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Wati v Kumar [2012] FJHC 1073; Civil Action 23.2011 (11 May 2012)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 23/11

BETWEEN

GYAN WATI of Naduna Labasa as the
administratrix in the estate of NIRMAL ASHWIN AJESH late of Naduna, Labasa, Digger operator.
APPLICANT

AND:

SANJESH KUMAR digger operator.
1st RESPONDENT

AND:

VUKSICH & BORICH FIJI LTD a limited
liability company having its registered office at Denarau Island, Nadi.
2nd RESPONDENT

Appearances:

Applicant: Maqbool & Co.

RULING

Introduction

By an Ex-parte Notice of Motion filed on 6 July 2011 March 2010 the Plaintiff seeks an extension of time within which she may issue a Writ of Summons against the Defendants. the Defendants. The Motion was supported by an affidavit of one Uday Pratap, Solicitors Clerk of Wailevu Labasa. The said Uday Pratap is the law clerk at the Solicitors office acting for the Applicant. When the matter was first called I had indicated to the Counsel appearing that the affidavit in support of the motion should be sworn by the applicant. The reason for that is that in applications such as this where the knowledge of the material facts to be put before for the court so it could arrive at a conclusion are those facts known to the Applicant or persons who have a right of action. Leave was then granted for a further affidavit or supplementary affidavit to be filed which was issued on the 9th September 2011. A further application to file further affidavit was granted to the Applicant and this affidavit was filed on the 11th October 2011.

The application was made pursuant to Section 16(1) and 17(1) of the Limitation Act and the inherent jurisdiction of the Court.

Background

The Applicant is the mother of and the Administratrix in the Estate of the late Nirmal Ashwin Ajesh of Naduna Labasa, digger operator. On the 15 June 2008 the late Mr. Nirmal Ashwin Ajesh (hereinafter referred to as Mr. Ajesh) was fatally injured when a co worker Mr. Sanjesh Kumar dropped a digger bucket on him killing him instantly. Both men were working as digger operator at Denarau Island at the time. It appears that the both men were then working with a Civil Engineering contractor called Vuksich & Borich (Fiji) Limited of Denarau Island.
The Applicant obtained letters of administration on the 24 March 2009 and for the next few months through her Solicitors made enquiries about the accident from the Civil Engineering contractor Vuksich & Borich (Fiji) Ltd. The last correspondence from the company was by a letter dated 20 October 2009 in which it stated that their investigation about the accident is currently ongoing and that they will write a formal response in due course. The company further said that in the interim they deny liability and since then has not made any further contact.

The Application

In the affidavits filed in support of the application the following facts came to light:-

1. The applicant lived in Naduna, Labasa;

2. The late Mr. Ajesh was working at Denarau Island Nadi when he was fatally injured;

3. The accident happened on the 15 June 2008;

4. Letters of administration was obtained on the 24 March 2009;

5. Attempts to obtain reports of the accident were made until 20 October 2009 when no further correspondence was entered into;

6. That the following facts not known to her came to her knowledge on or about the 1 July 2011:-

(i). The status of the 1st Defendant;

(ii). The late Mr. Ajesh's employment;

(iii). The relationship between Mr. Ajesh and the 1st Respondent; and

(iv). The reason for the presence of Mr. Ajesh under the digger at the time of the accident.

7. That the above facts were essential before the Applicant could file a claim.
Before looking at the submission made by Counsel for the Applicant, it is necessary in my view, to comment on the affidavit initially filed in support of the application. This affidavit was deposed by the Solicitor's clerk. The High Court has made numerous comments about the need for practitioners to use only those who have direct knowledge of matters to depose affidavits, particularly affidavits which are used for interlocutory applications. An authority to depose of affidavits without a written authority annexed to the affidavit is not an authority to depose an affidavit. Even if a written authority is attached, any discrepancy in the facts deposed can be detrimental to a client's interest. Order 41 rule 5 of the High Court Rules is quite clear on the contents of an affidavit, in the first instance it must contain only facts as the deponent is able of his own knowledge to prove and secondly it may contain statements of information or belief with the sources of those belief and grounds thereof. A statement similar to the one in paragraph (5) of the affidavit in support of the application which states simply ..."THAT the material facts of the cause of action were of a decisive character, were outside actual and constructive knowledge of the Plaintiff, which were caused by the reasons of neglect by the 2nd Defendant." is totally unacceptable and reflects badly on the importance of the matter needed to be determined and is contrary to the requirement of the rules.

The Applicant's submission

The Applicant's counsel made a very brief submission which is wholly reproduced below:-

The applicants intended claim against the defendants are in two parts.

The first part of the claim deals with unlawful death through deliberate malicious act and secondly death arising out of negligence being an alternative claim.

It is the alternative claim that is stature barred pursuant to the Limitation Act. However, section 16(1) and 17(1) of the Limitation Act Cap 35 gives powers to this Court to give leave.

The relevant section of the Limitation Act gives this Court powers to grant leave without notice to the prospective defendants who however have right to discharge: OWNERS OF SS KALIBIA – v – WILSON [1910] HCA 77; (1910) 11 CLR 689, 694.

In this case the plaintiff in her sworn evidence in her Supplementary Affidavit sworn on 9th September 2011 and filed on 12th September 2011 unequivocally says as follows:

1. UP until recently the following matters that were not in my position (possession)are:
   

1. The status of the 1st defendant.
2. The actual employment of my son.

100. If my son was at work at the date of the accident.

d. The relationship between my deceased son and the 1st respondent.

e. The reason for presence of my son under the digger at the time of the accident.

It is respectfully submitted that in order to (for) the plaintiff to have a cause of action against the prospective 1st defendant, she must have those material facts within her knowledge.

It is respectfully submitted that the material facts would establish the prima facie cause of negligence. Furthermore, the chronology of events stated by the applicant in the proceedings suggest that she is in continuous contact with the purported 1st defendant but could not make any contact with the prospective 2nd defendant.

Finally, the plaintiff further says that the matters which are relevant to establish the cause of action came to her knowledge on 1st July 2011.

It is respectfully submitted that the plaintiff has fulfilled the requirements of section 16(1) and 17(1) of the Limitation Act. Furthermore, this is not an open and shut case and defendants can come back to court if they are of the view that leave was not properly granted.

Accordingly, leave must be granted to the applicant to institute proceedings for negligence against the prospective defendants.

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 15 June 2008. 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 15 June 2011. However Section 16 (1) & (2) of the said Act enabled an extension of the time limit in respect of personal injuries in certain instances. This provision states:-

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.

So 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 these are where leave has been granted by the Court for an extension of time and where the requirements of subsection 3 are fulfilled. Section 16(3), 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. Therefore one must apply for leave to extend time within twelve months after the applicant has knowledge of the material facts and a failure to institute proceedings within that twelve month period is fatal for an application for leave. The application for leave must be made ex-parte as provided for under section 17(1) however it must fulfil the requirement of Section 16(3). That is, it must 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 could 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.

Therefore any one of these three material facts needed to be known by the applicant sufficient for it to issue a claim 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 an application for leave to extend time 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 are facts 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 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 advice 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.

Determination

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 15 June 2008. It appears from the information before the Court that the deceased Mr. Ajesh was a digger operator working with a Civil Engineering contractor at Denarau Island at the time of the accident. That he died as a result of injuries suffered when the digger bucket fell on him killing him instantly. On the 24 March the applicant obtained letters of administration of the estate of her deceased 's son and it can be presumed from the information before the court that she sought legal advice. It appears that she instructed her solicitors to obtain information regarding the incident and on the strength of her instruction her solicitors corresponded with the Civil Engineering contractor who employs her son for information regarding the accident. The latest record of any correspondence between the Applicant's solicitors was dated the 20th October 2009 in which the contractor stated that their investigation into the event is currently ongoing and as such they will revert with a formal response to the solicitor's letter in due course, and in the meantime though they are denying liability. The Applicant, when no further correspondence was forthcoming and the limitation period having expired made this application. What other efforts were made by her solicitors to obtain the information for her is unclear. What is clear from her affidavit, however, is that certain information and facts became known to her on the 1st July 2011 and those facts were those deposed by her in her affidavit sworn on the 9 September 2012. Those facts were that:-

1. The status of the 1st Defendant;

2. The actual employment of her son, the deceased;

3. If her son was at work at the time;

4. The relationship between her son and the 1st Respondent; and

5. The reason for her son's being under the digger at the time.

She obtained the information on the 1st July 2011 filed the application on the 7th July 2011 and therefore she is within time in making the application for leave.

The question now is, are those facts which became known to her on the 7th July material facts and, if so, are the material facts of a decisive character? This is one of the requirement of section 16(3) of the Limitation Act and its compliance is necessary before leave could be granted.

The requirement is that the applicant should know that there is a cause of action in this regard her knowledge that her son died as a result of an incident at work is sufficient to find a cause of action. However the material facts relating to his death was unknown to her or were outside her knowledge at the time and that she became aware of these facts within twelve months prior to making this application. The Applicant lives at Naduna a rural community outside Labasa Town and the late Mr. Ajesh her son died in Denarau Island in Nadi and it is safe to assume that it would be difficult for her to know the exact circumstances of her son's death given the distance between the two places. But she knew enough to seek legal advice obtain letters of administration and make further enquiries and later obtained those facts which were considered necessary to issue a writ. The status of the 1st Defendant, her son's employment and whether it happened at work and the relationship between her son and the 2nd Defendant are necessary before her claim could be filed. I am satisfied that the facts which came to her knowledge were of a decisive character and hence necessary for the issue a claim.

Under normal circumstances the period allowable for the Applicant to issue a writ was the 15th June 2011, three years from the date of the accident that is from 15 June 2008 and she sought leave on the 7 July 2011. This period of delay is minimal given the circumstances and as a result widens the Court's discretion to grant leave. 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.

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.

I am of the view that the Applicant has satisfied the requirement necessary for the Court to exercise its discretion to grant leave to issue a writ and I grant it accordingly.

Conclusion

The application is therefore granted.

Orders

1. Leave grant to extend time to issue proceedings;
2. Applicant to issue writ within 14 days from this date.
11 May 2012.

........................................
Master Harry Robinson
High Court, LABASA