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Bibi v Narayan [2000] FJHC 81; HBC0636J.1998S (29 June 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 636 OF 1998

BETWEEN:

HASINA BIBI
Plaintiff

AND:

ATISH NARAYAN
1st Defendant

AND:

HARDIP NARAYAN & SONS LTD.
2nd Defendant

Counsel: Mr B. Solanki for Plaintiff
: Mr P. McDonnell for Defendants

Hearing: 11th May 2000
Judgment: 29th June 2000

JUDGMENT

On 2nd December 1998, leave was granted ex parte by Pathik J, to the Plaintiff to file her writ against the Defendants outside the time limit provided under the Limitations Act Cap. 35. Writ of Summons must then have been filed and served, because the Defendants are now seeking to have this order set aside. However there is no trace of the writ on the file. Nor is a draft Statement of Claim annexed to the affidavit of Hasina Bibi, sworn on 16th November 1998. However, for the purpose of this application, I am prepared to accept that a writ was filed and served on 7th December 1999, as referred to in the Defendants’ summons.

The facts of the case are that the Plaintiff is the widow of Abdul Samad, a former employee of the Ministry of Local Government, Housing and Environment, who died on 9th September 1993 as a result of a motor vehicle accident. The vehicle that struck him was driven by the first Defendant, and was owned by the second Defendant. The first Defendant was convicted of Causing Death by Dangerous Driving, and of Failing to Stop After An Accident and was fined a total of $1400.00 in 1997.

In her affidavit the Plaintiff said that she had been told by Nausori police that she could not bring any civil action until the Defendant had been convicted. She was not aware until her relative consulted a lawyer, that this was not so. The lawyer was unable to get her late husband’s employment records from the Ministry of Local Government, and this further delayed the filing of the writ. The Plaintiff said that she had to move to Labasa after her husband’s death, and had problems gaining access to justice because of her gender and religious background.

Leave was granted to extend the limitation period. The Defendants seek to set leave aside on the grounds set out in the affidavit of Peter Knight, sworn on 29th February 2000. That ground is that the grounds relied upon in Hasina Bibi’s affidavit “do not disclose any material facts unknown to the Plaintiff at the time of the accident or not known by her until after the expiration of the limitation period.”

The Plaintiff objects to this application, firstly on the ground that it does not raise any new matter that had not been raised before Pathik J when he heard the initial application ex parte, and secondly because the Plaintiff had consulted the police for their expert advice and had been told to wait for the criminal conviction of the 1st Defendant before filing her civil claim.

It is clear that this application raises no new factual matter. However, Order 32 Rule 6 is not limited to cases where new material has been disclosed, or where there was material non-disclosure when the application was made ex parte.

Indeed, the purpose of the discretion to set aside an ex parte order, is to redress the situation where an order was made without hearing both parties. Material non-disclosure, or the disclosure of new facts only provide examples of when that discretion might be exercised.

In WEA Records Ltd. -v- Visions Channel 4 Ltd. (1983) 1 WLR 721 Lord Donaldson MR said at page 7270 -

“As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order.” (My underlining).

For these reasons, I consider myself able to exercise my discretion in this case although the Defendants have not produced any new evidence. I note however, that the Plaintiff has raised new material in her second affidavit.

The cause of action in this case arose on 9th September 1993. The limitation period expired on 9th September 1996.

Section 6 of the Limitations Act Cap. 35 provides:

“(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:

1. the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and
   
2. the requirements of subsection (3) are fulfilled.
   

(2) This section applies to any action 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 the plaintiff or any other person.

(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 -

1. 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
   
2. in either case was a date not earlier than twelve months before the date on which the action was brought.”
   

Section 19 of the Act defines “material facts relating to a cause of action” as follows:

“In sections 16 and 18 any reference to material facts relating to a cause of action means a reference to any one or more of the following:

1. the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;
   
2. the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;
   

100. the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.”
     

Section 20 of the Act defines “facts of a decisive character” as follows:

“For the purposes of sections 16 and 18, any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 22 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that, apart from any defence under subsection (1) of section 4, an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.”

When did the Plaintiff first have actual or constructive knowledge of the material facts relating to the cause of action? The answer is surely on the day of her husband’s death. When did she know the facts of a decisive character which a reasonable person, having obtained appropriate advice would have regarded as determining that an action might have good prospects of success? The answer is surely either at her husband’s death or at the time the first Defendant was charged with causing his death.

In her second affidavit, the Plaintiff referred to correspondence between her lawyer, the Defendants and the Insurance Company to show that the issue of insurance was not disclosed by the Defendants until after the limitation period had expired.

I cannot accept this. The Plaintiff knew on the day of her husband’s death, that he had died as a result of a motor vehicle accident. Shortly after his death, she knew that the first Defendant had been charged. Simple inquiries at that time would have given her a clear indication as to whether the action would have a reasonable prospect of succeeding. Failure to get that advice, when she was aware of the material facts, is not a ground for extending the limitation period. As Lord Pearson said in Asbestos -v- Dodd (1972) 2 ALL ER135;

“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.”

Counsel for the Plaintiff submits with some force, that the police were experts from the point of view of the Plaintiff, and that “a reasonable person” should mean a reasonable person in the Plaintiff’s shoes, with her cultural background and her economic status.

It is not clear when the Plaintiff consulted the police. At paragraph 6 of her first affidavit she stated:

“That the main reason why I could not bring the action earlier was that the police case against the first defendant was dragging on for four years. I was further told by the police that I could not institute civil action due to the fact that the first defendant had not then been convicted in this matter. It was much later that my relatives consulted a lawyer who informed them that a civil action could be maintained despite the fact that the first defendant had not been convicted at that time. I verily believe that I was misled by the police.”

It appears that the Plaintiff consulted the police before 1997. It is not clear whether she consulted them before 9th September 1996, when the limitation period expired.

Section 22 of the Limitations Act defines appropriate advice as meaning:

“The advice of competent persons qualified, in their respective spheres, to advise on the medical, legal or other aspects of that fact or those circumstances, as the case may be.”

Section 22 is similar to the provisions of section 14(3) of the Limitation Act 1980, in the United Kingdom. In relation to that section, it was held in Halford -v- Brookes (1991) 3 ALL ER that the Plhe Plaintiff’s failure to appreciate the legal significance of relevant facts did not assist in determining the date of his actual or constructnowledge. Nor will receiving the wrong legal advice as to t to the legal consequences of material facts.

In that case the Plaintiff had not been given advice by his original solicitors about the possibility of civil proceedings in the murder of his daughter. He was later given that advice by subsequent solicitors but the limitation period had expired. The Court of Appeal held that the claim was barred because the Plaintiff knew that the death of his daughter was capable of being attributed to the defendant so as to justify civil proceedings.

The effect of the Limitation Act can be unjust for those who have difficulties in obtaining access to justice. It can be particularly so for rural dwellers, the illiterate and women from conservative families.

In Surya Deo Sharma -v- Jovesa Sabolevu and the A-G Civil Appeal No. 43 of 1995S the Fiji Court of Appeal said that:

“The provisions of section 16 and section 17 are in our view, unnecessarily complex and difficult to understand. Indeed they can fairly be described as convoluted. This is an undesirable feature of legislation that can affect the lives of ordinary citizens. It is our recommendation that the authorities give active consideration to the re-enactment of these provisions in a form that is simple, clear and easy to understand.”

I would go further, and suggest that a ground for extending the limitation period should include the special circumstances of the economically disadvantaged and the illiterate who have no ready access to appropriate legal advice.

The application to set aside the order to extend time is allowed.

Given the delay in making this application after the writ was issued, I make no order for costs.

Nazhat Shameem
JUDGE

At Suva
29th June 2000