulgation specially Sections 29, 41 and 60 (1) (b) and (2).
PARTICULARS OF BREACH
i. Failure to give one months notice
ii. Failure to pay wages and benefits in lieu of notice
iii. Fail to compensate in respect of accident or disease and right to repatriate
iv. Fail to pay holiday
19. As consequences of the aforesaid matters the Plaintiff suffers and continues to suffer damages and financial loss.
PARTICULARS OF LOSS
i)
Transportation by husband and in laws for visitation over the period of admission
-
$1,000.00
ii)
Food and medical expenses
-
$ 300.00
Total
-
$1,300.00
20. That the Plaintiff mitigated her loss by finding an employment with a tiny hotel in Lautoka as laundry attendant.
(5) The Defendant filed its Acknowledgement of Service on 02nd October 2015 and its Statement of Defence on 20th October 2015.
The Defendant admits that the Plaintiff was an employee from 21st July 2008 to 14th May 2014, but denies any liability to the Plaintiff.
(C) THE LAW
(1) Against this factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing “striking-out”. Rather than refer in detail to various authorities, I propose to set out hereunder important citations, which I take to be the principles remain in play.
(2) Provisions relating to striking out are contained in Order 18, rule 18 of the High Court Rules, 1988. Order 18, rule 18 of the High Court Rule reads;
18. – (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action or anything in any pleading or in the indorsement, on the ground that –
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court;
And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(3) No evidence shall be admissible on an application under paragraph (1) (a).
Footnote 18/19/3 of the 1988 Supreme Court Practice reads;
“It is only plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley MR. in Hubbuck v Wilkinson (1899) 1 Q.B. 86, p91 Mayor, etc., of the City of London v Homer (1914) 111 L.T, 512, CA). See also Kemsley v Foot and Qrs (1952) 2KB. 34; (1951) 1 ALL ER,...
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