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Sharma v Sabolalevu [1995] FJHC 110; Hbc0539d.94s (30 June 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 539 OF 1994

Between:

SURYA DEO SHARMA
s/o Uma Shankar
Plaintiff

- and -

1. JOVESA SABOLALEVU
2. THE ATTORNEY GENERAL IN AND FOR FIJI
3. NATIONAL INSURANCE COMPANY OF FIJI LIMITED
Defendants

Mr. R. Chand for the Plaintiff
Mr. D. Singh and Mr. A. Rokotinaviti for the Defendants

DECISION

By Motion dated 14 November 1994 the Plaintiff seeks an order that leave be granted to him to proceed with the Writ for a claim for damages for personal injury against the first and second defendants (action having been withdrawn against the third defendant) and extending time for that purpose pursuant to section 17 of the Limitation Act Cap. 35 (hereinafter referred to as the 'Act'). In support of the motion he filed affidavits sworn 13 October 1994 and 10 May 1995.

THE FACTS

The facts, very briefly, are that on 6 April 1990 as a result of a collision between the vehicle Regd. No. BV 398 driven by the Plaintiff and motor vehicle Regd No. CC 179 driven by the first defendant (D1) and owned by the second defendant (D2) on Dawasamu Road, Tailevu, the Plaintiff received severe injuries. The Plaintiff was at that time a commercial van operator for the purpose of carriage of passengers and goods in Tailevu. The said van was owned by his wife Bijma Wati Sharma.

The details pertaining to the injury and the treatment he received are set out in paragraph 8 of his said affidavit sworn 13 October 1994 as follows:-

That I received severe injuries in particular onto my right leg which had compound multiple fractures. This leg required internal fixation with iron rod pinned and affixed to my hip bone and further fixation of pins was done to my knee cap as this was damaged. I then suffered post operative wound infection after the fixation of pins and rods on 12th April, 1990. I suffered constant and continuous headache and pain onto my right leg from hip downwards and also pains caused by internal fixation. I was readmitted on 28th day of July, 1991 for further post operative measures and was discharged on 2nd day of August, 1991. I could not walk and was put on crutches which he used continuously for 18 months. My right leg had greatly swollen from the knee upwards and the injuries had not healed completely as I still suffer from continuous and persistent pain and is still on pain killers today. Copies of letters communicated to my Solicitors by the Colonial War Memorial Hospital to whom a medical report was requested evidences the fact as to my continuous sick state resulting from the accident. Annexed herewith dated 21st February, 1992 marked 'A' and letter dated 24th May, 1991 marked 'B' respectively.

The said annexure 'B' dated 24.5.91 and addressed to Mr. Chand stated:

Thank you for your letter dated 11/4/91

Mr. Sharma is booked for re-admission to Hospital on 11/6/91 on further treatment.

Therefore, a complete report cannot be submit now and will await his treatment result on 11/6/91.

And the said annexure 'A' dated 21.2.92 and also addressed to Mr. Chand stated as follows:

The above man was seen by us on 6/4/90 after being involved in a motor vehicle accident when he sustained a compound fracture to his right femur. This was treated by internal fixation which was done on 12/4/90. He suffered a wound infection post-operatively which eventually healed. The internal fixation was eventually removed on 29/7/91 because it was causing some pain. He was last seen on 19/9/91 when he was still complaining of right knee pain.

I calculate his permanent disability at 20% (twenty). His dates of admission were 6/4/90-9/5/90 and 28/7/91-2/8/91.

The Plaintiff further states in his affidavit that "continuous ill-health" prevented him from instituting proceedings in time; also, full particulars of the "accident and injury" were not supplied to his solicitors by the "relevant authorities" until fairly late. He further states that he was acquitted of a charge of dangerous driving on 21 July 1994 and it was not until then that he was able to get police and Court records. He said that he was "incapacitated physically and medically" and hence the delay in bringing this action.

THE LIMITATION ACT PROVISIONS

I set out below the sections of the Act so far as they are relevant to the present application.

In this case the action had already been commenced by writ on 11 November 1994.

Now the Plaintiff applies for leave of the Court under Section 17 for the purposes of section 16 of the Act which provides for extension of time limit for actions in respect of personal injuries. Under section 17(3) it is provided as follows:

"(3) Where such an application is made after the commencement of a relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient -

(a) to establish that cause of action, apart from any defence under subsection (1) of section 4; and

(b) to fulfil the requirements of subsection (3) of section 16 in relation to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 4."

(emphasis added)

Under section 4(1) of the Act there is provision for the bringing of certain types action within a certain period and in relation to damages for personal injuries it relevantly provides:

"4 - (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(a) .....

(b) .....

(c) .....

(d) actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:

Provided that -

(i) in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years;

(ii) ..............."

(emphasis added)

AND s16 provides for extension of time limit for actions in respect of personal injuries. It is as follows in so far as it is relevant:-

"(3) The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which -

(a) either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period; and

(b) in either case, was a date not earlier than twelve months before the date on which the action was brought.

(4) For the purposes of subsection (3), reference to the three-year period relating to a cause of action means a reference to the period of three years from the date on which that cause of action accrued:" (emphasis added)

COUNSELS' SUBMISSIONS

Both counsel argued the matter before me.

Mr. Chand says, firstly, that since the defendants (D1 and D2) have not raised this issue of limitation period in their Statement of Defence filed on 30 March 1995 they cannot rely on it. Secondly, relying on THOMPSON v BROWN (1981) 1 WLR 747 at 748 that since it was only on 21 February 1992 that the Plaintiff received the medical report and it was then that he came to know that the injuries were "significant", it is from that date therefore he says that the three year period should be counted. Thirdly, he submits that the defendants are not "prejudiced" in any way and also there is no mention of it to that effect in the Defendants' Reply and Defence.

On the other hand, for the defendants, Mr. Singh's submission is that time begins to run from the date of accident and that on the facts of this case the Plaintiff's Solicitors should have brought this action within the three year period. He relies on the case of PERMAL s/o Veliappan and KRISHNA SAMI and LORAINI TINAI SAWETA (Civ. App. No. 19/85 FCA). He says that the Plaintiff was aware of the type, nature and extent of injuries on him on said 6 April 1990 and the provisions of s4(1)(d), s16 and s17 of the Act will not, on the facts, assist him. He therefore says that the claim is statute-barred.

CONSIDERATION OF THE ISSUE

As required under section 4(1) of the Act, this action which is a claim for personal injuries, should have been issued (though not necessarily served) within three years from the date of the accident. The accident was on 6 April 1990 and the three-year period would have expired on 6 April 1993.

It is abundantly clear from the Plaintiff's affidavit in said paragraph 8 that he was injured and treated on 12 April 1990 and then re-admitted to hospital on 28 July 1991. He was discharged on 2 August 1991. Even the medical report in the said annexure 'A' dated 21.2.92 was received well within the limitation period. The Plaintiff still had 13 months to issue the writ to be within time but he did not do so until 33 months afterwards. He is actually about 19 months out of time (if taken from the date of the expiry of the three-year period).

The issue in this case has to be determined in the light of the facts and the law on the subject of limitation of period within which to bring an action.

In view of the provisions of the Act and on the various authorities I find that the Plaintiff cannot hope to succeed in his application for disapplying s 4(1) of the Act.

THE LAW

As already stated the period for personal injury actions is three years (S 4(1)).

Before I proceed to deal with this aspect, I would consider the matter of pleadings raised by Mr. Chand.

The defendants' Statement of Defence does not plead a limitation although it is up to them to do so. (KENNETT v BROWN (1980) 1 WLR 582, C.A.; HOLLAND v YATES BUILDING CO. LTD, The Times 5 December 1989). Also the Plaintiff did not plead in his Statement of Claim that he is out of time in instituting the action. However, since the Plaintiff has applied for extension by virtue of the provisions of s17 of the Act, the defendants are entitled to argue the point in issue and are not precluded from doing so merely because they have not pleaded it. The section does provide for application ex parte but I decided to hear it inter partes.

Mr. Singh relied on PERMAL (supra) in opposing the application. There the application was refused in similar circumstances. It was also a claim for personal injuries arising out of a motor accident issued more than four years after the accident occurred. As in the present case, there the Statement of Claim did not contain statements indicating any reasons why the action had not been instituted before the expiration of the three year limitation period.

I have already outlined hereabove the Plaintiff's reasons for not instituting his action within the limitation period although he was well aware who the defendants were and also his solicitor had received the medical report before the expiry of the limitation period. The Court in PERMAL said (page 5 of cyclostyled judgment) that under s17(3) the ingredient required to be met was that the plaintiff:

"... had no knowledge, before instituting the action that the matters constituting her cause of action had occurred on a date which would afford a defence to the action namely a date more then 3 years before commencing the action."

In this case there was nothing outside the Plaintiff's knowledge in regard to matters constituting his cause of action.

Mr. Chand laid great stress on the word "significant" but he fails to realize that this is not one of the factors that has to be considered under the Act. But the word "knowledge" is contained in the relevant section of the Act and the meaning that should be ascribed to it is in my view as stated by LYMINGTON M.R. in HALFORD v BROOKERS (1991) 1 WLR 428, 443:

"In this context 'knowledge' clearly does not mean 'know for certain and beyond possibility of contradiction.' It does, however, mean 'know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.'"

As was said in DOBBIE (post) this test is not hard to apply. It involves ascertaining the personal injury which in this case the Plaintiff well knew and that too well within the limitation period. Here the Plaintiff knew that he has suffered personal injury as soon or almost as soon as he does so. Hence time began to run against him when he knew about the personal injury and in this case at the time of the accident. The fact that he was acquitted of a traffic charge in 1994 has no bearing on when he should commence an action and it is not a good excuse for not doing so within the period allowed by law.

In PERMAL (supra at p.7) the Court said:

"Generally speaking it can be stated that in virtually all cases leave should be sought before issuing a writ. If leave is sought after commencement of the action a court has no jurisdiction to entertain the application unless the applicant can satisfy the court that he did not know and could not with reasonable diligence discover that the material facts on which he based his claim had occurred more than 3 years before he issued the writ."

This passage from PERMAL (supra) hits the nail on the head. The same view as in PERMAL (supra) was expressed in DOBBIE v MEDWAY HEALTH AUTHORITY 1994 WLR p.1234 at 1235 C.A.) where it was held dismissing the appeal:

".... (1) that on its plain words section 14 did not require a plaintiff to know that the act or omission on which he founded his cause of action was arguably actionable or tortious; that a claimant's date of knowledge, as defined by section 14, occurred when he knew that the injury in question was significant and capable of being attributed to something done or not done by the proposed defendant; that since the plaintiff had known within a short time of the operation that the injury on which she based her claim, namely the removal of her breast and the consequent psychological harm, was significant and attributable to an act or omission of the defendant, her lack of knowledge until 1988 that that act or omission was arguably negligent did not prevent time beginning to run; and that, accordingly, her claim was statute-barred.

(2) That, having regard to the lengthy delay after the plaintiff's date of actual knowledge before she issued proceedings, it would not be equitable for the court to exercise its discretion under section 33 to disapply the limitation period."

The decision in DOBBIE (supra) however, has to be read in the light of the specific provisions namely, sections 11, 14 and 33 of the English Limitation Act 1980 which are somewhat different from our Act. In particular the word "significant" is not contained in our Act. There (English Act) in section 14(1) it is stated:

"14(1) In sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts - (a) that the injury in question was significant, and ......."

(emphasis added)

The word "significant is used in s 14(1) and that is why I think Mr. Chand was arguing on that basis.

For these reasons I reject Mr. Chand's argument on as to when time begins to run and the late receipt of medical report in 1992.

The third argument put forward by Mr. Chand was that the defendants will not be "prejudiced" if the application was granted and he pleaded to Court to exercise its discretion. In the absence of a specific provision as in s.33 of the English Act allowing an action to proceed having regard to the aspect of "prejudice" and giving the court an exercise of discretion under the said section, I cannot consider these factors in this case much as I sympathise with the Plaintiff's pain and suffering. I cannot exercise a discretion where there is none except what is provided for under the abovementioned sections of the Act. But where there is discretion vested in the court (as in the said s.33 of the English Act) then certain principles are applied in the matter and the course usually adopted is as stated by BOWEN L.J. in GARDNER v JAY [1885] UKLawRpCh 60; (1885) 29 Ch.D. 50 at 58:

'... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rule with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the judge why should the court do so?'"

I therefore have to reject this submission also.

The said section 16(3) uses the terms "material facts", "facts of a decisive character" and "outside the knowledge". I have already stated what meaning is to be given to the word "knowledge". These terms are defined in the Act in sections 19 (meaning of "material facts relating to a cause of action"), 20 (meaning of "facts of a decisive character") and 21 (meaning of "when facts will be taken as outside the knowledge of a person"). I find that on the facts none of the requirements of the said s 16(3) have been fulfilled to enable the Plaintiff to claim an order granting the application under the provisions of that subsection.

Under a somewhat similar provision to our own said sections of the Act, in BERG v KRUBER ENTERPRISES (DIVISION BESSER OLD LIMITED) LTD (1990) 2 Qd R 301 the Full Court of Supreme Court of Queensland, in allowing the appeal against the extension of the limitation period dealt with the meaning and effect of the abovementioned terms. What was discussed there are relevant for the purposes of the issue before me and I therefore quote hereunder from COMMONWEALTH LAW BULLETIN January 1992 p. 59 and adopt them in this case:

"The Full Court of the Supreme Court of Queensland, in allowing the appeal, held that -

1. it was the facts constituting the negligence rather than the legal consequences of those facts which must be unknown to an applicant for an extension of time and the facts were within this applicant's knowledge at all material times; and
   
2. before September 1985 the respondent knew, or would have known if he had appropriate advice, that he had a permanent disability of his spine and the estimate of the Board was not a material fact."
   

On the basis on which that decision was reached and the reasoning behind it is well stated in the principal judgment in the case of BERG (supra) and it would be worth repeating it here at the risk of being lengthy as it too has a strong bearing on the present case. I quote hereunder from the COMMONWEALTH LAW BULLETIN (supra p.59-60) the observations, inter alia, in the said judgment:

1. The facts of the occurrence of negligence is one of the material facts which will satisfy s. 31(2)(a). See s. 30(a)(i). It is however, quite clear as a result of authoritative exposition not only in Australia but in the United Kingdom that it is the acts or omissions alleged to constitute the tort and not legal concepts or causes of action with which the legislation is concerned. It is sufficient to refer to the judgment of Wilson J in Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 at 244 for the proposition that the legal consequences of a fact or facts are to be excluded from the category of material facts. His Honour cited with evident approval the speech of Lord Pearson in Smith v Central Asbestos Co. [1973] AC 518, 541 and 542, where his Lordship said:
   

"It seems to me the Parliament has drawn the line between ignorance of facts (material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from these facts as to the prospect of success in an action. If the plaintiff did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused."

2. In Sugden v Crawford [1989] 1 Qd R 683 this Court had occasion to consider whether a material fact was also of a decisive character as that expression is defined by s. 30(b). I there said at 685:
   

"Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s. 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action".

This view seemed to me to be warranted by Taggart v Workers' Compensation Board of Queensland [1983] 2 Qd R 19.

In Do Carmo at 250 Deane J said:

"The legislative policy underlining the sections is plain enough. It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until more than twelve months before the commencement of proceedings".

In Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, Kelly SPJ at 331 said:

"In my opinion a reasonable man knowing those facts and having taken the appropriate advice on them would have regarded them as showing that if he were to bring an action it would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action".

At 333 Macrossan J, as he then was, said:

"In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest pursue it. This is what the application of the test of decisiveness under s. 30(b) comes down to: Taggart v The Workers' Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 251 per Deane J." (underlining mine)

In the outcome, on the facts I find that the plaintiff was dilatory in commencing his claim within the limitation period particularly when he was well aware of the nature and extent of his personal injury at the time of the accident or shortly afterwards and at the latest after his discharge from hospital in August 1991.

In the circumstances of this case for the reasons given all of Mr. Chand's arguments are devoid of merits and they have no legal basis.

Accordingly, as the Plaintiff's claim is statute-barred I dismiss his application seeking an order extending time to enable him to continue with his said action for damages for personal injuries with costs which are to be taxed if not agreed.

D. Pathik
Judge

At Suva
30 June 1995

HBC0539D.94S