IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 508 OF 1992

Between:

MIRIAMA GANILAU
Plaintiff

and

1. FIJI ELECTRICITY AUTHORITY
2. ATTORNEY GENERAL OF FIJI
Defendants

Mr. T. Fa for Plaintiff
Mr. Anu Patel for first defendant
Mr. D. Singh for second defendant

DECISION

Before the hearing commenced as a preliminary issue both counsel raised the defence of Statute of Limitation as more than three years had elapsed before this action was instituted by the Plaintiff.

The first defendant (D1) had pleaded the Limitation Act Cap. 35 (the 'Act') but the second (D2) had not.

Background

The background to the case is that the deceased was electrocuted when he "went to fetch pawpaws from outside his home at Quarters 43B at Korovou Prison Compound, when he held on to a brace-wire which was in fact a live wire which had him electrocuted" from which he died on 30 April 1989. The Writ of Summons was issued on 19 November 1992. Working back three years the critical date is 30 April 1992 and that was when the three years expired after the death of the deceased (who was the Plaintiff's husband) (hereafter referred to as the "deceased").

The Plaintiff brings this action under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap. 27 and Compensation to Relatives Act Cap. 29.

The findings in the Inquest (Inquest No. 2 of 1989) that was held to inquire into the circumstances surrounding the death of the deceased was delivered on 22 December 1989 which concluded that (as per item 7 of Statement of Claim):

"(a)	the deceased Inoke Raiwalui died by electrocution

(b)	it was the result of the negligence of the F.E.A. the first defendant 'for failing to maintain the brace-wire attached to the lamp post in question in a safe and proper manner, since it was not properly insulated'."

It is to be noted that the first defendant's report prepared in compliance with section 57 of the Electricity Act Cap. 180 was not available to the Plaintiff until 1 October 1992 which was 3 years 5 months after deceased's death in response to Plaintiff's solicitor's letter of 2 May 1989 and that was the reason given by the Plaintiff for the delay in filing this claim.

The said s.57 provides, inter alia (in so far as it is relevant):

"57. - (1) Whenever any accident causing or resulting in loss of life or hurt to any person or serious injury to property has occurred in connection with any installation or electrical plan or apparatus, the owner or licensee thereof and the management thereof shall report the accident to an inspector by the quickest means available, and subsequently with the least possible delay shall report in writing to an inspector the facts of the matter so far as they are known. The inspector shall, as soon as practicable after receipt of the first report -

(a)	visit the place where the accident occurred;

(b)	make a preliminary investigation of the circumstances; 

(c)	record in writing his finds upon such investigation;

(d)	forward his report to the Chief Inspector; and

(e)	if there has been any loss of life or there is reason to believe that any person has been fatally injured, send a copy of his findings to the nearest magistrate.

(2)	In the event of loss of life or grievous hurt to any person due to any accident in connection with any installation or electrical plant or apparatus, no alteration or addition shall without the consent of an inspector be made to any part of such installation, plant or apparatus which may have contributed to cause such accident nor shall any alteration be made, without such consent, to the site of the accident until an inspector has completed his investigation:

Provided that nothing herein contained shall operate to interfere with rescue work or work necessary for the general safety of life or property.

(3)	If, upon a preliminary investigation under the provisions of subsection (1), it appears to the officer making such investigation that there is reason to believe that the accident was due to any failure to comply with the provisions of this Act or of the regulations made thereunder or to neglect of any lawful order given by an inspector, or if the officer making such investigation is satisfied that the accident might have been prevented if proper precautions had been taken and observed in the working of any installation or electrical plant or apparatus, the Chief Inspector shall further investigate the circumstances of the accident together with the inspector and shall report the matter to the Authority and give his opinion thereon. If the Chief Inspector or the Authority is of the opinion that criminal proceedings will lie against any person, he shall then forward to the Director of Public Prosecutions a copy of the inspector's report together with his opinion on the circumstances and findings." (Amended by Act 14 of 1975, s. 42) (underlining mine for emphasis).

I also note that Letters of Administration in the estate of the deceased was granted to the Plaintiff on 19 September 1989 (which was 4 months 9 days after death of the deceased).

In the Minutes of the Pre-trial Conference the defence of Limitation Act was not raised at all. On the 'Agreed Facts' the first defendant said that the second defendant is liable and vice versa. The only issue for determination by Court was to decide whether the first defendant is liable or the second defendant and if liability is established in either the first or the second defendant then what damages is Plaintiff entitled to.

First defendant's contention

It is D1's contention that the action should have commenced within three years of the deceased's death namely by 29.4.92 under s 4(1) of the Limitation Act. Instead the Writ of Summons was issued 19 November 1992 which is 6 months 20 days out of time (if taken from date of death). Mr. Patel further says that there ought to have been an application made for leave to extend the time under s.16 of the Act.

Second Defendant's contention

Mr. Singh advanced a similar argument as Mr. Patel. He added that under s8 of the Compensation to Relatives Act it is stated that the action "shall be commenced within three years after death". He says that it is a mandatory provision.

Plaintiff's submission

Mr. Fa for the Plaintiff submits that Court has discretion under sections 16 & 17 of the Act. He seeks leave under section 17. As for section 8 of the Compensation to Relatives Act he asks the Court to read "shall" as "may" in the circumstances. He says he is "only out by 6-7 months".
 
Consideration of the issue

It is the ordinary rule that time begins to run against a claimant when a common law cause of action arises but then there are statutory provisions in relation to the period within which proceedings should be started and also for extension of time. I shall now deal with these provisions in so far as they are relevant to the issue before me.

The Compensation to Relatives Act in s. 8 and the Limitation Act in s. 4(1) both require an action in respect of personal injury to be commenced within three years from the date when the cause of action accrued.

The said s.8 provides:

"8. Not more than one action shall be for the same subject-matter of complaint, and every such action shall be commenced within three years after the death of the person deceased."

And the said s. 4(1) states:

"4 - (1) The following action will 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)	...

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; and ..."
(underlining mine for emphasis)

In this case the action should have commenced by 29 April 1992 which would have been in compliance with the abovementioned sections. However, the Plaintiff did not obtain Letters of Administration until 19 September 1989. Then, had the Plaintiff been informed of the actual date of the Grant the three years would have been up by 19 September 1992. Furthermore, the Report under the said s57 did not reach the Plaintiff's solicitors until 1 October 1992 when the action could have commenced. Also the Inquest Findings were not delivered until 22 December 1989. The action could have commenced by 22 December 1992 but it was instituted earlier, namely, on 19 November 1992 which was within the period of three years. 

On the facts, I find that: (a) if one calculates the limitation period from the Findings in the Inquest the Plaintiff was within time and hence the defendants' arguments will fail completely; (b) if one takes the period from the date of Grant then Plaintiff is out of time by two (2) months only; and (c) if time is calculated from date of receipt of report under s57 the Plaintiff is out by 1 month 19 days.

In any case the Plaintiff could not have instituted an action until the Grant of Letters of Administration to her and then she would have been out by two months. The situation boils down to this that the Plaintiff was out of time by about two months.

The question now arises is, whatever the circumstances, whether the Plaintiff should be allowed to proceed with the action under the provisions of the Act.

Section 16 of the Act provides for extension of time limit for actions in respect of personal injuries; and section 17 provides for 'application for leave of Court' for the purposes of s.16.

I find that in this case, although the deceased was electrocuted, the Plaintiff did not know the 'material' and "decisive" facts (the terms are defined in sections 19 and 20 of the Act). The consequences of this are as stated by LORD PEARSON in SMITH v CENTRAL ASBESTOS CO (1973) AC 518, 541 and 542 where he said:

"It seems to me that 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 those 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 prospect 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.".

The said sections 16 and 17 were fully dealt with by the Fiji Court of Appeal in PERMAL and KRISHNA SAMI and LORAINI TINAI SAWETA (Civ. App. No. 19/85). The relevant portion of section 16(1) reads as follows:-

"16. - (1) The provisions of subsection (1) of section 4 shall not afford any defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which - 

(a)	the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and

(b)	the requirements of subsection (3) are fulfilled."

Section 16(3) which deals with knowledge of 'facts of a decisive character' provides:

"(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."

And s.17 which provides for application for leave of Court, states, inter alia:

"17. - (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." (underlining mine for emphasis)

The reason given for delay was that the Report under s 57 was not to hand until 1 October 1992 which was after the limitation period. The question of whom to sue for this incident could not be decided with any degree of certainty before that date. This reason I would say fulfils the requirement of s. 17(3). It is interesting to note that the body which is required to give the report under s 57 is the very body which is now being sued along with the Attorney-General.

The question therefore is, when did the Plaintiff get to know "actually or constructively the material and decisive facts": (DENNING L.J. in NEWTON v CAMMELL LAIRD & CO. (SHIPBUILDERS AND ENGINEERS) LTD (1969) 1 Ll.L.R. C.A. 224 at 226). In other words when did she have constructive knowledge that death was due to the negligence of either or both the defendants.

In NEWTON (supra) at p.226 DENNING L.J. states the test of constructive knowledge thus:

"You have to ask yourself: At what date was it reasonable for him for the sick man himself to have taken advice and found out that his illness was due to his employers' negligence or breach of duty? You do not ask: At what date would a reasonable person have taken advice? You ask: 

At what date was it reasonable for this man to take it? In other words, at what date ought he to have taken advice and found out that he had a worthwhile action?"

In PERMAL (supra) at p.6 of the judgment reference is made to CLARK v FORBES STUART (THAMES) ST. LTD (1964) 2 All E.R. 283 where leave was granted under provisions similar to our sections s.16 and 17. There the Plaintiff did not know of the identity of the occupier of premises until after the limitation period had expired. This was held to be a 'material fact' in an application made before commencing the action. There PEARSON J said that if an application is made after action is commenced then "something more" has to be proved by the applicant and that "something more" is identical to our s.17(3), namely that "matters constituting her cause of action were outside her knowledge when she commenced the action". (Permal (supra) at p.6). (underlining mine for emphasis).

Here, although belatedly, the Plaintiff is applying for leave under s.17 in the circumstances outlined above. On this aspect this is what is said in PERMAL (supra) at p.7:

"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." (underlining mine for emphasis).

The situation here is, as I have stated above; and I am satisfied that the material facts did not come to light until shortly after the expiry of the period.

The Court of Appeal in SPARGO v NORTH ESSEX DISTRICT HEALTH AUTHORITY (THE TIMES 21 March 1997 p.34) applied the subjective test for dating knowledge of injury when it held:

"To establish the date of a plaintiff's knowledge as to the causation of his injury for the purposes of the Limitation Act 1980, a subjective test was to be applied: what the plaintiff himself knew and not what would have been the reasonable layman's state of mind in the absence of expert confirmation." (emphasis added)

The question that had to be asked here is when did the Plaintiff first know that electrocution was attributable in whole or in part to either of the defendants or both? On the facts, the Plaintiff did not acquire knowledge until after the Findings in the Inquest which confirmed her suspicion or belief. Further, on the aspect of when the Plaintiff has knowledge the Court of Appeal in NASH v ELI LILLY & CO (1993) 1 W.L.R. 782 at 795 said:

"... whether a claimant has knowledge depends both upon the information he has received and upon what he makes of it. If it appears that a claimant, while believing that his injury is attributable to the act or omission of the defendant, realises that his belief requires expert confirmation before he acquires such a degree of certainty of belief as amounts to knowledge, then he will not have knowledge until that confirmation is obtained."

It was held in KHAN v AINSLIE (1993) 4 Med. L.R. 319 that "the relevant date was February 1989, when the report was obtained, because until that stage the plaintiff had no knowledge of the attributability of his disability to delay, and was ignorant of the link to the act or omission on which he now relied as being negligent." It is stated in the FIRST SUPPLEMENT to the FIRST EDITION OF MEDICAL NEGLIGENCE (1994) by JONES in item 10.18 p.81 that:

"....since where the plaintiff knows that the injuries were caused by one or other of two defendants, but not both, and does not know which defendant is responsible the plaintiff would be expected to sue both in the alternative.
(HALFORD v BROOKE (1991) 3 All.E.R. 559, 574, per LORD DONALDSON M.R.).

In this case it was only after the Findings in the Inquest came to the Plaintiff's knowledge that she was able to institute the present proceedings.

In considering the issue before me apart from PERMAL (supra) I have, apart from the authorities cited above, also sought guidance from the Fiji Court of Appeal cases of OWEN CLIVE POTTER v TURTLE AIRWAYS LIMITED and RAVINDRA SINGH MINHAS (Civ. App. No. 49/92) and Civil Appeal No. 50/92 in which the appellant was KERRY FRANCIS THOMAS. In these cases, although they were cases of dismissal for want of prosecution there was considerable delay in proceeding to trial, the Court said that in such a situation the Court has to consider whether "that delay has been inordinate and inexcusable" (vide BIRKETT v JAMES (1978) AC 297 at 318; vide also WILLIAM CROSBY & CO PTY LTD v COMMONWEALTH (1963) 109 CLR 490 at 496.

In the case before me, on the facts, I do not consider that the delay was "inordinate or inexcusable". It was a very short delay indeed and the Plaintiff should not be prejudiced. The second defendant as I said did not raise the defence of statute of Limitation until the eleventh hour and the issue was to decide which of the two Defendants is liable.

There is one other factor which the Court has to consider, where there is delay, which was minimal in this case, whether the defendants will be 'prejudiced' by the delay.

On 'prejudice' it was said in HARTLEY v BIRMINGHAM CITY DISTRICT COUNCIL (1992) 2 All E.R. C.A. 213 at 226 that:

"As the prejudice resulting from the loss of the limitation defence will almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision, the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend ..."

LEGGATT L.J. in HARTLEY (Supra) at p.224 said:

"But a decision not [sic. query delete the "not"] to allow the action to proceed would cause the defendants to suffer no injustice whatever in being required to meet a claim of which they had had prompt notice and which they had had every opportunity of preparing themselves to meet. Equity need not be concerned to afford adventitious protection to a tortfeasor who has not been deprived of any opportunity to defend himself."

The first defendant was well aware as to when deceased died and the circumstances leading to it as the deceased was in the employ of the second defendant and the first defendant was asked to prepare a report under the said s57. In this situation as was held in Scottish case of FERLA v SECRETARY OF STATE FOR SCOTLAND (O.H.), March 2, 1994 C.L. June Digest 1995 129 at 130 that "as the defendant could not offer to prove prejudice in the conduct of his defence, being able to proceed on a fully defended basis, ... the refusal to grant relief to the pursuer ... would cause greater prejudice to him then to allow the action to proceed would to the defender ....."

In YAMAMORI (HONG KONG) LTD v CTG PTY LTD and OTHERS (1992 109 FLR 249) it was held, inter alia, that "it was not established that the defendant would suffer any relevant prejudice if an extension of time was granted. In the circumstances outlined hereabove and because of the fact that report from the second defendant under s57 was not to hand until very late, the Plaintiff did not sue sooner.

The approach to the issue in this case should be as stated in SKINGSLEY v CAPE ASBESTOS COMPANY, LTD (1968) 2 Ll.L.R. C.A. 201 at 203 where RUSSELL L.J. said:

"That this industrial disease was attributable to the negligence or breach of duty of the proposed defendants is a material fact of a decisive character. The question is whether that material fact of a decisive character was not known to the proposed plaintiff until about November, 1967. Whether he had the requisite statutory ignorance depends, it seems to me, on this one question, whether under Sect. 7(5) it would have been reasonable action on his part to have gone to his trade union earlier than he did, for example in 1964 when the asbestosis was diagnosed."

As I said earlier the material fact of a decisive character did not come to the Plaintiff's knowledge until just before action commenced and that led to the Plaintiff being two months out of time. The following passage from the FIRST SUPPLEMENT TO MEDICAL NEGLIGENCE (supra) at p.83 is apt:

"Thus, where there was a short delay after the expiry of the primary limitation period, which was not caused by the plaintiff's fault but was entirely the fault of his solicitors, and the delay did not affect the defendant's ability to defend the action on the merits, the court was justified in exercising the discretion under s.33 in favour of the plaintiff even though he would have a cast-iron action against his solicitors if the action were not allowed to proceed. It cannot always be said, however, that where the ability of a defendant to defend on the merits has not been affected by the delay, the benefit of the limitation defence must be regarded as a "windfall".

For these reasons I grant leave to the Plaintiff under s.17 of the Act.

To summarise, the date of knowledge was later than the accrual date of the cause of action and the Court has the power to override the defence of limitation. In my view these fulfil the requirements of the provisions of the Limitation Act. The Plaintiff had as required of her pleaded the fact and matters on which she relies in support of her contention and has stated why there was delay. But the first defendant I find has by raising the defence of limitation and denying the facts alleged by the Plaintiff has put these facts in issue. The following passage from the SUPREME COURT PRACTICE 1979 Vol 1 Or 18/8/8A is pertinent:

"So far as the defendant is concerned in such actions, if he raises the defence of limitation and merely denies the facts alleged by the plaintiff as to the date of knowledge, he will merely put those facts in issue. If, however, the defendant intends to set up a positive case that the plaintiff first had knowledge of any of the specified facts before the date alleged by the plaintiff, it is incumbent upon him to plead such a defence expressly, and in particular he should plead the date as precisely as he can when he alleges the plaintiff first knew any of the facts specified and he should give particulars of the facts relating to such knowledge on the part of the plaintiff (O. 18, r. 12 (4) (a), infra). Moreover, if the defendant intends to rely on the provisions of s. 2A (8) of the Act, so as to show that the plaintiff's date of knowledge was or ought to be treated as having been before the date alleged by the plaintiff, the defendant must plead the facts and matters relied on to support his contention. Only in this way will the Court be able to see and to be appraised of the precise issues between the parties on the question of the "date of knowledge." (underlining mine for emphasis)

The Plaintiffs have failed to comply with the requirements of pleading as contained in the above passage.

In the outcome, for the above reasons the limitation period prescribed by the Limitation Act is extended to the date of the issue of the Writ. The defendants' applications are therefore dismissed with costs in the cause.

D. Pathik
Judge

At Suva
7 August 1997
HBC0508D.92S