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Nisha v Reddy [2010] FJHC 353; Civil Action 14.2010 (20 August 2010)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

Civil Action No: 14/2010

BETWEEN:

SAFATUN NISHA
f/n Jasub Khan of Vunika Labasa as the Administratrix of the Estate of her late husband
Mohammad Ali aka Mohammad Ali Khan f/n Ibrahim Khan aka
Mohammad Ibrahim aka Ibrahim late of Vunika Labasa.
PLAINTIFF

AND:

SHRI KRISHNA REDDY
f/n unknown to plaintiff of Tuatua Labasa
1st DEFENDANT

AND:

BISHWAN NAIR
f/n unknown to the Plaintiff of Labasa in the Republic of Fiji
2nd DEFENDANT

Appearance: Ms. Naidu of Sherani's for the Plaintiff

DECISION

INTRODUCTION

By an Ex-parte Notice of Motion filed on 25 March 2010 the Plaintiff seeks an extension of time within which she may issue a Writ of Summons against the Defendants. The Motion was supported by an affidavit of the Plaintiff who is also the Administratrix of the Estate of her late husband, Mohhamad Ali aka Mohhamad Ali Khan. The application was made pursuant to section 16 of the Limitation Act Cap. 35 and the inherent jurisdiction of this Court.

BACKGROUND

The background leading to this application is that the Plaintiff's husband, the late Mr. Mohhamad Ali Khan was fatally injured in a motor vehicle accident on 12 June 2002 at Daku, Labasa. The motor vehicle simply went off the road, there were no other vehicles involved. The Plaintiff states in paragraph 3 of her affidavit in support that she was not aware that she could institute proceedings under the Compensation to relatives Act Cap. 29 and that the said proceeding to be instituted within three years. After receiving advice from her family members she learnt that she had to take out probate first in order to institute any action under the Compensation to Relatives Act. With the assistance of a family friend, a Mr. Naidu, shethen consulted Sherani & Co and was advised that she should apply for Letters of Administration first and that she should obtain the details of how the accident happened. The said Solicitors then prepared the relevant documentation to obtain letters of administration which was duly granted on 16 September 2003 although she was not made aware of the grant until late 2004. Her point of contact with the lawyers was the family friend Mr. Naidu who was then living in Suva and it was easier for him to liaise with the lawyers.

She therefore completely relied on him to update her regarding the case and she was of the view all the time that the case was in Court. Five years later in late 2009 when there was no update from Mr. Naidu she asked her brother in –law to make contact with the Lawyers in Suva and was informed that no further instructions were given to them regarding the case. She is an old lady, uneducated and has six children three of whom were totally dependant on her late husband. Upon giving instructions to the Lawyers in November 2009 information regarding the negligence of the defendants was established and that she was now able to make an application for leave to issue the writ out of time.

The following chronology appears to be the sequence of events prior to this application:-

1. 12 June 2002 the late Mr. Mohammad Ali died;

2. 16 September 2003 "Letters of Administration" was granted to the Plaintiff;

3. Late 2004 Plaintiff became aware that Letters of Administration was granted to her;

4. In late 2009 the Plaintiff was informed by her brother in-law that no case was filed and no instructions given to lawyers in Suva to proceed;

5. In November 2009 Plaintiff gave instructions to Solicitors to proceed with investigation and if possible, institute proceedings, she was then informed that the action was statute barred;

6. 25 March application by Ex-parte Notice of Motion filed.

PLAINTIFF'S SUBMISSION

The Plaintiff through her solicitors made a very extensive submission both orally and written as to why the Court should grant her time or leave to file a writ out of time. The submissions could be summarised as follows:-

1. That it is not in question that the limitation period had expired on 12 June 2005;

2. That there was a delay of almost five (5) years but that the delay was not intentional rather it was inevitable;

3. That the reasons for the delay were:-

(i). that the Plaintiff did not know her representative did not give instructions to lodge a claim until late 2009;

(ii). that there was a communication break down between the Plaintiff and the said representative resulting in lack of feed back about the case;

(iii). that the Plaintiff's lack of education contributed to her not being able to maintain direct contact with her solicitors;

(iv). that the Plaintiff learnt of the of the outcome of the traffic matter against the second defendant very late, which strengthened her chances of the proceedings and she was able to determine which party to sue for negligence and liability and seek compensation;

(v). that it would be grossly unfair if the Plaintiff was refused leave to file proceedings out of time. It would be a miscarriage of justice if the Plaintiff is not granted leave in view of the various criticisms and calls for reform of the provisions of sections 16 & 17 of the Limitation Act.

(vi). That the plaintiff's uneducated background and lack of family support was an undermining factor which caused delay in seeking expert legal advice and engaging solicitors.

In support of the above propositions the Plaintiff through her solicitors provided a number of relevant authorities which I will turn my attention to later in considering the law against the facts of this case.

THE LEGAL FRAMEWORK

This is a personal injury matter and it is clear that no action for damages for personal injuries can be brought after the expiration of three years from the date from which the cause of action accrued.

It is not in question that this cause of action accrued from 12 June 2002. The Limitation Act was a legislative bar to any actions for damages for personal injuries instituted after the three year period. Therefore this action should have been instituted on or before 12 June 2005. However section 16 of the said Act enabled an extension of the time limit in respect of personal injuries in certain instances. Section 16 (1) States:-

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.

As far as can be adduced from the above provision, the use of limitation as a defence as provided for in section 4(1) is not available in two instances and they are, where leave has been granted by the Court for an extension of time and where the requirements of subsection 3 are fulfilled. Most applications similar to this for an extension of time is made under section 16(3), this provision provides as follows:-

16.-(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.

Therefore in an application such as this, the applicant must prove that the material facts relating to that cause of action were or included facts of a decisive character which were all outside his/her knowledge until a date after the three year period or not earlier than twelve months before the end of that period. Some commentators have calculated these dates to be, for example in this case 12 June 2005 and/or 12 June 2004. Therefore one must make the application for leave to extend time within twelve months after the applicant has knowledge of the material facts. Hence a failure to institute proceedings within that twelve month period is fatal for an application for leave.

The procedure for an application for leave to file an action outside the limitation period is provided for in Section 17 of the Limitation Act. Subsection 17(1) thereof states that an application for leave for the purposes of section 16 shall be made ex parte except in situations where the application is being made after the commencement of a relevant action. The second part of this provision appears to envisage a situation where a further cause of action is to be added after the commencement of an action. This application fits within the first part of Section 17(1).

The Plaintiffs application under Section 17(1) must fulfil the requirement of Section 16(3), that is, establish the following:-

(i). A cause of action; and

(ii). That the material facts relating to that cause of action included facts of a decisive character which were outside the knowledge (actual or constructive) of the applicant; and

(iii). That the applicant obtained this knowledge within the twelve months prior to making the application.

A cause of action is defined as "every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved". Lord Esher in Read v Brown 1889 22 QBD at 131.

The interpretation of what a material fact relating to a cause of action can be found in Section 19 of the said Act. Section 19 states:-

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:-

(a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

(b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;

(c) 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.

There are therefore three material facts needed to be known by the applicant and they are, that there was personal injury, the extent of the injury and that the injury resulted from a negligence act.

A further interpretation which required attention in such an application is the meaning of facts of a decisive character as stated under Section 16(3). Section 20 provides a guide as to what is required here and this Section states:-

" 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".

Simply put this means that the facts that are within the knowledge of the applicant is a fact of a decisive character if a reasonable person knowing those facts and having obtained appropriate advice would have regarded those facts as sufficient to found a cause of action. Section 20 however has to be read and be interpreted together with Section 21. Section 21 qualifies when a fact is taken to be outside the knowledge of the applicant. This section states:-

21.-(1) Subject to the provisions of subsection (2), for the purposes of sections 16 to 18 a fact shall, at any time, be taken to have been outside the knowledge, actual or constructive, of a person if, but only if-

(a) he did not then know that fact;

(b) in so far as that fact was capable of being ascertained by him, he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and

(c) in so far as there existed, and were known to him, circumstances from which with appropriate advice within the meaning of section 22 that fact might have been ascertained or inferred, he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice as aforesaid with respect to those circumstances.

(2) In the application of subsection (1) to a person at a time when he was under a disability and was in the custody of a parent, any reference to that person in paragraph (a), (b) or (c) of that subsection shall be construed as a reference to that parent.

This provision again provides a different texture to a fact of decisive character within the knowledge of the applicant. Firstly a fact is outside the knowledge of the applicant if he/she does not know the existence of that fact. That is, it is not known at all by the applicant. The second is that the fact of a decisive character (the prerequisite) was capable of being ascertained by the applicant and that the applicant had taken all the necessary actions or steps as is reasonable to ascertain these facts. The third aspect of this provision is that the applicant having knowledge of the circumstances surrounding these facts of decisive character had taken appropriate advise within the meaning of section 22 to ascertain these facts and act reasonably in obtaining the appropriate advice. This provision is in fact the test for "constructive knowledge", its English equivalent is found in section 7(5) of the Limitation Act 1963 (now amended as Limitation Act 1980). In the House of Lords judgment in Adams(Respondent) –v- Bracknell Forest Borough Council(Appellants)(2004) UKKL 29 at paragraph 34 Lord Hoffman stated "...Section 7(5) defined what it meant to say that a fact was outside the Plaintiff's constructive knowledge:-

(b). in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken...for the purpose of ascertaining it; and

(c). In so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action if any as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.

It appears on a broad reading of this provision that it introduces an obligation to act reasonably, for to delay may have a prejudicial effect on the party making the application and to the party affected by it. This is an important consideration in the granting or the non granting of leave to issue a writ out of time.

Section 22 defines what an appropriate advice is, the section states:-

22. In sections 20 and 21 "appropriate advice", in relation to any fact or circumstances, means 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.

An appropriate advice is therefore considered to be the advise of a competent person qualified to advise on the medical or legal aspects of the "facts of a decisive character now within the knowledge of the applicant". That is a lawyer or a doctor.

THE FACTS WITHIN THE LEGAL FRAME WORK

In personal injury and death claims the ordinary time limit is three years from the date the cause of action accrued. The ordinary time limit does not cover cases where the plaintiffs knew all the facts but until too late do not know the law. Ignorance of the law does not give a right to bring an action late but in these sort of cases section 16 and the preceding sections of the Limitation Act gives the Court a discretion to extend the time limit where it thinks it is equitable to do so. The discretion also covers cases where the plaintiff only just out of time had known all the material facts but until too late had been unaware of his/her legal rights. The Limitation Act gives the Court a general discretion to enquire into the merits of personal injury cases begun outside the limitation period to see whether justice would be better served by denying the defendants the opportunity to take what may be an arbitrary or unmeritorious defence. The Court also has to look at the length of and reasons for the delay on the part of the plaintiff and the steps if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he/she may receive.

The incident to which the present action arose was the result of an accident on the 12 June 2002. A brief explanation of the accident was that the car in which the plaintiff's husband was a passenger went off the road at Daku, Labasa fatally injuring her husband. There were no other vehicles involved. The motor vehicle was owned by the 1st Defendant and driven by the 2nd Defendant.

After the incident the Plaintiff with the help of the family friend went to get advice from Sherani's & Co, Solicitors of Suva and was instructed to obtain Letters of Administration first before she could sue. She was also instructed to "obtain details of how the accident was caused". This much is clear from paragraph 4 of her affidavit in Support.

There are six main reasons for the delay as submitted by her Counsel. The first of which is that she did not know her representative did not give instructions to lodge a claim until late 2009. This reasoning when taken together with the fact that it took her almost twelve months to know that letters of administration was granted shows a lackadaisical approach to what one would presume to be an important matter to be attended to by her. This fact taken together with her need to look after three of her children who were totally reliant on her late husband does not reflect well for her. The second, third and sixth reasons given by her are also no reason to justify delay on her part. For the communication break-down between her and her "representative" to be caused by or contributed to by her lack of education could not be stretched as far as suggested. A period of five years after the grant of probate to check on the progress of a matter so important to her, in my view, narrows the use of the Court's discretion. In Firman –v- Ellis (1978) QB 886 it was held that if the delay is short the Court's discretion is wide enough to prevent the defendant taking advantage of formal procedural mistakes by the plaintiff. Her lack of education is not in this instant sufficient reason given the circumstances of the matter.

The fourth reason given by the plaintiff is, in my view, a critical reason and from which the time the cause of action could have accrued. Nothing was advanced by the plaintiff to substantiate the time or the details of this fact coming to her knowledge. The proposed statement of claim was not helpful in expanding this important point, in fact it does not mention this fact at all. The court is therefore not in a position to exercise a discretion due to the lack of information regarding this fact.

The next question is whether the period of delay was justifiable in her circumstances? On the plaintiff's visit to her Solicitors she was told two things that were fundamental to her bringing an action and they were, that she needed to obtain letters of administration first and that she needed to obtain the details of how the accident was caused. The first of these two things was obtained well within the three year period and next required her to act diligently and with reason. Here she had to satisfy the requirements of section 21 and 22 of the Limitation Act. Her explanation is not a satisfactory explanation simply because it was unreasonable, given the circumstances of the accident from which the cause of action arose.

There was no further evidence which could be adduced from her affidavit in support that she made any effort to obtain the details of the accident. I am of the view that an accident such as this in which there was no other vehicle involved not much preliminary investigation by her or her solicitor was needed. The Plaintiff's counsel quoted at length the English Court of Appeal decision in Goodchild –v- Greatness Timber Co Ltd (1968) 2 ALLER 255 as providing the guiding principle on the application of section 16(3). Counsel quotes a paragraph from Lord Denning decision in which he states: "His time will only be extended if a reasonable man in his place would not have realised, within the first 2 or 3 years that he had a worthwhile action. Then if it should turn out after the first two or three years that he finds out facts which make it worthwhile to bring an action, he must start within twelve months after he finds out those facts. Then and only then will the time limit be extended so that it is not barred" Unfortunately in the above case the application to extend the time failed because it was found that in the circumstances of the present case the court might be able to say" ... that any reasonable person in the position of the plaintiff had known everything material to enable him to bring a worthwhile action within three years of the accident" The question that ought to be asked in this matter then is; Taking into account the circumstances of the case, would a reasonable person in the position of the plaintiff know everything material to enable her to bring a worthwhile action within three years of the accident?

The circumstances of the accident was that the car went off the road on 12 June 2002 and that the plaintiff's husband died as a result of it. There were no other vehicle involved to enable further investigation as to who was negligent. One could say that the accident speaks for itself. In fact the 'proposed writ of summons' pleads "res ipsa loquitur" in paragraph 7. There is of course a slight danger in pleading the above principle whilst making an application for leave to extend time to issue a claim in motor vehicle accident matters. The danger lies in the fact that a plea for res ipsa loquitur presumes reasonable evidence in the absence of explanation by the defendants that the accident arose for want of care. This is the third arm of the material fact needed to be known by the Plaintiff sufficient for her to bring a cause of action. It exists as it speaks for itself.

Everything material to her action was available to her or to her solicitors almost immediately after the accident. In paragraph 6 of the Plaintiff's affidavit in Support shows that she went to the firm of Sherani's & Co to give instructions for the grant of letters of administration and that the grant was obtained on 16 September 2003. So it is safe to assume that she went to them sometimes between the date of the accident 12 June 2002 and 16 September 2003, that is, she had the material knowledge during this period. The material knowledge she was required to know was that there was an accident, her husband was fatally injured in the accident and the accident was caused by the driver of the vehicle. This is the only reasonable conclusion which could be drawn from the accident in the absence of any other vehicle being involved and this was sufficient material fact to found a cause of action. The Plaintiff knew that she had a cause of action but that she could not institute the proceedings without obtaining letters of administration. She then proceeded to obtain the letters of administration and was well on her way to instituting proceedings but relied on others to do it for her. All the necessary facts were within her knowledge. She had enough material facts and was in touch with a Solicitor to be able to obtain appropriate advice but did not. She relied totally on another person to instruct solicitors on her behalf and then did nothing for five years.

The Plaintiff, in my view, had knowledge of the material facts of a decisive character necessary for her to found a cause of action prior to the grant of letters of administration on the 16 September 2003. She further had more than ample opportunity on having obtained knowledge of the facts, taking into account the circumstances of the accident, to act reasonably by obtaining appropriate advice. She did not but preferred rather to rely on a third person to initiate the proceedings on her behalf. This is not a good cause or reason for the delay.

In an application for leave made before the commencement of an action the requirements of sections 17(2) and 16(3) must be fulfilled before the Court could exercise it discretion to grant leave. If the requirements are not fulfilled the court lacks jurisdiction to grant leave, no question of discretion arises. If the requirements are fulfilled then the court may exercise a discretion to grant leave taking into account the cause or reason for the delay and to what extent the defendant would be prejudiced by the delay.

Unfortunately the Plaintiff has failed, in my view, to fulfil the necessary requirements and the court has accordingly no reason to exercise its discretion. It is therefore not necessary to consider the prejudicial effect of the delay to the Defendants.

CONCLUSION

The application is therefore dismissed and I make no orders as to costs.

Accordingly so, ordered.

HA ROBINSON

MASTER HIGH COURT LABASA

20 August 2010