IN THE HIGH COURT OF THE REPUBLIC OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

CIVIL ACTION NO. HBC 210 OF 2008L

BETWEEN:

RAMESH CHAND of Navatu, Ba, Unemployed
Plaintiff

AND:

T F JAN BULLDOZING COMPANY LTD a limited liability company having its registered office at Koula Road, Varadoli, Ba.
Defendant

AND:

NEW INDIA ASSURANCE COMPANY LIMITED having its registered office at 2nd floor, Harifam Centre, Greig Street, Suva.
Third Party

Messrs Chaudhary& Associates, Solicitors for the Plaintiff
Messrs Koyas Barristers & Solicitors for the Defendant
Messrs Krishna & Co, Barristers & Solicitors for the Third Party,
Date of Hearing: 20 September 2013
Date of Ruling: 30 October 2013 

RULING

Introduction

[1] This application relates to Interim Payment filed by the Plaintiff pursuant to Order 29 Rules 10 and 11 of the High Court Rules 1988 (HCR) and the Inherent Jurisdiction of the High Court. The application has been supported with affidavit of Ramesh Chand (the Plaintiff).

[2] On 28 March 2013 The Defendant filed affidavit of Muskesh Chand in opposition and the Plaintiff filed affidavit in reply to affidavit of Mukesh Chand in opposition.

[3] The Plaintiff filed his writ of summons and statement of claim on 9 October 2008 claiming, inter alia, damages against the Defendant. The Defendant filed its statement of defence on 13 January 2009 and stated, denying negligence on the part of the driver of the skidder, that the Plaintiff voluntarily consented to accept such risk and to waive any claim in respect of any injury or damage that may be occasioned to him by reason of such acts or conduct of the driver of the skidder, alternatively the Defendant also stated that the Plaintiff was guilty of contributory negligence. On 3 February 2009 the Plaintiff filed reply to the statement of defence and denied the allegations made in the statement of defence.

[4] In the meantime, the Defendant filed an inter parte notice of motion seeking leave to issue the Third Party Notice against the New India Assurance Co. Ltd. Accordingly, on 23 November 2010 the Court granted leave to the Defendant to issue the Third Party Notice on the New India Assurance Co. Ltd. In pursuance of this leave, the Defendant filed statement of claim against the Third Party on 26 November 2010. Following the Third Party Notice, the Third Party appeared through its solicitors and filed a summons on 13 April 2011 to strike out the Defendant’s statement of claim against the Third Party. Afterwards, the Plaintiff filed an amended statement of claim against the Third Party. On 6 August 2011 the Third Party filed its amended statement of defence and counterclaim against the Defendant’s amended statement of claim against it. The Third Party did not participate in these proceeding as they would not be affected by these proceedings. On application made on behalf of the Third Party the Court granted leave for them to be excused from participating in these proceedings.

Factual Background

[5] The Plaintiff was an employee of the Defendant Company earning a net income of $73.60 as a truck driver. The Defendant was the owner of a skidder. One Lutu, another employee of the Defendant was the driver of the skidder. According to the Plaintiff on or about 8 August 2007 the Plaintiff’s foreman, one Ali instructed him to work as a Cable Boy for the skidder, the Plaintiff sustained serious personal injuries when the skidder stumbled over while driven by the said Lutu. He alleges that the accident occurred due to the negligence of the driver.

[6] The Plaintiff filed his writ of summons on 9 October 2008 claiming damages against the Defendant. His claim is based on loss and damage, pain and suffering, loss of amenities of life and loss of earning capacity as a result of the incident that occasioned on 8 August 2007. 

The Law

[7] O.29 r.10 of the HCR provides that: 

Application for interim payment (O.29, r.10)

10.-(1) The plaintiff may, at any time after the writ has been served on a defendant and the time limited for him to acknowledge service has expired, apply to the Court for an order requiring that defendant to make an interim payment.

(2) An application under this rule shall be made by summons but may be included in a summons for summary judgment under Order 14 or Order 86.

(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.

(4) 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.

(5) Notwithstanding the making or refusal of an order for an interim payment, a second or subsequent application may be made upon cause shown.

Order for interim payment in respect of damages (O.29, r.11)

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 has 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 (Emphasis added).

(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 insured in respect of the plaintiffs claim; 

(b) a public authority; or

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

[8] In the case of GKN Group v Revenue and Customs Commissioners [2012] 3 All ER 111, [2012] EWCA Civ 57 the Court held with regard to interim payment. Interpreting CPR 25.7 (1) (c) [similar to our HCR O.29 r. 11 (1) (c)] held as follows:

“Held – (1) On the true construction of CPR 25.7(1) (c), it was clear that the claimant seeking the interim payment had the burden of satisfying the court that the necessary conditions had been fulfilled for it to consider exercising the power to grant an interim payment order. The standard of proof to which the court had to be satisfied was the balance of probabilities. The first thing that a judge considering an application for an interim payment had to do was place himself in the hypothetical position of being the trial judge and then ask himself whether he would be satisfied (to the civil standard) on the material before him that the claimant would obtain judgment for a substantial amount of money from the defendant); dicta of Henderson J in Heidelberg Graphic Equipment Ltd v Revenue and Customs Comrs [2009] STC 2334 at [14] doubted.

(2) There was nothing in the wording of CPR 25.7(1) (c) which required that an application for an interim payment order could only be made before there was any trial of any issues before a judge. Nor was there any prohibition in making an application after the trial of certain issues before a judge. 

(3) The phrase 'would obtain judgment for a substantial amount of money' meant that the court had to be satisfied that if the claim were to go to trial then, on the material before the judge at the time of the application for an interim payment, the claimant would actually succeed in his claim and, furthermore, as a result he would actually obtain a substantial amount of money. The court had to be so satisfied on a balance of probabilities. The only difference between the exercise on the application for an interim payment and the actual trial was that the judge considering the application was looking at what would happen if there were to be a trial on the material he had before him, whereas a trial judge would have heard all the evidence that had been led at the trial then would have decided which facts were proved and whether the claimant had succeeded. In the latter case, if a judge had to decide whether a fact happened, either it had or it had not: the law operated a binary system and there was no room for a finding that it might have happened. The same was true in the case of an application under CPR 25.7(1) (c). It was not enough if the court were to be satisfied (to the standard of a balance of probabilities) that it was 'likely' that the claimant would obtain judgment or that it was 'likely' that he would obtain a substantial amount of money. Further, what constituted 'a substantial amount of money' had to be judged in the context of the total claim made; Re B (children) (sexual abuse: standard of proof) [2008] 4 All ER 1 applied; British and Commonwealth Holdings plc v Quadrex Holdings Inc[1989] 3 All ER 492 considered.

 (4) In general, if the court was satisfied that the conditions in CPR 25.7(1)(c) were satisfied it should order an interim payment unless there was a sufficient specific reason not to do so.

(5) In approaching the question of ascertaining what would be a 'reasonable proportion of the likely amount of the final judgment', the court would already have concluded that the claimant would, if the claim went to trial, obtain judgment for a substantial amount of money. In reaching that conclusion the court would often have had to decide, on the material before it, what sum it considered that the claimant would obtain at trial in order that the court considering the interim payment application could conclude whether or not the judgment amount would be a substantial amount of money. Consequently, in many cases it was unlikely that there would be very much more, if anything, that a court had to do for the purposes of deciding what the 'likely amount of the final judgment' would be for the purposes of CPR 25.7(4). In cases where it was clear that the claimant would obtain judgment on the claim and it would be for a substantial amount, but on the material available at the time of the interim payment application it was not entirely certain what that sum might be the judge had to take a view, based on the material before him, on the likely amount of the final judgment in order to decide what constituted a reasonable pro-portion of that likely amount so as to make the interim payment order. It was not the claimant's calculation of its entitlement that mattered, but the court's assessment of the likely amount of the judgment.

(6) In the instant case, GKN had satisfied the court that, on the material before it, if the claim went to trial GKN would obtain judgment and would recover the figure of £1,490,932. That sum constituted a substantial amount of money, even though the total amount sought was very much larger. Further, on the facts it was a 'reasonable proportion' of the 'likely amount of the final judgment'. The conditions in CPR 25.7 had therefore been satisfied and, accordingly, the appeal would be dismissed".

Discussion and decision

[9] I now proceed to considering the Plaintiff's application for an interim payment in the light of above law and case authorities. The Plaintiff is seeking interim payment in the sum of $5,000.00. He has made this application pursuant to HCR O.29 r.11 (1) (c). In term of O. 29 r. 11 (1) (c) the Court may order interim payment of such amount as it thinks just on the ground that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent (the Defendant). Nonetheless, such amount to be ordered as interim payment should 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.

[10] The application for interim payment must be supported by an affidavit verifying the amount of damages, debt or other sum to which the application relates and the ground of the application and exhibiting any documentary evidence relied on by the plaintiff. These requirements are mandated by HCR O. 29 r. 10 (3). The Plaintiff in his affidavit in support verifies the damage he sustained as a result of the accident and also exhibited documents marked "A- D" in his affidavit in support. The Plaintiff therefore complied with HCR O.29 r. 10 (3) requirement. The Defendant has filed an affidavit of Mukesh Chand in opposition to the summons for interim payment filed by the Plaintiff.

[11] In order to determine that whether the Plaintiff would obtain a judgment for substantial damages, I am going to place myself, as was decided the case of GKN (supra) in the hypothetical position of being the trial judge and then ask myself whether I would be satisfied (to the civil standard) on the material placed before me.

[12] The Plaintiff seeking the interim payment has a duty to satisfy the Court that he would obtain a judgment for substantial damages against the Defendant. 

[13] The materials that I would consider in making my decision whether the Plaintiff is entitled to the interim payment or not are: (a) affidavit of the Plaintiff in support of the application, his affidavit in reply to the affidavit of Mukesh Chand in opposition to the application, (b) affidavit of Mukesh Chand in opposition to the application and (c) the respective exhibits annexed to the respective affidavits.

[14] The Plaintiff deposes in his affidavit in support that on 8 August 2007 he was injured during and in the course of his employment with the Defendant. He also states that the medical report from the Lautoka Hospital dated 21 June 2012 (B) indicates that he has incapacity of 10%. He further says that he was earning $120.00 per week. He says the Defendant's solicitors did not reply to the request for an interim payment sent by his solicitors (C). He specifically states that under section 8 of the Workmen Compensation Act he is entitled to a maximum sum of $3, 120.00 in view of his earnings at the time of the accident as shown LD Form/c/1 filed by the Defendant.

[15] In affidavit in opposition the Defendant states that the Plaintiff was an employee of the Defendant Company on 8 August 2007 as driver and he was injured on the said date however the Defendant disputes that the Plaintiff was acting in the course of his employment. The Defendant (sic) on 8 August 2007 was present at the working site at Namara, Ba and had decided on his own to take a ride on the skidder for his own leisure while the skidder was being driver (sic) by another employee. The Defendant further says that the accident occurred when the skidder, the Plaintiff was riding on, developed mechanical problems while ascending a hill and rolled backwards. The brake did not work as the skidder rolled backwards and driver, despite warned by the driver of the skidder, the Plaintiff refused to jump of the skidder. The Defendant also says that the Plaintiff is statute barred since he had failed to comply with the requirement of the Workmen Compensation Act.

[16] Briefly, the Defendant's defence to the claim for damage appears to be threefold. Firstly volenti non fit injuria (Latin term meaning "to a willing person no injury is done"), the legal doctrine that a person who willingly and knowingly places themselves in a position of danger cannot later sue for damages and injuries that may result. Secondly, contributory negligence and thirdly the accident did not occur during and in the course of employment.

[17] The Defendant had lodged with the Ministry of Labour LD form/c/1- a notice given by employer in case of injury to, or death of, a workman under section 14 of the Workmen Compensation Act. The Defendant could not deny giving such notice in his affidavit in opposition. If the alleged accident had not happened in the course of employment, the Defendant would not have filed the LD form notice. Giving the notice required by section 14 of the Workmen Compensation Act after the accident would imply that the accident occasioned during and in the course of employment.

[18] The Defendant states that the accident occurred due to mechanical problem. Mr Mukesh Chand, a Senior Technical Officer who sworn affidavit in opposition on behalf of the Defendant states that the accident occurred due to mechanical problem. The Court would not be in a position to accept that proposition in the absence of any vehicle examination report immediately or soon after the accident. The Defendant did not annex any such report to his affidavit in opposition. It is not clear that Mr Mukesh Chand was present at the scene at the time of the accident. Then how can he say that the Plaintiff volunteered to take a ride on the skidder for his leisure?

[19] The defence that the Plaintiff had also contributed to the accident, if accepted, will only minimize the damage claimed by the Plaintiff, but will not impair his claim.

[20] The Defendant also states in their affidavit in opposition that the Plaintiff would not have sustained any injury or would have sustained less injury if he had jumped off the skidder when the driver warned him to do so. One can never say so. Sometimes, he might have sustained more injuries if he had jumped off the skidder. This is a hypothetical thinking. The court cannot accept the position that the Plaintiff would have sustained no injury or less injury if he had jumped off the skidder. Moreover, there is no affidavit evidence of the skidder driver to show that the Plaintiff volunteered to have a ride on the skidder for his leisure and he warned the Plaintiff to jump off when the skidder facing mechanical problems.

[21] Furthermore, the Defendant says the Plaintiff cannot receive any compensation under the Workmen Compensation Act as he is statute barred in that he has failed to comply with requirement of the Workmen Compensation Act-the requirement as to notice of accident and application for compensation under section 13 of the Workmen Compensation Act. Counsel for the Plaintiff argued that the Defendant had 'personal knowledge of the accident' and the Plaintiff was 'rushed to the Rakiraki Hospital' presumably by the Defendant's employees. The Defendant's skidder was involved. Surely the Defendant knew about the accident. If I were the judge hearing case at the trial, I would be inclined to accept these lines of argument.

[22] The Defendant Company is a limited liability company registered in Fiji and is engaged in the business of civil engineering, earthmoving contractors, plant hirers and suppliers of gravel. It can be said that the Defendant Company is a substantial company with major assets. The Defendant is a person whose means and resources are such as to enable him to make the interim payment. This satisfies the requirement of HCR O.29 r. 11 (2).

[23] Upon considering the affidavits filed by the parties and the documents exhibited to their affidavits and submissions made by the counsels, I am satisfied on a balance of probabilities that if the matter proceeded to trial, the Plaintiff would actually obtain judgment for substantial damages against the Plaintiff, as a result he would obtain a substantial amount of money.

[24] Now, I move on to determine the amount of interim payment. The amount of interim payment should 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 (HCR O.29 r.11 (1) (c)).

[25] The Plaintiff claims damages against the Defendant under common law of negligence or alternatively under Workmen Compensation Act. He claims the amount of $5,000.00 as interim payment. In his affidavit in support that he verifies that will be entitled to recover at least $3,120.00 under the Workmen Compensation Act. The defendant had pleaded contributory negligence on the part of the Plaintiff. As stated earlier this will only mitigate the damage. There is no counterclaim against the Plaintiff. In the circumstances, I think it would be just to order the Defendant to pay the sum of $4,000.00 to the Plaintiff as the interim payment with the costs summarily assessed at $350.00.

[26] The interim order made in these proceeding should not be pleaded or disclosed to the Court at the trial unless the Defendant consents or the Court so directs (HCR O.29 r.15).

Final Orders

(a)	There shall be orders against the Defendant to pay to the Plaintiff the sum of $4,000.00 as interim payment with the costs summarily assessed at $350.00;

(b)	The fact that an interim payment order was made shall not be pleaded or disclosed to the Court at the trial unless with the consent of the Defendant; and 

(c)	The registry is directed to separate all the proceedings relating to the interim payment including this ruling from the action.

M H Mohamed Ajmeer
Acting Master
At Lautoka