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Saratavuki v Tagicakibau [1999] FJHC 135; Hbc0298d.94s (19 May 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 298 OF 1994

Between:

ELIKI SARATAVUKI
Plaintiff

and

LEPANI TAGICAKIBAU
Defendant

and

HOUSING AUTHORITY
Third Party

Mr. S. Valenitabua for Plaintiff
Mr. G. O' Driscoll for Defendant
Mr. V.P. Maharaj for Third Party

DECISION

This is the defendant's motion dated 23 March 1999 for leave to join the Housing Authority (the "Authority") as a Third Party to this action "out of time". An affidavit has been filed in support of the motion.

The Authority opposes the application and in response affidavits have been filed on its behalf.

Background facts

In the Writ of Summons issued herein dated 8 August 1994 the plaintiff claims damages against the defendant as a result of injuries arising out of a motor vehicle accident on 3 September 1989 on Kings Road at Nasinu. The vehicle involved in the accident had registration No.BW.229; it was driven by the defendant.

The Writ was filed out of time pursuant to an Order granted the plaintiff on 22 July 1994 by Hon. Justice Kepa.

On 16 January 1997 Order 34 Summons was taken out by the plaintiff to enter the action for trial. Trial date was set for 14 April 1997 but then on 30 July 1997 counsel sought adjournment with the view to settling the matter. On 13 May 1998 counsel told the Deputy Registrar that the defendant is intending to join a Third Party. On 10 June 1998 ex parte motion for leave to join third party out of time was filed. The plaintiff had no objection and leave was granted on 3 July 1998. Third Party Notice was filed on 5 August 1998 and details of the defendant's claims are set out therein. On 7 August 1998 the Court Ordered that a Pre-Trial Conference be held by Monday 10 August 1998 and that the Minutes thereof be filed by 11 August 1998. This Order was complied with. On 30 September 1998 Summons to Set Down for Trial was filed.

Then on 1 December 1998 the Third Party filed a Summons to set aside the order granted by me on 3 July 1998 granting leave to join Housing Authority as Third Party out of time. The Authority opposed joinder stating that the "defendant's action against the Third Party be dismissed on grounds it may prejudice, embarrass or delay the fair trial of the action pursuant to Order 18 Rule 18(1)(c) of the High Court Rules and upon inherent jurisdiction of this Court". An affidavit in support was filed. As far as the plaintiff's counsel is concerned he had no objection to the application stating that it is a matter between the defendant and the Third Party.

Issue

The issue for Court's determination is whether the defendant should be allowed to join the Housing Authority as the Third Party out of time.

Defendants'/Applicant's contention

In the affidavit sworn by the defendant on 23 March 1999 in support of his application to join the Authority a Third Party out of time he stated, inter alia, the reasons for doing so. In paragraphs 7 and 8 of the said affidavit he said.

7. THAT I verily believe that it was an express and/ or implied term of my contract with the Housing Authority that Housing Authority would indemnify me against claims arising out of my employment with it, whilst acting in my capacity as an employee of it.
   
8. THAT I verily believe that at the time of the accident I was acting as a servant and/or agent of the Housing Authority and as such Housing Authority is vicariously liable for my actions whilst employed by it.
   

In his further affidavit sworn 4 May 1999 the defendant said that he reported the accident herein to the Authority but they have now "obviously lost" their records.

Mr. O'Driscoll for the defendant submitted that the reason for the delay in making the present application is because the defendant was "unfamiliar with the law". He agreed that the defence was filed on 18 October 1994. He said that Authority was the owner of the vehicle involved in the accident although this fact was for some unknown reason not disclosed in the pleadings and that the defendant was authorized to use the vehicle.

Housing Authority/Third Party/Respondent's contention

The Authority has vigorously opposed the application to join it as Third Party. The reasons for opposing it are contained in the affidavits filed herein, namely: (a) affidavit of Alipate Naiorosui, Manager Corporate Services and Board Secretary sworn 1 December 1998; (b) further affidavit by him sworn 30 March 1999; and (c) affidavit of Jagdish Prasad sworn 27 May 1999.

The Authority submits "that due to the inordinate delay on the part of the Defendant to join Housing Authority as Third Party to these proceeding, Housing Authority is seriously prejudiced and fair trial is not possible in so far as Housing Authority is concerned". (vide said affidavit of 1.12.98). It gives its reasons in detail for this submission in the said affidavit and also in the affidavit of 30 March 1999.

Mr. Maharaj for the Authority submitted that the Authority will be greatly prejudiced due to delay. The accident occurred 10 years ago. He made the following points:

(i) missing or misplaced files

(ii) Defendant was never charged by Police - so no independent Record as to circumstances of the accident

(iii) Insurance Company (Panpacific) wound up in 1990 - Had claim been lodged Pan-Pacific would have made Provision in respect of likely damages pay out.

(iv) Housing Authority re-structured, downsized, witnesses left or resigned from Housing Authority.

He further submitted that the two persons mentioned in the affidavit of Jagdish Prasad resigned from the Authority some years ago. He said that the defendant was not on official business of the Authority as the accident happened outside working hours, namely, at about midnight.

Mr. Maharaj further stated as follows:

The Defendant has failed to state in his affidavit despite opportunity having been afforded to him by this Honourable Court to state exactly what official business of Housing Authority he was transacting at the time when the accident happened.

The employment contract extend between the Defendant and Housing Authority annexed to Defendant's own affidavit filed by him on 18/6/98 (see Annexure A page 3 of LEPANI TAGICAKIBAU's affidavit) that normal working hours was between 8.00 a.m. to 4.30 p.m. Monday to Friday.

Determination of the issue

The accident which resulted in personal injuries to the plaintiff occurred on 3 September 1989 and it was not until about five years afterwards on 8 August 1994 that the Writ of Summons herein was issued which was outside the limitation period but leave was granted by Kepa J to issue.

Now on 10 June 1998 after a lapse of some 4 years from the date of filing of Defence and about 9 years after the accident that the defendant makes the present application to join the Authority as a Third Party.

It is quite obvious that the delay in applying has been inordinate and inexcusable.

The defendant had filed a Defence and the matter got to the stage of entering the action for trial. In his Defence the defendant admitted in item 2 of the Defence "that the Defendant was at all material times the registered owner of motor vehicle registration No. BW.229". Now, after so many years he alleges that he was not the owner and that the Authority owned it at the time and this the Authority admits. Now he wants to join the Authority so as to make it vicariously liable for any damages which may be awarded against him. The plaintiff is not concerned whether the Authority is joined or not for his counsel has already stated that it is a matter between the Defendant and the Authority.

In view of the long inexcusable delay in making the present application it has put the Authority in a difficult situation having to defend itself if joined for the reasons outlined hereabove in the submission made by Mr. Maharaj.

The defendant is applying for leave to join the Housing Authority a party to the action 'out of time'. This in effect means that it is intended to make a claim against the Authority outside the limitation period like the plaintiff was out of time in claiming against the defendant.

At this juncture I would state that while a limitation defence is a right available to a defendant, to exercise or not as he sees fit, similarly on the authority of Ketteman and others v Hansel Properties Ltd [1988] 1 All E.R. 38 joinder of a party ought to be refused where the cause of action alleged against that person would be statute-barred.

It was held, inter alia, in Ketteman (supra, at 39) that:

"3. Moreover, where a person was added as a defendant to an action the joinder did not relate back to the issue of the writ against the original defendant. Instead, the action was brought against the added defendant on the date when that defendant was joined as a party to the action. Accordingly, the plaintiffs' action against the architects had not been brought until 6 October 1982 when the architects were effectively joined as defendants, by which time it was time-barred."

In the case before me this application is being made well after the period of limitation in bringing an action and therefore on the authority of Ketteman (supra) the application ought to be refused. Lord Keith of Kinkel said at 46:

"It has long been a rule of practice that amendment should not be allowed for the joinder of an additional defendant in a situation where a relevant period of limitation has already expired in relation to the cause of action against him."

That being the situation the matter is entirely in the discretion of the Court. Here I find that the defendant has not acted reasonably in making the application. Nowhere in the pleadings is there a reference to the Authority. Why after a lapse of about 9 years after the accident a new claim has suddenly cropped up? Surely, the defendant must have known his rights particularly when he had counsel all along; the counsel would have explained his rights to him. Whether the fault in not bringing this application five years before lies either with the solicitors or with the defendant it is difficult to say from the affidavit evidence before me. Counsel would do well to bear in mind what Lord Denning M.R. said in Allen v Sir Alfred McAlpine & Sons Ltd & Anor [1968] 2 Q.B. (C.A.) 229 at 244 on the subject of delay. He said:

"....It is the duty of the plaintiff's advisers to get on with the case. Every year that passes prejudices the fair trial" (Fritzpatrick v Batger & Co. Ltd [1967] 1 W.L.R. 706). We struck out those cases for want of prosecution. This meant that the injured plaintiffs could not recover their compensation from the defendants. But they could recover it from their own negligent solicitors. These cases have brought home to lawyers that they must get on. A note in the Supreme Court Practice, 1967, 2nd sup, p.4, para 25/1/3, says that:

"These emphatic decisions of the Court of Appeal, which lay down a more stringent practice than was formerly followed, have injected a new element of expedition in the conduct and preparation of cases before trial, especially in relation to 'accident' cases. Plaintiffs' solicitors who do not 'get on' with their cases will be at risk of having the plaintiff's action dismissed for want of prosecution and themselves rendered liable for negligence to the plaintiff as their own former client.""

The defendant no doubt slept on his rights, if any, which is also subject to proof. This long delay in itself is sufficient evidence of prejudice to the Authority seeking to resist the proposed claim if leave is granted. Each case has to be judged on its own facts. All the circumstances of the case has to be considered to decide whether it is just to grant leave. The delay here has not been adequately explained.

As stated earlier, in the absence of any explanation as to what the defendant was doing at midnight when the accident took place, it appears that the defendant will be fighting an uphill battle trying to establish that he was acting in the course of his employment despite the alleged assertion that he was authorized to use the vehicle in question by the Authority. This matter involves the question of vicarious liability and the legal principles which render an owner vicariously liable for the negligent driving by another has been discussed at length by the Fiji Court of Appeal in Ganesh and Ram Asre AND Mahmood Ali, Anwar Ali and Amjad Ali (Civil Appeal No. 47/78). The following passages from the judgment of Spring J.A. are pertinent on this aspect:

In Morgans v. Launchbury [1972] UKHL 5; [1972] 2 All E.R. 606 at p.620 Lord Salmon says:-

"As I understand the authorities the law at present makes the owner or bailee of a car vicariously responsible for the negligence of the person driving it, if, but only if, that person is (a) his servant and driving the car in the course of his employment or (b) his authorised agent driving the car for and on his behalf................. Thus, mere permission to drive is not enough to create vicarious responsibility for negligence............So far as I know, until the present case, du Parcq. LJ's statement of the law in Hewitt v. Bonvin [1947] 1 KB at 194, 195, has never been questioned:

'The driver of a car may not be the owner's servant, and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depends not on ownership, but on the delegation of a task or duty.'"

Lord Wilberforce in Morgans' case (supra) at p.609 says:-

"It is said, against this, that there are authorities which warrant a wider and vaguer test of vicarious liability for the negligence of another'; a test of 'interest or concern' .....................

On the general law, no authority was cited to us which would test vicarious liability on so vague a test, but it was said that special principles applied to motor cars. I should be surprised if this were so, and I should wish to be convinced of the reason for a special rule. But in fact there is no authority for it. The decisions will be examined by others of your Lordships and I do not find it necessary to make my own review. For I regard it as clear that in order to fix vicarious liability on the owner of a car in such a case as the present, it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. The substitution for this clear conception of a vague test based on 'interest' or 'concern' has nothing in reason or authority to commend it. Every man who gives permission for the use of his chattel may be said to have an interest or concern in its being carefully used, and, in most cases if it is a car, to have an interest or concern in the safety of the driver, but it has never been held that mere permission is enough to establish vicarious liability."

We respectfully agree with the statement made by Lord Donovan in Rambarran v. Gurrucharran [1970] 1 All E.R. 749 at 751 when he said:

"Where no more is known of the facts, therefore, than that at the time of an accident the car was owned but not driven by A it can be said that A's ownership affords some evidence that it was being driven by his servant or agent. But when the facts bearing on the question of service or agency are known, or sufficiently known, then clearly the problem must be decided on the totality of the evidence."

From what has been stated in the affidavit evidence, this indeed is a case where delay has been intolerable as a result evidence has disappeared through many intervening events as disclosed in the affidavits over the last few years as far as the Authority is concerned. If there are witnesses left, which is very doubtful, confining myself to the Authority, it is plain that the memory of witnesses will be dimmed by the delay. The Authority itself has been restructured and records are bound to have been lost in the process as counsel states and that the insurance company has been wound up. These are some of the factors which compel me to deprive the defendant of his remedy against the Authority. Apart from pleading ignorance of law with counsel acting for him throughout the defendant has not come up with any compelling argument to enable him to succeed in the application before me.

Conclusion

In the outcome, in all the circumstances of this case, on the authorities and in the exercise of the Court's discretion I find that a fair trial would not be possible as far as the Authority is concerned. A serious prejudice will be caused to the proposed Third Party (the Authority) as a result of the long and inexcusable delay on the part of the defendant in making the application to join. In these circumstances it would not be just to grant the relief sought by the defendant, namely, to join the Authority as Third Party to this action.

For these reasons, the Housing Authority's summons to set aside my order of 3 July 1998 to join the Authority as a Third Party is granted with costs against the defendant in the sum of $300 to be paid within 21 days.

D. Pathik
Judge

At Suva
5 October 1999

HBC0298D.94S