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Mawi v Neptune Shipping Agency [2012] FJHC 1267; HBC435.2007 (7 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 435 OF 2007

BETWEEN:

TOMASI MAWI
PLAINTIFF

AND:

NEPTUNE SHIPPING AGENCY
DEFENDANT

Appearances: Ms. Ratuvuku for the Plaintiff.
Ms. R. Lal for the defendant.

Date / Place of Judgment: Monday 07 August, 2012 at Suva.

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:-

STRIKING OUT CLAIM – ALLEGATION THAT CLAIM DOES NOT DISCLOSE REASONABLE CAUSE OF ACTION – DEFENDANT ASSERTED THAT PLAINTIFF CANNOT SUE IN PERSONAL CAPACITY-S.3 AND S.5 OF THE COMPENSATION TO RELATIVES ACT STATES CAUSE OF ACTION AND GIVES LOCUS STANDI TO EXECUTOR/ADMINISTRATOR TO SUE IN HIS NAME.

LEGISLATION:

THE HIGH COURT RULES 1988 ("HCR"): ORDER 18 RULE 18 1(a).

COMPENSATION TO RELATIVES ACT CAP. 29: S.3 AND S.5.

1. The defendant files this application to strike out the plaintiff's claim on the ground that it discloses no reasonable cause of action, the application having being made under Order 18 Rule 18 (1)(a) of the HCR.
   
2. The plaintiff's claim pleads that he is the lawful husband of the deceased Unaisi Tunidau who was employed by the defendant company as its crew manager. The plaintiff states that on 26 October 2004, the deceased died at work and that her death was caused by the negligence of the defendant in that it:
   
   • (a) Failed to allow the deceased to have a proper rest.
     
   • (b) Allowed the deceased to work continuously for 24 hours without proper rest.
     
   • (c) Not taking into consideration that the deceased was on medication.
     
3. The plaintiff says that due to the death, his family has suffered loss and damages.
   
4. In its defence, the defendant denies that the death was caused by any negligence on its part but that it was as a result of a disease. It was pleaded that the death was not the result of a personal injury by accident arising out of or in the cause of the employment with the defendant. The defendant states that after the death, it paid about $57,083.23 as ex-gratia payments to the plaintiff's family.
   
5. The defendant's counsel Ms. Renee Lal submitted that under s.5 of the Compensation to Relatives Act Cap. 29 the action must be brought by and in the name of the executor or administrator of the deceased. In this case the plaintiff has brought the action in its personal capacity. Ms. Lal stated that the plaintiff had been ordered to amend the claim but he has failed to abide by the order of the Court and as such no further time should be granted for an amendment to correct the defect.
   
6. Ms. R. Lal further submitted that the plaintiff in his personal capacity does not have a cause of action against the defendant. She further argued that the death of the deceased was as a result of the deceased's pre-existing medical condition.
   
7. Ms. Lal also stated that the defendant has made ex-gratia payments to the deceased family in the sum of $57,083.23.
   
8. Ms. Ratuvuku for the plaintiff stated that although the action is brought in the name of the plaintiff in its personal capacity, paragraph 1 of the claim clarifies that he brings the claim as the administrator of the estate of Unaisi Tunidau. Ms. Ratuvuku said that if they are allowed to do so, the claim could be amended.
   
9. It was also argued by the plaintiff's counsel that the death certificate of the deceased indicates that she died of hypertension. She stated that the hypertension was due to continuous work for 24 hours without proper rest.
   
10. The plaintiff's counsel further argued that any payment by the defendant is denied and disputed as ex-gratia payments. The monies were from the deceased's FNPF and/or insurance entitlements.
    
11. Having briefly reflected the background of the case and the parties' position, I shall now proceed to analyse the matter before me.
    
12. S.3 and s.5 of the Compensation to Relatives Act Cap. 29 are relevant.
    
13. S.3 states:-
    

"Where the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person or body of persons, incorporated or unincorporated, who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to crime".

14. S.5 states:-
    

"Every such action shall be brought by and in the name of the executor or administrator of the deceased person, and the court may give to the parties respectively for whom and for whose benefit the action was brought such damages as are considered proportioned to the injury resulting from the death".

15. Undoubtedly, under ss. 3 and 5, the deceased's estate has a right to make a claim under s.3 on the grounds that the deceased death was as a result of the employer's neglect. The claim must not be brought in any person's individual capacity but in his or her capacity as an executor or administrator. This means that the claim must have the name of the executor or administrator followed by the words "as administrator or executor in the estate of XX".
    
16. The plaintiff can correct the defect by an amendment. I have perused the entire file and I disagree with Ms. Lal that the Court had ever granted the plaintiff leave to amend its claim in accordance with s.5 of the Compensation to Relatives Act Cap. 29.
    
17. The other matters on the cause of death and payment are all matters of evidence which should be properly adduced at the trial because there exists a cause of action under s.3 of the Compensation to Relatives Act Cap. 29.
    
18. I grant the plaintiff 7 days to regularise the claim. I will fix a date for hearing of the claim before myself upon consultation with the counsel.
    
19. Each party to bear its own costs.
    

Anjala Wati

Judge

06.08.2012