IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 296 OF 1996S

BETWEEN:

SALENDRA NATH SUKUL (father's name
Tota Ram Sukul) of Fiji Muslim League
Estate, Samabula, Suva in Fiji
Plaintiff

AND:

THE ATTORNEY-GENERAL OF FIJI
First Defendant

AND:

COMMISSIONER OF POLICE
Second Defendant

AND

PRADEEP SINGH (f/n not known to the Plaintiff)
Third Defendant

Miss Prem Narayan for the Plaintiff
S. Kumar for the Defendant

Date of Hearing: 5th December 2000

Date of Ruling: 6th December 2000

RULING

In this case the Plaintiff claims damages for injuries which he states he suffered on the 30th of August 1995 when he was assaulted by the Third Defendant. In paragraph 4 of his Statement of Claim which was amended on the 10th of April 2000 he alleges that on the way to the Samabula Police Station the Third Defendant deliberately cut the Plaintiff's tongue with a penknife. The Defendants deny these allegations.

At the close of the Plaintiff's case on the 4th of December counsel for the Defendants moved a no case submission on which I shall now rule. There were two grounds argued first that as a result of the evidence of Doctor John Fatiaki on the 4th of December and the earlier evidence of Dr. Mynit Maw who examined the Plaintiff in the Colonial War Memorial Hospital on the 31st of August 1995 the Plaintiff's tongue was cut not by a penknife as pleaded in paragraph 4 of the Statement of Claim but by a blunt object.

The Plaintiff had given evidence that after he was arrested by a number of Police Officers including the Third Defendant he had been taken to a van parked in Ratu Mara Road, Samabula in which he was to be transported to the Samabula Police Station. He alleged that the Third Defendant told the driver of the van to stop at a point some distance from a bus stop and had said to the Plaintiff, "I'm going to fix you up". After that he said the Third Defendant told the driver to hold him and said to the driver, "I'm going to cut off his tongue".

He then stated that he was held on the floor of the van by the driver and a relative named Baswa who appears to have called the Police to arrest the Plaintiff and while lying down the Third Defendant gripped his neck and put his knee in the Plaintiff's stomach. He said that then the Third Defendant pressed his neck with his hands thereby forcing his tongue out. He said the Third Defendant had a knife in his hand. He saw this when he tried to free himself. While his tongue was hanging out he was hit with something and said that when the Third Defendant pushed his neck back, the Plaintiff's tongue was still hanging out and he cried. He realised that his tongue had been cut and was bleeding and he noticed that his shirt was blood-stained. 

At about 12.30 a.m. on the 31st of August he was taken by the Police to the Colonial War Memorial Hospital for treatment of his tongue and other injuries. Doctor Maw who examined him gave evidence that he had a lacerated tongue or a wound whose edges are not clear cut. He was bleeding slowly from the tongue and the Doctor noted that it was a fresh wound. There were actually two wounds, one on the upper surface and the other on the lower. 

His opinion was that these had been caused by a blunt object applied to a hard surface. It had not been caused by a sharp-edged weapon but could have been caused by a blunt edged weapon.

When the trial resumed on the 4th of December the last witness called by the Plaintiff was Doctor John Fatiaki who had read Doctor Maw's report and the report of a Doctor Shukla who had also examined the Plaintiff.

Doctor Fatiaki did not examine the Plaintiff first until the 15th of November this year. He saw him again for the purpose of giving evidence on the 29th of November. He confirmed the opinions of Doctors Maw and Shukla and gave evidence about the Plaintiff's loss of taste sensation which I shall not mention here because it is not relevant to the present application. He did say however that there was clinical evidence of an injury to the Plaintiff's tongue which would appear to be responsible for the loss of diminished sensation in the tongue and his loss of taste. He said that it was unlikely this injury was self inflicted because a normal sane individual would not be foolish enough to injure his tongue which is a particularly sensitive organ.

In cross-examination he was asked whether he agreed with Doctor Maw that the injury had been caused by a blunt object and he said that this was really a matter of terminology. He expressed the opinion that the injuries to the tongue had been caused by the Plaintiff's teeth which the Doctor considered to be a sharp object. He said that if the Plaintiff were hit by a sharp or blunt object on the tongue one would expect contusions because the tongue is soft and so one would expect bruising and a crush-type injury rather than a laceration transversely through both sides of the tongue.

When the Plaintiff's evidence about the manner in which the Third Defendant allegedly gripped his neck was read to Doctor Fatiaki and that his tongue had protruded as a result of this Doctor Fatiaki said that this was an involuntary reflex action caused by the Plaintiff gasping for breath. He said the overriding factor was the hand on the neck causing the Plaintiff to struggle for breath and it would not matter whether the Plaintiff's neck was forced back because he would still be struggling for breath and his tongue would remain out. He believed the Plaintiff's injuries to his tongue were caused by his teeth biting the tongue.

Counsel then cited a number of cases and relied particularly on the decision of Geoffrey Lane J., as he then was, in Waghorn v. George Wimpey & Co. Ltd. [1970] 1 ALL E.R. 474, in which the Plaintiff's case as pleaded and his evidence at the trial were at variance. The judge held that this was not a case which was just a variation, modification or development of what had been averred; it was new, separate and distinct, and not merely a technicality, and constituted so radical a departure from the case as pleaded as to disentitle the Plaintiff to succeed.

Counsel argued that the instant case was on all fours and so the Plaintiff's case should be dismissed immediately.

Mr. Kumar also cited the decision of Devlin J., as he then was, in Young v. Rank and Others [1950] 2 K.B.D. 166 in which he held that in a jury action, as distinct from a trial before a judge alone, the judge had a discretion whether he would require counsel to elect either to stand on his submission or to call his evidence.

Miss Narayan for the Plaintiff began by stating the law on no case submissions to be that if a party in civil litigation makes a submission of no case, that is an election not to call evidence. She said, and I agree, that the position is different in a criminal trial. However I do not accept her submission as to election. My understanding of the rule in England and Australia is as stated in Odgers On High Court Pleading and Practice, Twenty-Third Edition 342 that at the close of the Plaintiff's case:

"The defendant's counsel must now make up his mind whether to call evidence or whether to submit that the plaintiff has made out no case to answer in law. He will not ordinarily be allowed to submit no case unless he tells the judge that he intends to rely on the submission alone and call no evidence. If counsel for the defendant adopts this course, counsel for the plaintiff will be entitled to reply to his submission that there is no case for the defendant to answer in law. If the judge overrules the submission, judgment will then be entered for the plaintiff."	

In the present case Mr. Kumar stated that if I rejected his submission he reserved the right to call evidence.

The statement by Odgers is confirmed in Laurie v. Raglan Building Company Limited [1942] 1 K.B. 152 where a strong Court of Appeal consisting of Lord Greene M.R., Goddard L.J. and Du Parcq L.J. held:

"When at a trial counsel for the defendant, after evidence for the plaintiff on the question of liability has been concluded, submits that there is no case for him to answer, the judge should refuse to rule on the submission unless counsel for the defendant makes it clear that he is going to call no evidence."

In the earlier case of William H. Muller & Others v. EBBW Vale Steel, Iron & Coal Co. Ltd. [1936] 2 ALL E.R. 1363 Branson J. held that the judge was not bound to deal with the submission only upon the terms that the defendants should undertake not to call any further evidence upon any question of fact but I can find no reference to this case in any of the later cases, certainly not in those cited to me by the defendants.

In my judgment the way in which it now appears the Plaintiff's injury to his tongue was caused is simply a variation, modification or development of what has been pleaded; it is not new, separate and distinct and I consider it merely a technicality. I do not consider it constitutes so radical a departure from the case as pleaded as to dismiss the Plaintiff's claim at this stage and I rule accordingly.

JOHN E. BYRNE
JUDGE

Cases referred to in Ruling:

Laurie v. Raglan Building Company Limited [1942] 1 K.B. 152.

Young v. Rank and Others [1950] 2 K.B.D. 166.

Waghorn v. George Wimpey & Co. Ltd. [1970] 1 ALL E.R. 474.

William H. Muller & Others v. EBBW Vale Steel, Iron & Coal Co. Ltd. [1936] 2 ALL E.R. 1363.