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Sharma v Dr. TT.OO [2011] FJHC 118; HBC108.2002L (2 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO.HBC 108 OF 2002L

BETWEEN:

KRISHNEEL KUNAL SHARMA an infant and is sued by DHIEND SHARMA father's name Abhimanu Sharma, father and Guardian-ad-litem of KRISHNEEL KUNAL SHARMA of Vitogo, Lautoka, Salesman

PLAINTIFF

AND:

DR.TT.Oo of Lautoka Hospital, Consultant Ophthalmologist
1st DEFENDANT

AND:

ATTORNEY GENERAL OF FIJI Government Building, Suva, for and on behalf of LAUTOKA HOSPITAL, Lautoka
2nd DEFENDANT

Before: Master Anare Tuilevuka

Counsel: Ms Lord for Plaintiff/Applicant
Mr. Green for the Defendant/Respondent

Date of Ruling: 02nd February 2011.

RULING

[1]. At the outset – let me just record here that Ms Lord had no objections to my hearing her application. I handled the file briefly in 2006 to 2007 for the defendants when I was Principal Legal Officer at the Office of the Solicitor-General in Lautoka.

[2]. Before me is a Notice of Motion by Iqbal Khan & Associates for the plaintiff seeking an order that the plaintiff's claim be reinstated. This is not the first such application in this case. The plaintiff's claim has been struck out on 5 or 6 occasions in the past – only to be reinstated. The claim was filed on 2nd April 2002. The plaintiff alleges that in February 1999 – he went to Lautoka Hospital for a procedure to remove a cataract on the left eye only. The procedure failed due to the alleged negligence of the 2nd defendant's doctors causing the plaintiff to lose sight in both eyes. What was to be a simple removal-of-cataract-on left eye procedure went wrong and cost him the sight of/in both eyes. This is the gist of the claim.

[3]. The Court records will show that this case has been ready for hearing for quite some time. All pre-trial processes are complete. The plaintiff's counsel has had difficulty summoning a key overseas-doctor-witness in this case because of lack of funds. This is well documented in a brief written ruling of Connors J in 2006. The file records will also show that hearing dates have been vacated and adjournment after adjournment granted to give the plaintiff's family time to raise funds.

[4]. The file records will also show that the reason why this case was struck out on the five or six occasions has been due to the non-attendance of the plaintiff's counsels. It is clear from the records that this Court has only allowed reinstatement because of the nature of the claim. It is also clear from the records that the counsels handling of the plaintiff's case has been far from exemplary.

[5]. The defendants' counsel showed much more commitment in having this case remain struck than the plaintiff's counsel in having it reinstated. That was plain from their submissions in court. In all fairness to Ms Lord, she appears to have gotten the short end of the stick having just inherited the file and all that history behind it.

[6]. Having considered all, I will refuse the application for reinstatement for the following reasons:

• (i) the case was struck out by Master Udit in February 2009 for non-appearance of the plaintiff's counsel. The proper course for the plaintiff's counsel is to seek leave to appeal the striking out to a High Court judge under Order 59 Rules 8, 9 and 10.
  
• (ii) since the plaintiff is well out of time in the leave application to appeal – he should be filing an application to the High Court to seek leave to appeal out of time.
  
• (iii) I am mindful of the seriousness of the allegations raised by the plaintiff. I am also mindful that Order 59 Rule 4 gives me the option of referring this matter to a judge where I am of the view that a judge should decide it.
  
• (iv) a judge obviously should be dealing with an application to appeal out of time. If one is to be filed in due course – it will have to be referred to a judge.
  
• (v) the application now before me was made pursuant to Order 45 Rule 10 of the High Court Rules 1988. Order 45 Rule 10 which deals with "Matters occurring after judgement: stay of execution etc". Surely – the plaintiff's deserve much more than this slipshod attempt at moving his case forward.
  

ORDERS

Application for reinstatement refused. Plaintiff to pay defendants costs which I summarily assess at $250-00 (two hundred and fifty dollars).

Anare Tuilevuka
Master

At Lautoka
02nd February 2011