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Chand v Chandra [2011] FJHC 445; HBC488.2007 (17 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 488 of 2007

BETWEEN:

DEVEN CHAND (f/n Bal Govind) of Matanikorovatu Road, Makoi, Nasinu, Electrician.
PLAINTIFF

AND:

MICHAEL VISHAL CHANDRA (f/n Ram Sewak) of Lot 5, Tuilovoni Road, Davuilevu, Driver.
1ST DEFENDANT

AND:

BAYLY J.P. TRUST a Charitable Trust having its Head Office at 193 Rodwell Road, Suva.
2ND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: DANIEL SINGH LAWYERS for the Plaintiff
PREM NARAYAN SOLICITORS for the Defendants

Date of Hearing: 29th November, 2010
Date of Ruling: 17th August, 2011

RULING

1. INTRODUCTION
   

1. Plaintiff filed this action to recover damages for the alleged injuries due to a motor accident that occurred on 3rd March, 2005. The Medical Report filed by the Plaintiff in support of this application states that there were no fractures or injury seen even after the x-ray was carried out. The injuries were clearly not of serious nature and the heath condition was reported as stable. Plaintiff has obtained a Medical Report from Makoi Medical Centre on 7th March, 2008, in which the total disability is measured at 25% total disability of the person. Defendants do not accept the said medical report and also state that the disability that has appeared subsequent to the motor accident is not direct consequence of the said accident and the cataract formation in the eye is due to the aging of the Plaintiff. Defendants contend that the Plaintiff would not receive a substantial damage hence the application for interim payment should be dismissed.
   

2. FACTS
   

2. Plaintiff suffered injuries due to a motor accident on 3rd March, 2005 and at that time he was 46 yeas of age.
   
3. The Police charged the 1st Defendant for Dangerous Driving, but the said action was dismissed by the learned Magistrate on a technical ground and in the appeal against the said dismissal, though the dismissal was found to be an error, no retrial was ordered.
   
4. The Medical Report filed by the Plaintiff dated 3rd March, 2005,(date of the accident) reveals following conditions:
   
   1. Swelling around Right Eye – Secondary to blind trauma. 1 cm superficial cut below Right Eye. Swelling 1x 1 cm above right eye brow;
      
   2. Bilateral soft tissue swelling of both leg - secondary to trauma;
      
   100. X ray examination; No bony fracture or injury seen, No Pneumothorax.
        
5. The affidavit in opposition filed by the Customer Service Officer of the Sun Insurance Co Ltd sates their objection as follows.
   
   1. They admit to the contents of paragraph 2 in so far as that there was an accident involving motor vehicles registration numbers EM 130 and DJ 841 on 3rd March 2005 and is aware that the Plaintiff was a passenger in the motor vehicle EM 130 and vehicle DJ 841 was driven by the 1st Defendant;
      
   2. The liability is denied by the Defendants;
      
   100. There were no serious injuries to the Plaintiff from the said motor accident;
        
   4. The Medical Report obtained on 30th June, 2009 from Dr SP Saha of the CWM Hospital, stated that the Plaintiff was suffering from cataract;
      
   5. The Plaintiff has suffered injuries subsequent to the incident in this action and he had jumped from a bus which has caught fire;
      
   6. Plaintiff's schedule of damages is denied.
      

100. LAW
     

6. The law relating to the interim payment is contained in Order 29 rules 9 to Order 29 rule 18 of the High Court Rules of 1988.
   
7. In terms of Order 29 rule 10 an application for interim payment can be made anytime after the writ is served and the time limit for the acknowledgment of the writ has expired. So even before the statement of defence is filed, an application for interim payment can be made by a Plaintiff.
   
8. The mode of application for the interim payment is contained in Order 29 rule 10 (3) which reads as:
   

(3) An application under this rule shall be supported by an affidavit which shall-

(a) Verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application;

(b) Exhibit any documentary evidence relied on by the plaintiff in support of the application

9. The Order 29 rule 10(4) states that the applicant of an interim payment should file 'The summons and a copy of the affidavit in support and any documents exhibited thereto shall be served on the defendant against whom the order is sought not less than 10 clear days before the return day.'

9. Once the applicant had filed summons and an affidavit with supporting documents and served them to the defendants at least 10 days before the returnable day, an opportunity should be granted to the defendant to refute and or deny and or to present its affidavit in opposition, though it is not specifically mentioned in the High Court Rules of 1988, it is fundamental thing the rules of natural justice should prevail in the exercise of discretion of the court as the court has to award an interim payment that court thinks just, clearly indicating a discretion.

10. After an opportunity is granted for the Defendants to oppose the application, through an affidavit and or with supporting document, the matter can be heard and Order 29 rule 11 deals with the requirements that has to be considered before an interim application is made. It states as follows:

Order 11(1) If on the hearing of an application under rule 10 in an action for damages, the Court is satisfied-

(a) That the defendant against whom the order is sought (in this paragraph referred to as 'the respondent') has admitted liability for the plaintiff's damages; or

(b) That the plaintiff had obtained judgment against the respondent for damages to be assessed; or

(c) That if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them the Court may,if it thinks fit and subject to paragraph(2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross–claim or counterclaim on which the respondent may be entitled to rely.

(2) No order shall be made under paragraph (1) in an action for personal injuries if it appears to the Court that the defendant is not a person falling within one of the following categories, namely:

(a) a person who is insure in respect of the plaintiff's claim.

(b) a public authority; or

(c) a person whose means and resources are such as to enable him to make the interim payment.

11. In Schott Kem Ltd v Bentley and others (1991) 1QB 61 the issue of interim payment was dealt comprehensively from page 69 to 75 and the legislative history and its development is dealt in the said judgment. I will quote the relevant paragraphs from that case, which is material to the matter before me.

12. The principles laid down in the determination of the interim payment can be summarized below: (as done in Schott Kem Ltd v Bentley and others (1991) 1QB by Neil L.J):

(1) That rules 11 and 12 of Order 29 form part of a single code; see Shearson Lehman [1987] 1 WLR 480, 492H, per Nicholls LJ. That under both rules the court approaches the matter in two stages;

(2) That at the first stage the court has to consider whether it is 'satisfied' of one of the matters set out in sub paragraphs (a) (b) and (c) of the rule 11 of Order 29;

(3) That in order for the court to be satisfied that the plaintiff would obtain judgment "something more than a prima facie case is clearly required, but not proof beyond reasonable doubt. The burden is high. But it is a civil burden on the balance of probabilities, not a criminal burden." This was held in the case of Shearson Lehman [1987] 1 WLR 480, 489A per Lloyd LJ.

(4) That at the second stage the court, if satisfied that the plaintiff would recover a substantial sum may then proceed, if it thinks fit, to order an interim payment "of such amount as it thinks just" At this stage under rule 11(1) the payment must not exceed "a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross claim or counterclaim on which the respondent may be entitled to rely."

(5) That in an action for personal injuries rule 11(2) makes express provision concerning the means and resources of he defendant. Thus rule 11(2) (c) places an absolute embargo on the making of an order for interim payment in personal injury case where the means and resources of an uninsured defendant are inadequate. In other cases the means of the defendant are relevant though they are not decisive. Thus if a defendant's resources are such that an order for interim payment would cause irremediable harm which cannot be made good by an eventual adjustment or repayment under rule 17, that is a very relevant factor to be taken into account in fixing the amount of any interim payment .This was decided in the case of Quadrex [1989] QB 842, 867B per Sir Nicolas Browne- Wilkinson V.C.

(6) "That interim payment procedures are not suitable where the factual issues are complicated or where difficult points of law arise which may take many hours and the citation of many authorities to resolve." Schott Kem Ltd v Bentley and others (1991) 1QB 61 at p73.

4. ANALYSIS
   

13. In this action the injuries to the plaintiff were not serious in nature and all the injuries were described as follows in the medical report obtained on the date of the accident:

a. Swelling around Right Eye –Secondary to blind trauma. 1 cm superficial cut below Right Eye. Swelling 1x 1 cm above right eye brow;

2. Bilateral soft tissue swelling of both leg- secondary to trauma;
   

100. X ray examination. No bony fracture or injury seen; No Pneumothorax.
     

14. The X-ray examination was conducted on relevant parts of the body and it revealed that there were no fractures or injury and absence of Pneumothrax shows that the Plaintiff was free from internal bleedings or any accumulation of fluids to lungs or abdomen.

15. There were no medical reports taken immediately after the incident or in a reasonable time after the incident. This again shows that there were no physical or mental pains after the accident and the Plaintiff was not even admitted the hospital on the day of the accident or within a reasonable time after the accident.

16. The Plaintiff's medical reports were obtained in 26th September, 2007 and 7th March, 2008 and the earlier one being obtained 2 years and 7 months and the latter one being obtained three years after the accident.

17. Considering the nature of the injuries of the Plaintiff and without any medical diagnosis or even a history of treatment, continuous or intermittent, from the time of the accident would be needed to link the alleged impairment percentage disability of 25% to the accident in issue.

18. In the absence of link, the Plaintiff's action would fail, even though there is a total impairment of 25% disability proved in the trial and without such evidence I cannot see any success for the Plaintiff. The subsequent incident where the Plaintiff jumping from a bus which caught fire, may have also contributed to some injury and the cataract on the eye cannot be considered as a direct consequence of this accident and there is no evidence that link the "Cataract" to the "Secondary blind trauma" that suffered from this motor accident.

19. In the circumstance it is unlikely that the Plaintiff would receive substantial damages, and interim payments are not desirable in such circumstances. The application for interim payment was made without a basis that would amount to abuse of process. It is to be noted that interim payment process need not be abused and use as a threat to the Defendant, when clearly there is no prospect of substantial damages being awarded to the Plaintiff.

5. CONCLUSION
   

20. The interim payment is refused and the cost of this application is assessed summarily at $1,000.00 against the Plaintiff.

The Court Orders as follows:

1. The summons for the interim payment is struck off;
   
2. The cost of $1,000.00 to be paid to the Defendant from the plaintiff within 21 days if not the claim of the Plaintiff is struck-off.
   

Dated at Suva this 17th day of August, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva