In the High Court of Fiji
At Labasa
Civil Jurisdiction
Civil Action No.HBC 41of 2011

BETWEEN:

GeetaWati
First plaintiff

AND:

Keshmi Devi Singh
Second plaintiff

AND:

Rakeshwar Singh
First defendant

AND :

Manjula Devi
Second defendant

Sun Insurance Co Ltd
Third Party

Appearances : MrP.Lomaloma for the first and second plaintiffs
 MrS.Sharma for the first and second defendants
 MrA.Ram with Mr.K. Ratule and Ms. N. Singh for the third party 
Dates of hearing : 21st and 22nd April,2015

JUDGMENT

1.	In these proceedings, the first plaintiff seeks damages against the defendants arising from the death of her daughter, a passenger in a vehicle driven by the first defendant and owned by the second defendant. The second plaintiff, a passenger in the same vehicle seeks damages for the personal injuries suffered by her. It is alleged that the death and injuries were caused by the first defendant’s negligent driving of the vehicle on 1st December, 2008. Default judgment was entered against the first defendant. Upon application by the second defendant, notice was issued to the third party. The third party filed statement of defence denying knowledge of the accident and liability.

Application to amend the statement of defence
2.	At the commencement of the hearing, Mr Sharma counsel for the second defendant moved to amend the statement of defence under Or 20,r 5 by the addition of the words “the claim is statute based under the Limitation Act”. He contended that this action filed on 1 December,2011, was out of time. The writ should have been filed on 30th November,2011, as the cause of action arose on 1st December,2008.

3.	Mr Ram, counsel for the third party submitted that the third party could be affected by the claim and supported the application for amendment. 

4.	Mr Lomoloma, counsel for the plaintiff objected to the proposed amendment. He stated that he was taken by surprise at the application to amend at this stage. He cited the following extract from the judgment of Tikaram J in Peter Sujendra v Chandrika Prasad,(1997) ABU 22 of 1997:

The test to be applied is whether the amendment is necessary in order to determine the real controversy between the parties and does not result in injustice to the other parties; if the test is met, leave to amend may be given even at a very late stage of the trial…However, the later the amendment the greater is the chance that it will prejudice other parties or cause significant delays, which are contrary to the interest of the public in expeditious conduct of trials. When leave to amend is granted, the party seeking the amendment must bear the costs of the party wasted, as a result of it.

5.	Mr Sharma, in reply said that the issue of limitation is important, as it would decide the entire case. There is no prejudice caused to the plaintiff. Finally, he submitted that if the amendment is not allowed, injustice would be caused to the defendants.

6.	Mr Ram submitted that the proposed amendment is a minor addition to the statement of defence, which could be made forthwith. The proposed amendment raises an important issue that needs to be tried, as it would determine the entire case. Finally, he submitted that the question of costs does not arise, as the trial can continue with the amendment.

7.	On 21st April,2015, in the exercise of my discretion ,I allowed the amendment for the reasons that follow.

8.	The White Book,Supreme Court Practice,1999,Vol 1 at page 379 provides General principles for grant of leave to amend(rr 5,7 and 8)-It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or errors in any proceedings." (see per Jenkins L. J. in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, p.546).

9.	On the point of mistakes and omissions made in the conduct of cases, as in the case before me, the White Book,(op.cit)states:

It is well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights… I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of rights on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right"(per Bowen L.J. in Cropper v. Smith (1883) 26 Ch. D. 700, pp. 710 – 711, with which observations A.L. Smith L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam (1896) 1 Ch. 108. P. 112).

In Tildesley v. Harper (1876) 10 Ch. D. 393, pp 396, 397, Bramwell L.J. said: “My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by this blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise." "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs" … An amendment ought to be allowed if thereby "the real substantial question can be raised between the parties," and multiplicity of legal proceedings avoided (Kurtz v. Spence (1888) 36 Ch, D. 774; The Alert (1895) 72 L.T. 124).

On the other hand it should be remembered that there is a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct defence or claim to be raised for the first time(see, per Lord Griffiths in Kettma v Hansel Properties Ltd[1987]A.C 189 at 220). (emphasis added)

10.	In Suva City Council v Ku March Ltd,(1997) FJHC 56, Byrne J said that a defendant had the right to apply for leave to amend its defence to avail himself of the Limitation Act.

11.	In my judgment, the plaintiff would not be prejudiced by the proposed amendment. The amendment arose from a stipulation in a statute: the Limitation Act. The final decision impinges on that issue. Accordingly, I allowed the statement of defence filed by the second defendant to be amended with the addition of the words "the claim is statute based under the Limitation Act".

12.	I agreed with Mr Ram that the matter of costs does not arise, as the trial can continue without an adjournment, in light of the particular amendment.

Preliminary issue
13.	The amendment to the statement of defence gives rise to the preliminary issue as to whether the writ was filed out of time, as contended by the defence. Counsel for the parties addressed me on this point and filed written submissions.

14.	Messrs Sharma and Ram contended that the limitation period expired on 30th November, 2011, since the cause of action arose on 1st December, 2008. Both counsel relied on the judgment in Naomi Naisoro v Manasa Senikarawa and Others,(HBC0011 of 2003). In that case, writ was issued on 08th January,2003. The act of negligence had occurred on 09thDecember,1999. Finnigan J stated that the action should have commenced on or before 08th December,2002.

15.	Mr Lomoloma submitted that in the present case, the cause of action accrued on 1st December, 2008. He argued that the date on which the cause of action accrued was excluded, in computing the three year limitation period stipulated in section 4 (1) of the Limitation Act. In support, he relied on section 51 of the Interpretation ActandOr3,r.2(2) of the High Court Rules.

16.	Section 4 (1) of the Limitation Act enacts that an action for "damages in respect of personal injuries" shall not be brought after the expiration of three years "from the date on which the cause of action accrued".(emphasis added)

17.	 The issue for determination is whether the date on which the cause of action arose is excluded, in computing the three year period.

18.	Section 51 of the Interpretation Act provides that in "computing time for the purpose of any written law, unless a contrary intention appears-

 (a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day of which the event happens orthe act or thing is done; (emphasis added)

19.	Mr Ram's riposte was that reliance cannot be placed on section 51, as it refers to a period of "days" from the happening of an event, not years.

20.	I do not accept that argument. In my view, the same principle must necessarily apply mutatis mutandis in the computation of the number of years, as laid down in the following authorities.

21.	As Halsbury, Laws of England, Vol 28, (4th Ed),para622 provides under the sub-title "When time begins to run": 

Actual of cause of action. In general the period of limitation under the Limitation Act 1939 begins to run when the cause of action accrues. In computing the period, the day on which the cause of action arose is excluded. (emphasis added, footnotes omitted)

22.	In Marren v. Dawson Bentley & Co., Ltd, (1961) 2 All E.R. 270 it was held that the day of the accident was to be excluded from the computation of the period within which the action should be brought.

23.	It is pertinent to note that in Naomi Naisoro v Manasa Senikarawa and Others,(op.cit.) as cited by Messrs Sharma and Ram, the matter of exclusion of the date on which the cause of action arose was not considered. That question did notarise for deliberation, as the writ in that case was very clearlyissued after the period of limitation of three years had lapsed. The writ was issued on 08th January,2003, when the act of negligence had occurred on 09th December,1999. 

24.	In my view, Finnigan J's statement in the course of his judgment, that the action should have commenced on or before 08th December,2002, was made per incuriam.

25.	In my judgment, the action by the first and second plaintiffs was filed within the time period set out in the Limitation Act. I answer the preliminary issue in favour of the plaintiffs.

26.	Orders
I hold that the action by the first and second plaintiffs was filed within the time period laid down in section 4 of the Limitation Act. The second defendant shall pay the first and second plaintiffs costs in a sum of $ 1000 summarily assessed within 14 days of this judgment.

24thApril, 2015

A.L.B. Brito-Mutunayagam
Judge