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Siganisucu v Mudallar [2011] FJHC 671; Action 297.2011 (24 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. 297 of 2011

BETWEEN:

EMA SIGANISUCU of Lot 91 Princes Road, Tamavua, Self Employed.
PLAINTIFF

AND:

SHAVINESH CHANDRA MUDALIAR f/n Chandra Pal Mudaliar of Lot 28 Vere Road, Laucala Beach Estate, Nasinu, Driver
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. D. Singh of Daniel Singh Lawyers for the Plaintiff
Ex parte summons for the extension of time

Date of Hearing: 17th October, 2011
Date of Ruling: 24th October, 2011

RULING

1. INTRODUCTION
   

1. The Plaintiff is seeking extension of time to file the writ of summons since the time period for filing in terms of the Limitation Act has expired. The summons indicates that this application is made pursuant to Section 16(3) and 17(1) of Limitation Act. The Plaintiff has filed an affidavit in support and there he claims that he suffered scars and tissue injuries due to the motor accident and the delay was due to failure on the part of the hospital to provide a medical report. The Plaintiff's alleged 'injury' is described as 'scars and soft tissue injury' in the affidavit in support of this application, she does not state how long he was hospitalized or in which hospital that he obtained treatment and no history of any treatment was filed in the affidavit in support. Section 17(2) of Limitation Act which clearly required the party seeking extension to adduce evidence establishing a cause of action. At the same time there is no satisfaction of the requirements contained in Section16 (3), which required the Plaintiff to prove that facts of a decisive character were at all times outside her knowledge. In order to obtain leave for extension of time for personal injury action the Plaintiff has to satisfy above two factors and the Plaintiff has failed both on evidence adduced and the leave should be refused.
   

2. LAW AND ANALYSIS
   

2. Part III-D of the Limitation Act refers to special provisions applicable to actions in respect of personal injuries, and Sections 16 -23 deals with the extension of time. The extension of time has to be sought from the court and court is required to follow the establish principles in the law on extension of writ and certain requirements has to be fulfilled, in order to grant the extension. It is clear that section 16 and 17 has to be red together and state as follows.
   

"D – SPECIALPROVISIONS APPLICABLE TO CERTAIN ACTIONS IN RESPECT OF PERSONAL INJURIES

Extension of time limit for actions in respect of personal injuries

16.-(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-

(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.

(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-

(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.

(4) For the purposes of subsection (3), reference to the three-year period relating to a cause of action means a reference to the period of three years from the date on which that cause of action accrued:

Provided that-

(a) in relation to any cause of action in respect of which, by virtue of section 11, an action could have been brought after the end of the period of three years from the date on which that cause of action accrued, any such reference to the three-year period relating to that cause of action shall be construed as a reference to the period up to the end of which an action could, by virtue of that section, have been brought in respect thereof;

(b) in relation to a cause of action in respect of which, by virtue of section 15, the period of limitation did not begin to run until a date after the cause of action accrued, any such reference to the three-year period relating to that cause of action shall be construed as a reference to the period of three years from the date on which, by virtue of that section, the period of limitation began to run.

(5) Nothing in this section shall be construed as excluding or otherwise affecting-

(a) any defence which, in any action to which this section applies, may be available by virtue of any provisions of any Act other than those contained in subsection (1) of section 4 (whether it is an Act imposing a period of limitation or not) or by virtue of any rule of law or equity; or

(b) the operation of any Act or of any rule of law or equity which, apart from this section would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.

17.- (1) Any application for the leave of the court for the purposes of section 16 shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications which are made after the commencement of a relevant action.

(2) Where such an application is made before the commencement of any relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) to establish that cause of action, apart from any defence under subsection (1) of section 4; and

(b) to fulfill the requirements of subsection (3) of section 16 in relation to that cause of action.

(3) Where such an application is made after the commencement of a relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) to establish that cause of action, apart from any defence under subsection (1) of section 4; and

(b) to fulfill the requirements of subsection (3) of section 16 in relation to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 4.

(4) In this section, "relevant action", in relation to an application for the leave of the court, means any action in connection with which the leave sought by the application is required.

3. The fulfillment of the requirements is two prone in terms of Section 16(3) and Section 17(2) and the Plaintiff is required to fulfill both conditions in order to obtain an extension.
   
4. In this case the Plaintiff is not seeking extension due to disability and first, on the evidence adduced by or behalf of the plaintiff it should be sufficient to establish a cause of action in terms of Section 17(2) (a) and to fulfill the requirements in terms of 16(3) by proof of material facts were outside the knowledge of the Plaintiff.
   
5. The Plaintiff has to establish that '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 that is stipulated in Section 16 (3)(a) and (b).
   
6. The interpretation of the words 'material facts relating to a cause of action' is contained in Section 19 of the Limitation Act and the interpretation is an exclusive interpretation and not an inclusive one since it has used the word 'means' as opposed to 'includes' where other similar circumstances can be included. So only the instances given in the interpretation can be considered in the interpretation since the word 'means' was used. The Section 19 interprets the material facts relating to the cause of action as follows.
   

'Meaning of "material facts relating to a cause of action"

19. 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.'

100. ANALYSIS
     

7. It is clear that Plaintiff's reason for the delay cannot be included in any of the above instances contained in either any disability contained in Section 11 or Section 19(a), (b) or (c). In the affidavit in support the Plaintiff states the reason for the delay was due to failure to provide a medical report by CWM Hospital which cannot be included in the reasons for extension in law relating to the extension of time. It has to be understood that there is no general discretion granted to the court, except the express provisions contained in the Limitation Act as mentioned above in this ruling.
   
8. In the Fiji Court of Appeal in Fiji Electric Authority v Ganilau [1999] FJC 34 it was held that the provision contain in the Section 16-21 of the limitation Act are 'convoluted' and referred to the case of Halford v Brooker (1991) WLR 428 at 443 and stated as follows
   

'As pointed out in Halford v Brooker (1991) 1WLR 428 at 443, "knowledge" in this context does not mean 'know for certain and beyond possibility of contradiction'. The circumstances of their unfortunate accident were straight forward and obvious. Liability prima facie rested with whoever was responsible for erection and maintenance of the stay wire and with the occupier of the property, or both. A simple inquiry at any time could have ascertained that they were respectively the Electricity Authority and Public works Department. This appears to be a classical example of 'res ipsa loquitur' and were satisfied that the action could have been commence well before expiry of the limitation period. There was no basis for extending the time,......'

9. In that case death resulted from a live wire in a premises where official quarters were located and the Plaintiff could not obtain the statutory report of the Electricity Authority with regard to the incident in order to find out the liability of the parties, but the Fiji Court of Appeal held that such report was not necessary to file an action for damages though clearly there was an issue of liability as regard to identification of the parties. In this case the High Court decision that allowed the extension was overturned.
   
10. In the case Devi v Tarai [1998] FJHC 84(29 June 1998) was held before the Fiji Court of Appeal in Fiji Electric Authority V Ganilau [1999] FJC 34 and in any event the facts of that case can be easily distinguishable from the present one before me. In Devi v Trari the Plaintiff has sought legal advice in time, but due to a fault of the solicitor the Plaintiff was unable to institute the action in time it was held
    

'In the above situation it is apparent this was not the plaintiff's fault that the time to institute her claim has expired. Actually she did her best to have an action instituted as soon as possible but he circumstances of the case were such that she could not avoid the delay in doing so.

If anyone is responsible for the delay it is the Hospital which did not give the plaintiff's medical report in time and also Messrs H. M. Patel & Co who knowing that the claim has to be brought within 3 years did not ensure that the medical report was received in time.'

11. It is to be noted that in that case the Plaintiff satisfied the court on the requirements of Section17 (2) and that is clear from this passage in the judgment which stated as follows:

'In relation to 'firstly' the plaintiff has a medical report to establish her cause of action which is sufficient evidence.'

12. So, this can be clearly distinguishable from the case before me and it has to be considered in the light of the Court of Appeal decision of Fiji Electric Authority v Ganilau [1999] FJC 34 which is authoritative on this issue of extension of time in terms of Section 16 and 17 of the Limitation Act.
    
13. The judgment of Lord Reid in Central Asbestos Co Ltd v Dodd[1972]2 All E. R 1135 and stated as follows.
    

'Lord Reid, in particular in identifying the necessary elements of a claim for damages for personal injuries said at p 1139;

'Before a person can reasonably bring an action he (or his advisors) must know or at least believe that he can establish (1) that he has suffered certain injures;(2) That the defendant (or those for whom he is responsible) has done or failed to do certain acts; (3) that his injuries were cause by those acts or omissions; and (4) that those acts or omissions involved negligence or breach of duty'.

14. Applying the above principles that was laid down by Lord Reid in Central Asbestos Co Ltd v Dodd [1972]2 All E. R 1135 it is clear that the Plaintiff in this case could have filed an action within three years as she had the knowledge of the alleged injury and ample time to obtain a medical report and there is no evidence of such a request for a medical report except for the request made by the solicitor in 2011.
    
15. In any event the Plaintiff has not fulfilled the first requirement of establishing a cause of action as it has failed to adduce evidence that is acceptable to court. Specially considering that alleged injury was 'scars and injury to soft tissues' which needs to be established as a result of the alleged incident. The nature and extent of injury needs to be fully described.
    
16. In the case of Devi v Tarai [1998] FJHC 84(29 June 1998) it was decided that failure to obtain a medical report can be considered as a reason for failure to file within time period but a clear distinction should be made to the facts of that case from the one before me.
    
17. In Devi v Tarai [1998] FJHC 84(29 June 1998) it was held as follows
    

'Also under section 17 of the Act a Court has the discretion to grant leave in respect of a cause of action to which the application relates is, firstly, the evidence adduced on behalf of the applicant is sufficient to establish a cause of action and secondly, matter constituting the cause of action were outside the applicant's knowledge (actual or constructive) when the action commenced.'

So, in that case there was clear fulfillment of the first requirement and then one could proceed to the second requirement. So, without establishing a cause of action one cannot proceed to the second requirement as contained in Section 16(3). In any event the ratio in this case has to be applied in the light of the ratio in Fiji Court of Appeal decision in Fiji Electric Authority v Ganilau [1999] FJC 34 which was decided in 1999.

4. CONCLUSION
   

18. In the circumstances the Plaintiff has failed to establish the requirements contained in Section 17(2) namely a cause of action against the Defendant on the evidence adduced in this application for extension of time.
    

5. FINAL ORDERS
   

1. The summons for extension of time is struck off.
   
2. No cost.
   

Dated at Suva this 24th day of September, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva