This case relates to an incident that occurred on 19 February 2006 in which the respondent, Mody, allegedly consumed caustic liquid out of a bottle labeled as 'water' whilst he was on the SV Sea Spray owned by the appellant, South Sea Cruises Ltd (SSCL). Mody was on a holiday in Fiji with his family. As a result of consuming caustic soda, Mody suffered chemical burns to his mouth, throat, esophagus and stomach. He sued SSCL in the New South Wales Supreme Court in Australia where he was from.

SSCL sought to have its limitation of liability determined pursuant to s 178(1) of the Marine Act 1986 which gives domestic effect in Fiji to the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships 1957 (LLMC 1957). 

This is an appeal from the Court of Appeal decision dismissing SSCL's application to limit its liability (see CMI264).

SSCL applied for special leave to appeal on the grounds that (amongst others):

(a) The Court of Appeal erred in law in concluding that Mody's claim resulted from the actual fault or privity of SSCL. The Court was not entitled to reach this conclusion upon the hearing of a summary application for a Declaration for a Decree of Limitation of Liability. If the Court of Appeal was not satisfied that SCCL was entitled to the decree by way of the summary application, it should have directed SSCL to file further pleadings and that the action should take its normal course.
(b) The Court of Appeal erred in law in finding or assuming that SSCL had put before the Court below in affidavit form all the evidence that was available to it, and concluding that the SSCL's position was not going to get any stronger in the event the action was allowed to proceed.
(c) The Court of Appeal erred in law in deciding that the High Court had the discretion in its inherent jurisdiction and under O 18 r18 of the High Court Rules to strike out the writ of its own volition in the circumstances of the case.

Held: Special leave to appeal granted. However, appeal dismissed on the substantive grounds argued in appeal. Costs ordered in the High Court and the Court of Appeal to stand.

It is not disputed that the incident took place during the course of the chef's employment under SSCL and the injury to Mody was caused owing to his negligent conduct. It is trite law that, ever since the time of Sir John Holt the rule had come to be established that a master was liable not only for the acts done at his express command but also for those done by his implied command, this to be inferred from the general authority he had given his servant in his employment: Turbeville v Stamp (1697) 1 Ld Raym 264. While an express command is something to be proved by direct evidence, an implied command is something which has to be inferred from the servant's employment considered as a whole. It is that inference that SSCL had the onus to counter by evidence that, there was no fault or privity on its part if it was to come within the limitation of liability provisions of the Maritime Act 1986 (now replaced by the Maritime Transport Decree of 2013).

As the proceedings of 27 March 2009 reveal, all the answers were in the negative when questioned by the Court as to whether there was a written manual (as to the proceedings the chef was required to follow); as to whether there was any writing as to the safety procedures the chef was required to follow; as to whether there was an established safety procedure for any length of time or even whether anyone had given a training to the chef as to the said procedure.

In the light of that evidence the High Court Judge cannot be faulted for determining the matter on the basis of 'mere papers' in dismissing the summons or for striking out the writ.

If there was no further evidence to prove 'no fault or privity' on the part of SSCL, no purpose could have been served by paving the way for the plaintiff to proceed by way of a regular proceeding other than to permit SSCL to take another bite at the cherry. The High Court was not obliged to permit SSCL to proceed further by way of a regular action.