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Kumar v Commissioner of Police [2006] FJCA 10; ABU0059.2004S (10 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0059 of 2004S
(High Court Civil Action HBC0003 of 2001S)

BETWEEN:

MUNI LATA KUMAR
Appellant

AND:

COMMISSIONER OF POLICE
First Respondent

COMMISSIONER OF PRISONS
Second Respondent

ATTORNEY GENERAL OF FIJI
Third Respondent

Coram: Ward, President
Tompkins, JA
Wood, JA

Hearing: Tuesday, 7 March 2006, Suva

Counsel: J. Cameron for the Appellant
K .T. Keteca and S. Seruilagilagi for the Respondents

Date of Judgment: Friday, 10 March 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] The appellant, as administratrix of her husband’s estate, brought proceedings against the respondents claiming damages for the death of her husband on 8 August 2000. The claim was based on the allegation that her husband's death was caused by the negligence of the first and second respondent.

[2] By his judgment delivered on 5 February 2004 Scott J dismissed the appellant’s claims against all respondents. From that decision the appellants appealed to this Court. By its judgment delivered on 29 July 2005 this Court dismissed the appeal.

[3] The appellant has now applied for an extension of time for applying for leave to appeal to the Supreme Court and, if that application be granted, for leave to appeal to the Supreme Court.

Factual background

[4] The events giving rise to the claim are set out in detail in the judgements of the High Court and this Court. We do not repeat them in full. In brief, what occurred is one of the consequences of the attempted coup of 19 May 2000. Some days later there was a breakout of prisoners from the prison. Amongst those escaping were three men, one of whom, Nimacere, was said to be a notorious criminal. The three escaped prisoners made their way to the Monosavu Dam which had been taken over by persons associated with the coup.

[5] During the course of the disturbances road blocks were set up by the army and the police. One of the road blocks was at Sawani. On the night of 7 August 2000 the deceased was told by a special constable that he and the constable were to drive a police vehicle to the roadblock. As result of instructions received from an army sergeant on arrival, the deceased, the special constable, the sergeant and four armed soldiers drove to another roadblock. While the soldiers were investigating, shooting broke out. In the course of the events that followed, the deceased was killed by the escapee Nimacere.

The claims against the respondents

[6] The claim formulated against the Commissioner of Police was in negligence and particulars were as follows:

1. Failing to provide adequate protection from armed attacks such as bullet proof vests or helmet;
   
2. Failing to provide competent Commander or Supervisor to encounter gun shots or attacks; (sic)
   
3. Failing to provide the deceased with adequate or suitable protection by way of transport to carry out the work in safety especially protection of the vehicles used against the armed rebels or prisoners;
   
4. Directing the deceased to carry out his duties when it knew or ought to have known that it was unsafe and dangerous for him to approach and attempt to recapture armed rebels or the prisoners;
   
5. Failing to take reasonable care to prevent the possible injury and threat to life from dangers of which it knew or ought to have known;
   
6. Failing to provide a safe method of dealing with armed rebels or prisoners;
   
7. Failing to provide and or maintain a safe system of working at the Police Station and or place of employment.
   

[7] The claim formulated against the Commissioner of Prisons was in negligence and breach of contract. Particulars were as follows:

1. Failing to provide proper security and custody of the prisoners;
   
2. Failing to recapture the escaped prisoners;
   
3. Failing to exercise indirect and or direct control over the escaped prisoners;
   
4. Failing to provide safe method of recapturing the prisoners;
   
5. Exposing the deceased to a risk or injury or death which it knew or ought to have known. (sic)
   
6. Failure to provide with adequate or suitable protection to enable the deceased to carry out the work in safety or to protect the deceased from possible gun shots;
   
7. Directing and or requesting the deceased to carry out the said work when it knew or ought to have known that it was unsafe and dangerous for the deceased to capture armed civilians and or escaped prisoners.
   

[8] The claim in contract was not pursued.

The grounds of appeal to the Court of Appeal

[9] There were eight grounds set out in the notice of appeal. We were advised that the appellant did not proceed with the first three. The remaining grounds were:

4. That the learned Judge erred in law and in fact in that he held that the first Respondent the Commissioner of Police, did not owe Corporal Raj Kumar ('the deceased'), a duty of care in the circumstances prevailing at the time of his death; and
   
5. That the learned Judge erred in law and in fact in that he held that even if the first Respondent had owed the deceased a duty of care in the circumstances that there had been no breach of that duty; when on the undisputed evidence before the Court the first Respondent had failed to issue instructions to police officers, including the deceased, that during the state of social and political instability prevailing at the time, they were not to engage armed insurgents but were to leave such operations to armed military personnel.
   
6. That the learned Judge erred in law and in fact in that he held that the second Respondent, the Commissioner of Prisons, did not owe police officers, including the deceased, a duty of care to ensure that, during the state of social and political instability prevailing at the time, they were not exposed to unreasonable risk by the escape of potentially dangerous prisoners, such as the prisoner, Nimacere, who shot and killed the deceased; when the second Respondent led no evidence as to the measures which he had taken to prevent such escapes, or as to the circumstances in which the escapes had occurred notwithstanding such measures; and
   
7. That the learned Judge erred in law and in fact in that he failed correctly to apply the inferences required by the legal principles subsumed under the maxim res ipsa loquitur in the light of the pleadings and the evidence before him; and
   
8. That the learned Judge made findings of fact based on matters which were not properly in evidence before him, or were not supported by such evidence as was before him.
   

The application for leave to appeal to the Supreme Court

[10] It is convenient to deal first with this application. The questions submitted by the appellant to be of significant public importance were:

1. Where a plaintiff pleads negligence on the part of a defendant causing injury to the plaintiff, and leads evidence prima facie consistent with want of care on the defendant's part causing the injury, and the defendant, although in possession of all the relevant facts, provides no evidence of having taken all reasonable care, is the plaintiff entitled to judgment on the basis of res ipsa loquitur?
   
2. If so was the appellant entitled to judgment in her favour against the second respondent in the circumstances of the present case?
   
3. Where an employee alleges negligence against an employer causing injury to the employee by failing to provide a safe system of work, is the employee obliged to show that it was foreseeable that he would suffer the injury which was in fact suffered, or is it sufficient to show that injury of the kind suffered was foreseeable?
   
4. If it was sufficient to show injury of the kind suffered, was the appellant entitled to judgment in her favour against the first respondent in the circumstances of the present case?
   

[11] The second and fourth questions are consequential upon the first and third. It is the first and third questions that set out the issues the appellant submits are of significant public importance.

Conclusion on the application for leave to appeal

[12] We are satisfied that in the unusual circumstances of this case significant issues arise concerning the extent and nature of the duty of care that may have been owed by either or both respondent to the deceased, the proper test to apply in considering whether the doctrine of res ipsa loquitur applies, the proper test to apply in determining whether what occurred to the deceased was reasonably foreseeable by either or both respondents and whether public policy considerations precluded recovery, either so far as they were relevant to the duty of care, or otherwise. Taken together, these give rise to questions of significant public importance sufficient to justify the grant of leave.

The application to extend time

[13] The judgment of the Court of Appeal was delivered on 29 July 2005. Under s 65 (1) of the Court of Appeal Rules, an application for leave to appeal must be filed within 28 days of the delivery of the judgment against which leave to appeal is sought. Thus the last day for filing the appeal was 26 August 2005. The application was filed on 14 November 2005, 80 days out the time.

[14] The principles upon which the Court acts in considering whether to grant an extension of time involve consideration of the length of the delay, the reason for the delay, the chances of the application for leave to appeal succeeding if time be extended, and the likely prejudice to the parties from granting or withholding leave.

[15] Ultimately the Court has to consider whether it is in the interests of justice, having regard to the whole history of the case, to extend the time for filing an application for leave to appeal to the Supreme Court: Avery v No 2 PSA Board [1973] NZLR 86, 91 (CA).

[16] As to the reason for the delay the appellant has filed an affidavit deposing that sometime in mid July 2005 her sister invited her to Australia to her daughter’s wedding. She left on 1 August 2005 without being aware that judgment had been delivered two days before. She returned to Fiji on 20 October 2005, contacted her solicitors within the next one or two days and learned the result of the appeal. The solicitors obtained an opinion from senior counsel and on receipt of that opinion these applications were filed.

[17] The appellant has given a reasonable explanation of the delay. The respondents have not suffered any prejudice as the result of the delay. For the reasons we have given, if time be extended, it is appropriate for the application for leave to appeal to be granted. Having regard to the whole history of the case, we are satisfied that it is in the interests of justice that leave should be granted to the appellant extending the time for filing of the application for leave to appeal to the Supreme Court to the date when that application was filed.

Result

[18] The time for filing the application for leave to appeal to the Supreme Court is extended to the date when that application. The application for leave to appeal to the Supreme Court is also granted.

[19] As the application to extend the time involves the granting of an indulgence to the appellant and as the appellant has succeeded on the application for leave to appeal, it is appropriate that there be no order for costs.

Ward, President
Tompkins, JA
Wood, JA

Solicitors:

Messrs. Maharaj, Chandra and Associates, Suva for the Appellant
Office of the Attorney, General, Suva for the Respondents