IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 122 of 2017

BETWEEN: SUDESH SHARMA of Lomawai, Sigatoka, businessman and farmer. 

PLAINTIFF

A N D: AIR PACIFIC LIMITED trading as FIJI AIRWAYS a limited liability
company having its registered office at Nasoso Road, Nadi.

DEFENDANT

Before:	 Master U.L. Mohamed Azhar
Counsels: Mr. Rattan for the Plaintiff
Mr. R. Singh for the Defendant

Date of Ruling: 14.12.2021

RULING
(Summons for striking out, reasonable cause of action, 
difference between defamation and malicious falsehood, 
vicarious liability and tests) 

01.	The plaintiff is a businessman in Australia and a farmer in Fiji. He sued the defendant company and claimed that, its employee falsely and maliciously reported him to police and caused damages to him. The plaintiff was in Fiji in 2015 and his daughter was holidaying with him. He was scheduled to fly to Australia on 09.07.2015 to attend his criminal case then pending in a local court in Australia which was listed on the following day, i.e. 10.07.2015.  Plaintiff’s daughter too was to fly out to Australia on the same day. However, their flight time was different as per their air tickets. Plaintiff’s flight was scheduled to depart at 07.15 am from Nadi to Sydney whilst his daughter’s flight was at 07.00 am on 09.07.2015. Plaintiff inquired the counter desk staff if his daughter could travel with him in his flight, and the counter desk staff replied it cannot be possible. Plaintiff then approached senior member of Defendant Company and made the same request. The said officer replied that, there was only one flight on that day from Nadi to Sydney and the flights scheduled to fly at 07.00 am and 07.15 am were one and same flight. The plaintiff then told the counter desk clerk of the defendant company there was only one flight and the staff must have known the same to give correct information to the customers. 

02.	The plaintiff alleged that, counter desk clerk of the defendant company falsely and maliciously reported to the police that, the plaintiff used foul and or abusive language to that staff member. The police from Airport took the plaintiff to the custody and inquired the matter. The plaintiff was then allowed to take his flight to Sydney. Whilst the plaintiff was to board the flight, he was told that he could not take the flight unless he was cleared by the police. The plaintiff returned home accordingly and was waiting for the police to take their steps. Two weeks later the police called the plaintiff and released him without laying any charge against him. The plaintiff was never charged by the police for this alleged incident. Finally, the plaintiff was able to fly out to Sydney on 27.07. 2015.

03.	Since the plaintiff could not attend the court on 10.07.2015, a bench warrant was issued against him. He surrendered himself to the police on 28.07.2015. He was in custody for two days and released on bail with strict conditions. A travel ban was issued on him; his passport was seized; and ordered to report to Ryde Police Station three times a week. The plaintiff alleged that the false and malicious report of the counter desk clerk of the defendant company caused damaged to him. He claimed special damages in sum of $ 21, 750 and statutory interest together with cost. The defendant acknowledged the writ and filed the summons pursuant to Order 18 rule 18 (a) (b) and (d) to strike out the plaintiff’s action without filling the statement of defence. The summons is supported by an affidavit sworn by customer service duty manager of the defendant company. The plaintiff opposed the summons and filed the affidavit in opposition which was replied by the defendant company.

04.	At hearing of summons, both counsels made oral submission later filed their written submissions. The law on striking out of pleadings is well settled. The Order 18 rule 18 of the High Court Rule gives the discretionary power to strike out the proceedings for the reasons mentioned therein. The said rule reads:

18 (1) The Court may at any stage of the proceedings order to be struck out or amend 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.

(2)	No evidence shall be admissible on an application under paragraph (1)(a).

(3)	This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading (emphasis added)

05.	The unambiguous wording of the above rule makes its effect very clear that, the power to strike out the pleadings is permissive and not mandatory. Even though the court is satisfied on any of those grounds mentioned in the above rule, the pleadings should not necessarily be struck out as the court can, still, order for amendment. The underlying rational is that, the access to justice should not, merely, be denied by glib use of summery procedure of peremptory striking out. 

06.	Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 held at page 1101 that; 

“Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause 	of action is a summary power which should be exercised only in plain and obvious 	cases. The authorities are collected in The Supreme Court Practice 1970 Vol ɪ, p 284, para 18/19/3, under the heading ‘Exercise of Powers under this Rule’ in the notes under Ord 18, r 19. One which might be added is Nagle v Feilden [1966] ɪ All ER 689 at 695, 697; [1966] 2 QB 633 at 648, 651. Reference has been made to four Recent cases: Rondel v Worsley [1967] 3 All ER 993, [1969] ɪ AC 191, Wiseman v Borneman [1969] 3 All ER 275, [1969] 3 WLR 706, Roy v Prior [1969] 3 All ER 1153, [1969] 3 WLR 635, and Schmidt vSecretary of State for Home Affairs [1969] ɪ All ER 904, [1969] 2 Ch 149. …………There was no departure from the principle that the order for striking out should only be made if it becomes plain and obvious that the claim or defence cannot succeed, but the procedural method was unusual in that there was a relatively long and elaborate instead of a short and summary hearing. It must be within the discretion of the courts to adopt this unusual procedural method in special cases where it is seen to be advantageous. But I do not think that there has been or should be any general change in the practice with regard to applications under the rule”. 

07.	Marsack J.A. in his concurring judgment in Attorney General v Halka [1972] 18 FLR 210, explained how the discretionary power to strike out should be exercised by the courts and held that:

“Following the decisions cited in the judgments of the Vice President and of the Judge of the Court below I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 18 should be very sparingly exercised, and only in exceptional cases. It should not be so exercised where legal questions of importance and difficulty are raised”.

08.	Every person has access to justice and has fundamental right to have his or her disputes determined by an independent and impartial court or tribunal. This fundamental right, guaranteed by the supreme law of the country, should not lightly be taken away unless the case is unarguable. Salmon LJ said in Nagle v Feilden [1966] ɪ All ER 689 at 697:

‘It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable’. 

09.	Accordingly, the general principle is that the order for striking out should only be made if it becomes plain and obvious that the claim or defence cannot succeed. The courts cannot strike out an action for the reason that, it is weak or the plaintiff or the defendant is unlikely to succeed in his or her claim or defence. 

10.	The defendant’s summons in this case is based on three grounds.  First is that, the pleadings do not disclose reasonable cause of action. Second is that, the plaintiff’s action is scandalous, frivolous and vexatious. Third is that, it is otherwise abuse of the process of the court. 

11.	Whilst supporting the first ground, the counsel for the defendant company submitted that, the pleadings neither show a cause of action for injurious falsehood, nor for defamation. The counsel cited the decision of Australian High Court in Palmer-Bruyn and Parker Ltd v Parsons [2001] HCA 69; 76 ALJR 163 and submitted that, the plaintiff failed to plead the four elements of injurious falsehood. In that case, Gummow J cited the decision of Bowen LJ's judgment in Ratcliffe v Evans   [1892] 2 QB 524 which laid down four elements of cause action for malicious/injurious falsehood. They are (i) a false statement of or concerning the plaintiff's goods or business; (ii) publication of that statement by the defendant to a third person; (iii) malice on the part of the defendant; and (iv) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement. In addition, the counsel cited several decisions which require the actual words of libel and slender to be pleaded in cases for defamation, and submitted that, the plaintiff’s pleadings do not disclose the cause of action for defamation too, as he failed to plead the verbatim of alleged defamatory words or statement. 
 
12.	The court has to examine the allegations in the pleadings to come to a conclusion on reasonable cause of action. No evidence shall be admissible in an application filed under paragraph (1) (a). His Lordship the former Chief Justice A.H.C.T. Gates (as His Lordship then was) in Razak v. Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC208.1998L (23 February 2005) held that:
“To establish that the pleadings disclose no reasonable cause of action, regard cannot be had to any affidavit material [Order 18 r.18 (2)]. It is the allegations in the pleadings alone that are to be examined: Republic of Peru v Peruvian Guano Company (1887) 36 Ch.D 489 at p.498”.
13.	The plaintiff alleges in his statement of claim that, counter desk staff of the defendant company falsely and maliciously reported to the police against him that, he used foul and abusive words on that particular day when he was at Nadi International Airport to check in to the Sydney bound flight. He was prevented from flying on that day as the police was to take action against him, and finally the police did not charge him. He claims damages from the defendant company for the alleged false report of the person claimed to be an employee of the defendant company. The question is whether these pleadings do disclose any reasonable cause of action against the defendant company.

14.	Publication of a false report or statement mainly gives rise to two causes of action. First is the claim for defamation and the second is the claim for malicious or injurious falsehood. The differences between these two claims are that, the claimant in malicious falsehood is not required to prove damages to reputation, and the ‘single meaning rule’ does not apply in claims for malicious falsehood. Clearly, the plaintiff in this case neither produced the verbatim of alleged false publication, nor did he claim damages for injury to reputation. Accordingly, this is not a case for defamation. 

15.	Even though an alleged statement does not cast an aspersion upon the character of a person sufficient to give rise to an action for slender or libel, the claimant still can have a claim for malicious falsehood, if such statement is maliciously published and is calculated, in the ordinary course of things, to produce, and or it produces actual damage. Bowen L.J in Ratcliffe v Evans [1892] 2 QB 524 said at pages 527 and 528 that:

That an action will lie for written or oral falsehood, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or slender, but an action on the case for damage willfully and intentionally done without just occasion or excuse, analogous to an action for slender of title.

16.	The tort of malicious falsehood originally used to protect persons from unwarranted attack on their title to land and it was called ‘slender of title’. Later its ambit and utility were expanded to include the other areas and called by different names depending on the context it was applied, such as ‘slender of goods’  and ‘trade libel’ (see: Street on Tort, 14th Edition, pages 376 and 377). However the limit of this tort is not confined to above categories, but it can include other areas too when the words injure a person without damaging his reputation. Sir Donald Nicholls V.C in Joyce v Sengupta and Another [1993] 1 All ER 897 explained the difference between defamation and malicious falsehood and the scope of the tort of malicious falsehood at page 901 that:

I should comment briefly on the difference between the defamation and malicious falsehood. The remedy provided by the law for the words which injure a person’s reputation is defamation. Words may also injure a person without damaging his reputation.  An example would be a claim that a seller of goods or land is not the true owner. Another example would be a false assertion that a person has closed down his business. Such claims would not necessarily damage the reputation of those concerned. The remedy provided for this is malicious falsehood, sometimes called injurious falsehood or trade libel. This cause of action embraces particular types of malicious falsehood such as slender of title and slender of goods, but it is not confined to those headings.

17.	Falsity and malice are the essential elements in action for malicious falsehood. The claimant has the burden to prove both of them. The other important element is the proof of financial loss. If a claimant is able to prove these elements as required by the law, he or she will be entitled for remedy. Furthermore, the rigour of requirement to prove the damages had already been relaxed by the statute and the claimant is relieved from proving damages if they fall under any of exceptions provided in section 3 (1) of English Defamation Act 1952. Sir Donald Nicholls V.C in Joyce v Sengupta and Another (supra) further held at page 901 that:

Falsity is an essential ingredient of this tort. The plaintiff must establish the untruth of the statement of which he complains. Malice is another essential ingredient…….. Further, since the object of this cause of action is to provide a person with a remedy for a false statement made maliciously which has caused him damage, at common law proof of financial loss as another essential ingredient. The rigour of this requirement was relaxed by statute………….if a plaintiff establishes that the defendant maliciously made a false statement which has caused him financial damage or in respect of which he is relieved from proving damage by the Defamation Act 1952, the law gives him a remedy. The false statement may also be defamatory, or it may not………it need not to be defamatory. Conversely, the fact that the statement is defamatory does not exclude a cause of action for malicious falsehood, although the law will ensure that a plaintiff does not recover damages twice over for the same loss.

18.	The plaintiff in this case too complains of the words of alleged employee of the defendant company and pleads that, those words injured him and caused damages. According to his pleadings, the damages he claims are those that actually incurred to him due to those alleged words. Clearly, he does not claim any damages for aspersion of his character, and it is not necessary for those words to be defamatory in order to sue for malicious falsehood. The counsel for the defendant submitted that, falsity and malice are not pleaded by the plaintiff. However, the plaintiff in paragraph 12 of his statement of claim alleged that, the counter desk staff of the defendant company falsely and maliciously reported to police that, the plaintiff used foul and abusive language. 

19.	The counsel for the defendant further submitted that, plaintiff does not allege the ill-defined ‘false report’ was made in connection with his goods or business, and on contrary, allegation appears to be about the conduct of the plaintiff himself. In other words, the defendant admitted existence of this ‘alleged false report’ about the plaintiff that was made by an officer, claimed by the plaintiff to be an employee of the defendant company. The question that remains for determination is, whether this ‘alleged false report’ falls under ‘actionable malicious falsehood’ or not, as Sir Donald Nicholls V.C expounded in Joyce v Sengupta and Another (supra) that, cause of action for malicious falsehood is not limited only to certain headings such as slender of goods and slender of title. As long as this question remains undetermined by a trial judge, this court cannot strike out plaintiff’s action on a peremptory manner on the basis that, the plaintiff’s pleadings do not disclose reasonable cause of action. 

20.	The counsel for the defendant company further submitted that, there is no causal link pleaded between the alleged damage and the report complained of. As mentioned above, a plaintiff must establish the damage in an action for malicious falsehood; however, English Defamation Act 1952 relaxed this requirement by providing some exceptions in section 3 of the Act. The Defamation Act 1971 (Cap 34) of Fiji is the verbatim of English Defamation Act 1952. This local legislation has the similar provisions in its section 11(1) which reads:

Slander of title, etc.
11.-(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication. (Emphasis added).
21.	According to above provisions, it is not necessary to allege or prove the special damages in case of slender of title or slender of goods or other malicious falsehood if the alleged words fall under either of exceptions. In this case, the plaintiff claimed special damages alleging that, those damages were caused by the ‘alleged false report’. It is the duty of the trial judge to determine whether those words in that ‘alleged false report’ fall under the above exceptions or not, and or whether the plaintiff is relieved from alleging or proving his special damages as provided by the above provisions. This court, which only considers the mere allegations in the pleadings to determine existence of reasonable cause of action, cannot go to the merits of the matter and decide the link between the damages and the alleged report, as the counsel for the defendant company argued, when the statute clearly set out the circumstances which relieve the plaintiff from alleging or proving damages. As a result, I decide that, the pleadings disclose a reasonable cause of action for malicious falsehood and they cannot be struck out, exercising the jurisdiction which is sparingly used only when the pleadings are obviously unsustainable.   

22.	The instant summons is also based on other two grounds, namely, frivolous and vexatious and abuse of the process of the court. If the action is filed without serious purpose and having no use, but intended to annoy or harass the other party, it is frivolous and vexatious. Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481, said at 491 that:

1. 	Proceedings are vexatious if they instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.	They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. 	They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

23.	The fair trial is fundamental to the rule of law and to democracy itself. The right to fair trial applies to both criminal and civil cases and it is absolute and cannot be limited. It requires a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Thus the courts are vested with the power to strike out any such proceeding or claim which is detrimental to or delays the fair trial. Likewise, the rule of law and the natural justice require that, every person has access to the justice and has fundamental right to have his or her disputes determined by an independent and impartial court or tribunal. However, this access should be used with the good faith and the motive untainted with malice. If any action is prosecuted with the ulterior purposes or the machinery of the court is used as a mean of vexatious or oppression, it is abuse of process. The courts have inherent power to combat any form of such abuses. 

24.	Halsbury's Laws of England (4th Ed) Vol. 37 explains the abuse of process in para 434 which reads:

"An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

25.	His Lordship the former Chief Justice A.H.C.T. GATES in Razak v Fiji Sugar Corporation Ltd (supra) held that:
“It would be an abuse of process for the plaintiff to bring a second action for the same cause of action after disobedience of peremptory orders had resulted in the dismissal of the first action: Janov v Morris [1981] 3 All ER 780. It is said the process is misused thereby. Re-litigating a question, even though the matter is not strictly res judicata has been held to be an abuse of process: Stephenson v Garnett [1898] 1 QB 677 CA. In that case the suitor was the same person and he sought to re-open a matter already decided against him”.
26.	In the case of Goldsmith v Sperrings Ltd [1977] 2 All ER 566, Lord Denning said as follows at 574:

“In a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abuse when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer”.

27.	There is nothing in this case which can suggest that, the plaintiff sued the defendant company in order to annoy or harass it. Nor it seems that, this action is for collateral purpose or aimed at serving extortion or oppression or exerting pressure so as to achieve an improper end. There cannot be any such reason for an individual to sue an established air carrier unless such person has some kind of grievance against it. It cannot be said for sure, at this moment, that the plaintiff will be able to prove his case against the defendant company so as to get remedy for his alleged grievance. It depends on how he fulfills the necessary requirements for a cause of action for malicious falsehood. However, it cannot be said now that his action is frivolous or vexatious or abuse of the process of the court.
   
28.	The instant summon filed by the defendant also alleged that the plaintiff sued the wrong defendant. It is stated in the supporting affidavit that, the alleged ‘counter desk staff’ was an employee of Air Terminal Services Limited (ATS) which is an independent contractor, and not of the defendant company. Therefore, it is the submission of the counsel for the defendant company that, the vicarious liability does not lie on the defendant company. On the other hand, the plaintiff in his affidavit clearly stated that, he could differentiate the staff of ATS and the defendant company by their uniform and alleged that, it was a counter desk staff of the defendant company, who falsely and maliciously reported to the police against him. It has therefore become necessary to examine the doctrine of vicarious liability to decide this issue.

29.	The doctrine of vicarious liability represents not a tort, but a rule of responsibility which renders one person liable for the torts committed by another. Most common application of vicarious liability is in employer and employee relationship. The employers are held liable for what their employees did for their (employers’) purposes and benefit. The law either considers that the employees’ actions are those of the employers, or the law says that the employers are liable for the actions of their employees. Lord Justice Rix in Viasystems (Tyneside) v Thermal Transfer (Northern) Ltd [2006] QB 510 stated at paragraph 55 that:

The concept of vicarious liability does not depend on the employer's fault but on his role. Liability is imposed by a policy of the law upon an employer, even though he is not personally at fault, on the basis, generally speaking, that those who set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently. 

30.	In order to establish vicarious liability, firstly the wrongdoer must be the employee as opposed to an independent contractor, secondly, the employee must have committed the tort, and finally the tort must have been committed in the course of the employment. The underlying legal policy was explained by House of Lords in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366. Lord Nicholls held at paragraph 21 of his speech that: 
The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.

31.	The issue before the House of Lords in that case was whether dishonest conduct by a solicitor could involve the firm in liability under section 10 of the Partnership Act 1890 as having been carried on "in the ordinary course of the business of the firm". Lord Nicholls suggested that the wrongful conduct must be so closely connected with the acts the employee was authorized to do that the wrongful conduct might "fairly and properly be regarded" as done in the ordinary course of employment. His Lordship further held at paragraphs 22 and 23 that
22. This policy reason dictates that liability for agents should not be strictly confined to acts done with the employer's authority. Negligence can be expected to occur from time to time. Everyone makes mistakes at times Additionally, it is a fact of life, and therefore to be expected by those who carry on businesses, that sometimes their agents may exceed the bounds of their authority or even defy express instructions. It is fair to allocate risk of losses thus arising to the businesses rather than leave those wronged with the sole remedy, of doubtful value, against the individual employee who committed the wrong. To this end, the law has given the concept of 'ordinary course of employment' an extended scope.
    23. If, then, authority is not the touchstone, what is? Lord Denning MR once said that on this question the cases are baffling: see Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 724. Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment. Lord Millett said as much in Lister v Hesley Hall Ltd [2002] 1 AC 215, 245. So did Lord Steyn, at pp 223-224 and 230. McLachlin J said, in Bazley v Curry (1999) 174 DLR (4th) 45, 62:
'the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization).' (Emphasis is original)
32.	It clearly shows that, law on vicarious liability has been developing. Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1, stated in paragraph 19 of the judgment that ‘the law on vicarious liability is on the move’ and listed some propositions established by the court over the years in paragraph 20. It reads that:
The courts have developed the law of vicarious liability by establishing the following propositions:
i) It is possible for an unincorporated association to be vicariously liable for the tortious acts of one or more of its members: Heaton's Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15, 99; Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20, 66-7; Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366.
ii) D2 may be vicariously liable for the tortious act of D1 even though the act in question constitutes a violation of the duty owed to D2 by D1 and even if the act in question is a criminal offence: Morris v CW Martin & Sons Ltd [1966] 1 QB 716; Dubai Aluminium; Brink's Global Services v Igrox [2010] EWCA Civ 1207; [2011] IRLR 343.
iii) Vicarious liability can even extend to liability for a criminal act of sexual assault: Lister v Hesley Hall [2001] UKHL 22; [2002] 1 AC 215.
iv) It is possible for two different defendants, D2 and D3, each to be vicariously liable for the single tortious act of D1: Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510.
33.	The courts have moved from strict interpretation of employer and employee relationship based on contract of employment and started to examine the relationship between first and second defendant and the connection between second defendant and the act or omission of first defendant. Lord Justice Hughes in Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & Others [2010] EWCA Civ 1106, observed that, the test requires the synthesis of two stages and held at paragraph 37 that:

The extent of vicarious liability is therefore much more difficult to define than is the root rationale for it when it exists. Whether it exists or not in any particular case will depend on a two-stage enquiry. The first stage is to examine the relationship between D1 and D2. The second is to examine the connection between D2 and the act or omission of D1 which is in question. Both are fact sensitive, and it is a judgment upon a synthesis of the two which is required.

34.	The two stages test expounded by Lord Justice Hughes in that case was followed by Lord Justice Ward in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938. In this later case, the preliminary issue was whether the Diocesan Trust could be vicariously liable for acts of sexual abuse committed by a parish priest in the diocese. The court, by a majority, held Diocesan Trust was vicariously liable. Lord Justice Ward held at paragraph 73 that:  
I confess I have found this difficult to decide. I see the force of the arguments both ways. I can conclude that the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service. The test I set myself is whether the relationship of the bishop and Father Baldwin is so close in character to one of employer/employee that it is just and fair to hold the employer vicariously liable.
35.	United Kingdom Supreme Court in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1, having considered several authorities including the authorities from Australia and Canada, unanimously adopted the two stages test of Lord Justice Hughes, and test of close connection laid down by House of Lords in Dubai Aluminium Co Ltd v Salaam (supra) to arrive at its decision that, the Institute, even though it did not own the school, should share the vicarious liability for the sexual abuse committed by brother teachers. 

36.	The supporting affidavit filed on 05.09.2017 on behalf of the defendant company states in paragraph 5 that the checking services of passengers of defendant company are handled exclusively by Air Terminal Services (Fiji) Limited (ATS) as an independent contractor. Further in paragraph 17 of that affidavit the deponent identified one Mr. Tamani of Air Terminal Services (Fiji) Limited as the person with whom the plaintiff had conversation regarding his ticket. The deponent continued and stated that, Mr. Tamani reported to his ATS Supervisor and he in turn reported the matter to police. The plaintiff vehemently rejected that, he had dispute with an ATS staff, but clearly stated that, he could identify them by their uniform and it was an employee of the defendant company. At this juncture, two necessary points to be considered in relation to the claim of the defendant company. 

37.	Firstly, the contention of the defendant company that, the ATS staff - an independent contractor - reported plaintiff to the police is disputed and the court cannot come to a conclusion merely examining two contradictory averments of both parties. Secondly, even if it is accepted that an ATS staff was an independent contractor, the court cannot hold that, the plaintiff sued the wrong defendant and strike out his action, because, the common law courts have moved from strict interpretation of employment contracts and developed various tests to determine vicarious liability, as discussed above. Two stages test of Lord Justice Hughes, and test of close connection laid down by House of Lords should be examined by the court before coming to any conclusion. 

38.	The court has to examine the relationship between the defendant and ATS and its employees; and the connection between the defendant and act or omission of employee of ATS. All these issues to be determined by the trial judge and not by this court in a summary manner on mere affidavits of the parties. It is the settled law that, the jurisdiction to strike out proceedings under Order 18 rule 18 should not be exercised where legal questions of importance and difficulty are raised.

39.	For the reasons mentioned above, I am firm on my view that, this is not a plain and obvious case. There are complicated legal issues to be determined by a trial judge. It follows that this court should not summarily intervene in this matter and strike out the plaintiff’s action against the defendant company.
 
40.	In result, I make the following orders,

a.	The summons filed on behalf of the defendant company is dismissed, and

b.	The defendant company should pay a summarily assessed cost of $ 1000 to the plaintiff within a month from today. 

U.L Mohamed Azhar
Master of the High Court

At Lautoka
14.12.2021