IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 97 of 2009

BETWEEN:

MATAIASI DRODROLAGI of Qauia Settlement, Lami, Welder as the husband and administrator in the Estate of LITIANA DRODROLAGI.
PLAINTIFF

AND:

MINJESK INVESTMENT CORPORATION LIMITED trading as SUVA PRIVATE HOSPITAL having its registered head office at 120 Amy Street, Toorak, Suva.
1ST DEFENDANT

AND:

DR. PAN YI place of abode unknown, Doctor, Suva Private Hospital, Suva.
2ND DEFENDANT

BEFORE	:	Master Deepthi Amaratunga

COUNSELS	:	Mr. Daniel Singh for the Plaintiff
			Mr. Singh V for the Defendants

Date of Hearing:	4th August, 2011
Date of Ruling:	13th September, 2011

RULING

A.	INTRODUCTION

1.	The Plaintiff is suing the Defendnats as the administrator of his deceased wife alleging medical negligence on an operation performed in the 1st Defendant's hospital by the 2nd Defendant on 7th March, 2006. The Writ of summons was issued by the court on 19th March, 2009. The Defendants are seeking a strike out on the basis that the claim was filed outside the limitation period and also for want of prosecution. The statement of defence was filed on 30th March, 2009 and no step was taken by the Plaintiff to prosecute this case and the court on its own motion in terms of Order 25 rule 9 issued the notice to the Plaintiff to show cause. The Plaintiff did not file an intensiton to proceed in terms of High Court Rules of 1988.

B.	FACTS

2.	This the First Defendant, Suva Private Hospital made this application for strike-out on 1 May 2011. No affidavit in opposition filed by the Plaintiff and so there is only one Affidavit filed in this application the Affidavit of Sharon Veu-Morris, sworn and filed on 5 May 2011 

3.	The Plaintiff filed an action against 1st and 2nd Defendants on 19 March 2009. The Plaintiff claims damages for the death of his wife due to the negligence of the second Defendant during an operation which took place on 7 March 2006.

4.	The application for the strike-out of the Statement of Claim and dismissal of the action is on the grounds that:

(a)	 there is no reasonable cause of action disclosed against it and/or the claim is frivolous and/or vexatious;

(b)	the action is an abuse of the process of the Court;

(c)	 the action is statute barred as it was filed outside the 3 year period prescribed in the Section 4(1) of the Limitation Act Cap 35;

(d)	 the default and delay in the part of the Plaintiff to proceed with this action since filing the Writ of Summons on 19 March 2009 has been intentional and contumelious and there has been no initiative on the part of the Plaintiff to progress the case so that it could be set down for trial; and

(e)	 there has been inordinate and inexcusable delay on the part of the Plaintiff and/or his lawyers and that such delay will give rise to a substantial risk that there will not be a fair trial of the issues in this action or is likely to cause or have caused serious prejudice to SPH.

5.	The summons to strike out the Statement of Claim and dismissal of the action against it is made under Order 18 Rule 18(1) of the High Court Rules, 1988.

Law on Strike out

General principles

Frivolous, vexatious and an abuse of the process of the court

6.	The Plaintiff filed this claim on 19 March 2009. The cause of action arose on 7 March 2006. The Plaintiff's claim is based on negligence resulting in personal injury which has a limitation period of three years. 

7.	1st Defendant states that the Plaintiff's claim is statute barred for being outside the limitation period. 

8.	The Plaintiff's lawyer's response was that the claim was filed within the limitation period but was issued after the limitation period had expired but no affidavit in opposition was filed and there is no affidavit evidence to this effect. The Writ was issued on 19th March, 2009.

9.	Section 4(1) of the Limitation Act Cap 345 states as follows:

"4-(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

(a)…..;

(b)…..;

(c)…..;

(d)…..;

Provided that-

(i)	 In the case of actions 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 or any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consists of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and

10.	Clearly the Writ was issued on 19th March, 2009 which is outside the limitation time the Plaintiff cannot rely on the case of Tawake v Air Fiji Ltd [1996] FJHC 165 as it can be clearly distinguishable as in that case clearly the registry was closed on the date of expiry of the limitation time and every next day the Writ was issued. 

11.	Since there is no affidavit in opposition file by the Plaintiff, the court cannot decide on the date of submission of the writ to the office and in any event the Tawake v Air Fiji Ltd [1996] FJHC 165 case cannot be cited as in that case there were clear evidence of the date on which the writ was submitted and it was clear that it was submitted for filing in the registry before the expiry of the limitation period. In that case the plaintiff filed the writ on the following Tuesday, as the registry is closed on weekend and also on Monday, which was a public holiday.

12.	The Plaintiff in this case has filed this case on 19th March, 2011. The alleged cause of action has arisen on 7th March, 2011 and accordingly the limitation period ends on 8th March, 2011 since the date of incident and the date of filing has to be excluded, the writ could be filed by latest on 9th March, 2011 and any date after that is clearly statute barred

13.	The Writ was issued on 19th March, 2009 which is clearly outside the limitation period.

14.	The White Book (1999) at para. 18/19/11 states as follows:

"….Thus, where the statement of claim discloses that the cause of action arose outside the current period of limitation and it is clear that the defendant intends to rely on the Limitation Act and there is nothing before the Court to suggest that the plaintiff could escape from that defence, the claim will be struck out as being frivolous, vexatious and an abuse of the process of the Court (Riches v Director of Public Prosecutions [1973] 1 WLR 1019; [1973] 2 All ER 935, CA, as explained in Ronex Properties Ltd v John Liang Construction Ltd [1983] QB 398)."

15.	The Plaintiff tries to argue the date of death as the date of cause of action. In a personal injury case the cause of action is not the death but the action or incident that resulted in the death. A person who encounters a personal injury and survives will always rely on the date of the incident that resulted in the injury as the date of cause of action. The death or subsequent disabilities will not change the date of cause of action and that is fixed irrespective of whether the person dies or not. So, in this case the alleged negligence of the 2nd Defendant is the cause of action and the date of performance of the operation according to the statement of claim is 7th March, 2006 and that is the date of cause of action.

Prejudice, Embarrass or Delay the fair trial

16.	In Pratap v Christian Mission Fellowship [2006] FJCA 41, the Court of Appeal held that:

"[23]	The correct approach to be taken by the courts in Fiji to an application to strike out proceedings for want of prosecution has been considered by this court on several occasions. Most recently in Abdul Kadeer Kuddus Hussen v Pacific Forum Line (ABU 0024/2000 – FCA B/V 03/3382) the court, readopted the principles expounded in Birkett v James [1978] AC 297; [1977] 2 All ER 801 and explained that:

"The power should be exercised only where the court is satisfied either (i) that the default has been intentional and contumelious eg. Disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay would give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the Defendants either as between themselves and the Plaintiff or between each other or between them and a third party."

17.	The Court on its own motion issued a notice to show cause in terms of Order 25 rule 9 but no intention to proceed and or show cause was done though time was granted for them to do that and the 1st Defendant filed and served this application to strike out the action on 10 May 2011. The Plaintiff has failed to respond to it and did not file an affidavit in oppostion. This again shows the Plaintiff's lack of interest in prosecuting this action.

18.	In Merit Timber Products Ltd v Native Land Trust Board [1994] FJCA 50 the Court of Appeal held that:

"Similarly when the delay is of the length that occurred in this case, the Court is entitled to conclude that witnesses are likely to have gone away and memories of relevant matters may have faded away or have clouded by subsequent events"

19.	The second named Defendant, against whom all allegations of negligence are made, is no longer in Fiji according to the affidavit in support of this application and that the absence of 2nd Defendant will cause hindrance to the defence and it is not possible for there to be a fair trial of the issues due to the lack of witnesses, such as the second named Defendant.

C.	CONCLUSION

20.	The claim of the Plaintiff is clearly statute barred and the Plaintiff has also not taken due diligence to prosecute this matter. The action is struck out on both grounds. The cost of this application is assessed summarily at $500.

The Court Orders as follows:

a.	The Plaintiff's action is struck off;

b.	The cost of this application is assessed summarily at $500, and the Plaintiff is ordered to pay the cost to the Defendant.

Dated at Suva this 13th Day of September, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva