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Chand v Naidu [2016] FJHC 490; HBC93.2013 (13 May 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 93 OF 2013

BETWEEN : KRITESH CHAND of Lavusa, Nadi,
PLAINTIFF

A N D : KRISHNA KUMAR NAIDUandSHILVA NADAN of Lot 2, Solovi, Nadi and Chinakoti, Moto, Ba trading as TROPIKO EXPORTS.

1^st DEFENDANTS

AND : SHELVIN RITNESH KUMAR of Nasau, Nadi, Driver.
2^nd DEFENDANT

Mr.Rajendra PalChaudharyfor the Plaintiff.
Mr.WasuSivaneshPillayfor the first named first Defendant.

Date of Hearing: - 07^th December 2015
Date of Ruling : - 13^th May 2016

RULING

(A) INTRODUCTION

(1) The matter before me stems from the “Summons”filed by the 1^st named first Defendant pursuant to Order 19, Rule 09 of the High Court Rules, 1988 and the inherent jurisdiction of the Court seeking the grant of the following Orders;

THAT there be a stay of execution and further proceedings on the Default Judgment entered against the 1^st Defendant by the Plaintiff pending the outcome of this application;

THAT the Default Judgment entered by the Plaintiff be set aside unconditionally;

THAT the 1^st Defendant be given unconditional leave to file a Statement of Defence to the Statement of Claim of the Plaintiff;

THAT the costs of this application be costs in the cause;

SUCH further or other relief or orders that this Honourable Court may deem fit, just, expedient, necessary and equitable in the circumstances.

(2) The Summons is supported by an affidavit sworn by “Krishna Kumar Naidu”, the first named first Defendant.

(3) The Summons is vigorously resisted by the Plaintiff. The Plaintiff filed an affidavit in Opposition opposing the Summons followed by an affidavit in reply thereto.

(4) The Plaintiff and the first named first Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Counsel for the Plaintiff and the first named first Defendant filed a careful and comprehensive written submission for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1) What is the case before me? What are the circumstances that give rise to the present application?

(2) Theaction was instituted by the Plaintiff on 27^th May 2013, by way of Writ of Summons and Statement Claim seeking damages for personal injuries sustained by him from the Defendants.

(3) To give the whole picture of the action, I can do no better than set out hereunder the averments/ assertions of the pleadings.

(4) The Plaintiff in his Statement of Claim pleads inter alia;

(i) THAT all material times the First Defendants were trading as Tropiko Exports and were also the owners of a Truck registered number FA523.

(ii) THAT all material times the 2^nd Defendantwas driving the said Truck as the servant and/or agent of the First and Second Defendant and during the course of his employment with the First Defendants.

(iii) THAT all material times the Plaintiff was employed by the First Defendants as a vegetable packer and was a passenger on the said truck during and in the course of his employment.

(iv) THAT on or about the 25^th day of October 2012 the Second Defendant drove the said Truck so negligently, unskilfully, recklessly and carelessly on Queens Road, Nadi Airport near Westfield in the direction of Nadi Airport from Nadi that the said Truck went on its wrong lane and tumbled over on the side of the road.

PARTICULARS OF NEGLIGENCE

➢ Failing to keep any or any proper lookout;
➢ Driving at an excessive speed having regard to all the circumstance;
➢ Failing to stop, to slow down, to swerve or in any other way so to manage or control the said motor vehicle as to avoid the said accident;
➢ Driving onto the incorrect lane
➢ Driving below the standard of a careful and prudent driver.

(v) THAT on 29^th October 2012 the second Defendant pleaded guilty to the offence of Careless Driving and was convicted of the office of Careless Driving and was fined $200.00. The said conviction is relevant to the issue of negligence in the within action and the Plaintiff intends to rely thereon as evidence of the same.(?)

(vi) THAT as a result of the matters aforesaid the Plaintiff suffered severe personal injuries.

PARTICULARS OF INJURIES

He developed pain at the back radiating to both legs especially the left lower limb. Inability to move the left and the right knees and unable to sit cross legged. He complained of passing blood stain sputum.

ON EXAMINATION

Range of motion of the left and right hip diminished

Range of motion of the left and right knees diminished

Sensation normal

Motor weakness of the EHL of the right and the left side and weakness of the right and left hip flexors

INVESTIGATIONS

Radiological: X-rays revealed no bony injuries

DIAGNOSIS

Disc prolapsed of the lumber spine

Chest injury

Dislocation of the right shoulder

TREATMENT

➢ Pain relief
➢ NSAID
➢ Physcio therapy
➢ Walking Aid. He is still being reviewed at the Orthopaedic clinic.

(vii) THAT as a result of the matters aforesaid the Plaintiff has suffered los and damage, pain and suffering, loss of amenities of life and loss of earning capacity.

PARTICULARS OF SPECIAL DAMAGE

7 trips from Togo, Nadi to Nadi Hospital and return

At $20:00 per trip $140.00

[Clinic – by taxi]

5 trips from Togo, Nadi to Lautoka Hospital and return

At $80:00 per trip $400.00

[Clinic – waiting charges]

TOTAL $540.00

(viii) THAT in the ALTERNATIVE and without prejudice to the foregoing, the Plaintiff was injured during and in the course of his employment with the Defendants. The Plaintiff is entitled to an award under the WORKMEN’S COMPENSATION ACT (CAP. 94) the same to be calculated with reference to the Plaintiff’s earnings and incapacity.

(5) Wherefore, the Plaintiff prays for the following Orders;

The sum of $540.00 as per paragraph 7.
General damages for pain and suffering, loss of amenities of life and loss of earning capacity
Cost of future medical care
Any other and further relief that seem just to this Honourable Court
Interest
Cost of this Action
IN THE ALTERNATIVE an award under the Workmen Compensation Act

(C) THE CHRONOLOGY AND THE STATUS OF THE SUBSTANTIVE MATTER

27/5/2013 : Writ of Summons issued

30/5/2013 : The First Defendants were served

15/6/2013 : The Second Defendant was served

27/6/2013 : Acknowledgment of Service filed by the Defendants in person.

2/8/2013 : Default Judgment sealed against the Defendants.

22/10/2013 : ShilvaNadan, the second namedfirst defendant, was served with Notice of Assessment of Damages.

14/11/2013 : The Second Defendant was served with Notice of Assessment of Damages.

20/2/2014 : Krishna Kumar Naidu, the first named first Defendant was served with Notice of Assessment of Damages by advertisement in the Fiji Sun as per Order of the Court dated 18^th February 2014.

23/4/2015 : Assessment of Damages done.

10/7/2015 : Judgement delivered.

21/7/2015 : Judgement sealed.

2/11/2015 : Krishna Kumar Naidu issued Summons to set aside Default Judgement unconditionally.

(D) THE FIRST NAMED FIRST DEFENDANT’S SUMMONS TO SET ASIDE DEFAULT JUDGMENT.

(1) The first named first Defendant’s Summons to set aside the Default judgement is supported by an affidavit sworn by him dated 30^th October 2015, which is substantially as follows; (As far as relevant)

Para 6: THAT I wish to state that I was not personally served with any Writ of Summons and /or Statement of Claim, However, I have had occasion to inspect the Court file and I see an acknowledgement of service filed, which I expressly say is not signed by me.

7. THAT I came to know that there was a case against in June 2013 through my staff who are based in Solovi, Nadi, Fiji as at this particular time I was in New Zealand.

8. THAT my wife then emailed the Plaintiff’s solicitors on behalf of her father the 2^nd named 1^st Defendant and tried to resolve this matter amicably.

9. THAT there were various attempts to amicably resolve the within matter as the Plaintiff was in good terms with the 1^st Defendant’s and that we has taken care of him after the alleged incident.

Para 10. THAT that from 2013 to 2015 I was unaware of the matters that transpired in this case as I was not served any further documents by the Plaintiff and/or his counsel until about August 2015 when I received further documents vide facsimile.

13. THAT since I was not served with any further documents and since I remained in good terms with the Plaintiff and his family I was under the impression that the matter had been resolved and that due to our close relationship the Plaintiff had decided to discontinue the action against us.

14. THAT I wish to further state that during this period I have had to undergo emotional trauma as my wife had been diagnosed with cancer and had undergone intensive treatment. This required our presence in New Zealand and absolved a lot of time and energy hat kept us from work and from attending to matters.

20. THAT with respect to the case, the issue of liability and the quantum of damages assessed I believe I have a bona fide defence to the action because:

(i) I am aware that the 2^nd Defendant and the Plaintiff had indulged in alcohol the previous night and into the early hours of the morning of the accident;

(ii) I have been informed that the 2^nd Defendant and the Plaintiff were intoxicated at the time of the accident;

(iii) Due to the Plaintiff and the 2^nd Defendant indulging in alcohol and attending parties they were late to work and were rushing to meet the deadline for loading of cargo at the Air Cargo Terminal;

(iv) The issue of liability and vicarious liability is denied;

(v) The Plaintiff resumed work after 3 months from the date of the injuries, which means I do challenge the quantum of the award. It is also to note that the Plaintiff attended work one day after the accident;

(vi) That in the premises I have a complete defence to the claim and/or there is contributory negligence on the part of the Plaintiff which the Court has not taken into account and these matters must be heard and incorporated into any judgment and award that may eventually be pronounced by this honourable Court.

Para 21. THAT the Judgment entered against me arises from procedural irregularity and not after the substances of this matter was heard and decided on its merits.

22. THAT I am being prejudiced by the default judgment and the award against me and I wish that I be given my day in Court to put forward me defence and have this matter heard.

(2) The Plaintiff filed an affidavit in opposition sworn by him on 10^th November 2015, which is substantially as follows; (As far as relevant)

Para 3. THAT as to paragraph 6 of the said Affidavit I state as follows:-

(i) The First named First Defendant(Krishna Kumar Naidu) was served with the Writ of Summons and Statement of Claim on 30^th May 2013 by Muni Rajesh Ratnam who is a registered bailiff. He has also sworn an Affidavit to that effect. The Second named First Defendant (ShilvaNadan) was also served on 30^th May 2015. ShilvaNadan is the father in law of Krishna Naidu and they were in business together.

(ii) Krishna Kumar Naidu states the Acknowledgment of Service that was filed “is not signed by me”. Pointedly he does not sayhe does not know who signed and files the Acknowledgment of Service.

(iii) After the Writ of Summons was served on Krishna Kumar Naidu and ShilvaNadan, Daya Naidu who is the wife of Krishna Kumar Naidu came to the office of Messrs Chaudhary and Associates and saw a staff Ms KiranUmleshLata and also Mr Chaudhary and also sent an email to Messrs Chaudhary and Associates on 20^th June 2013. A copy of the said email dated 20^th June 2013 is annexed hereto marked “A”.

Para 4. THAT on 6^th November 2015 (that is after this application was made) Messrs Chaudhary and Associates wrote to the Deputy Registrar of the High Court, Lautoka. A copy of the letter is annexed hereto marked with the letter “B”. A reply dated 6^th November 2015 was received from the Senior Court Officer, High Court Lautoka. A copy is annexed hereto marked with the letter “C”. the only conclusion is that the Acknowledgement of Service was filed by ShilvaNadan who is the Second Named First Defendant. He is the father in law of Krishna Kumar Naidu and they were in business together.

Para 5. THAT as to paragraph 7 of the said Affidavit I state as follows:-

(i) The Writ of Summons was issued on 27^th May 2013. By his own admission Krishna Kumar Naidu was aware through his staff in Solovi, Nadi that there was a case against him. In fact he was served with the Summons on 30^th May 2013 as stated earlier. His wife was aware of the Summons in June 2013.

THAT as to paragraph 8 and 9 of the said Affidavit I state as follows:-

(i) Krishna Kumar Naidus wife Daya Naidu went to the office of my Solicitors to discuss settlement after the Writ of Summons had been served on the First Defendants on 30^th May 2013. That subsequently Daya Naidu sent an email to my Solicitors (annexure “A” herein).

(ii) No attempts were made to amicably resolve the matter with me or my Solicitors. There was no communication after the email of 20^th June 2013. An Acknowledgement of Service was filed on 27^th June 2013.

THAT as to paragraphs 10 and 11 of the said Affidavit I state as follows:-

(i) Judgment was sealed against the Defendants on 2^nd August 2013.

(ii) On 22^nd October 2013 ShilvaNadan (Second named First Defendants) was served with the Notice of Assessment of Damages. ShilvaNadan is the father in law of Krishna Kumar Naidu and together in business with him.

(iii) Krishna Kumar Naidu was served with the Notice of Assessment of Damages through an advertisement in the Fiji Sun in 20^th February 2014 by the Order of the Court dated 18^th February 2014.

(iv) That I verily believe Krishna Kumar Naidu would also have been made aware of the Notice of Assessment by his father in law ShilveNadan who was together with him in business.

(v) I verify believe it was Krishna Kumar Naidu’s duty and responsibility to enquire as to what was happening in his case.

(vi) The Bankruptcy Notice and the court Order dated 10^th July 2015 were faxed to Krishna Kumar Naidu to Auckland Fax number (649) 2758455. This is the fax number of Tropical Fresh Limited. The two directors of this company are Daya Naidu and Bobby Krishna Kumaran (aka Krishna Kumar Naidu).

Para 8. THAT as to paragraphs 12, 13, 14, 15, and 16 of the said Affidavit I state as follows:-

(i) The Defendants did not make any attempts to resolve or settle the matter.

(ii) The First named Defendant (Krishna Kumar Naidu) was served through advertisement in a daily newspaper. ShilvaNadan his father in law and business partner was served personally. Neither ShilvaNadan nor Krishna Kumar Naidu contact me or my family after the accident. I cannot make any comments on the other matters alleged in paragraphs 14 and 15.

Para 9. THAT as to paragraphs 16 and 17 of the said Affidavit I agree that my Solicitors served a bankruptcy Notice on Krishna Kumar Naidu on 28^th August 2015 and also a Summons was served dated 3^rd September 2015.

Para 10. THAT as to paragraphs 20 of the said Affidavit I state as follows:-

(i) I completely deny the allegation that I and the Second Defendant had indulged in alcohol the previous night.

(ii) The Second Defendant was only charged for Careless Driving and not driving under the influence of alcohol. Annexed hereto and marked with the letter “D” is a copy of a letter dated 19^th November 2012 from the Station Officer, Namaka Police Station.

(iii) As for vicarious liability I state that the accident happened due to the negligence of the First Defendant’s employee. There is no contributory negligence on my part as I was a passenger. As for my injuries my medical report has been tendered in Court and the doctor’s evidence taken.

(3) The first named first Defendant filed an affidavit in reply which is substantially as follows; (as far as relevant)

Para 4. THAT I refer to Paragraph 3 of the Plaintiff’s Affidavit and say that:

(i) I was never personally served with the Writ of Summons in this matter. I have not had occasion to meet the Plaintiff and/or his Bailiff in 2013 when the alleged service took place.

(ii) I did not sign or file the Acknowledgement of Service in this matter. I further say that I do not know who signed and filed the Acknowledgment of Service for the Defendant.

(iii) I admit that my wife had sent Messrs Chaudhary& Associates an email however she had done so for her father the 2^nd named Defendant as stated in the email itself.

THAT I accept Paragraph 4 of the Plaintiff’s Affidavit only so far as it relates to the correspondences attached therein. I deny the rest of the contents as stated therein.
THATI deny Paragraph 5 of the Plaintiff’s Affidavit and say that I was never personally served with the Writ of Summons in this matter. I have not had occasion to meet the Plaintiff and/or his Bailiff in 2013 when the alleged service took place.
THATI refer to Paragraph 6 of the Plaintiff’s Affidavit and say that there were various attempts to amicably resolve the within matter as the Plaintiff was in good terms with the 1^st Defendant’s and that we had taken care of him after the alleged incident.
THAT I refer to Paragraph 7 of the Plaintiff’s Affidavit and say that from 2013 to 2015 I was unaware of the matters that transpired in this case as I was not served any further documents by the Plaintiff and/or his counsel until about August 2015 when I received further documents vide facsimile.
THAT I refer to Paragraph 8 of the Plaintiff’s Affidavit and say that from the initiation of this matter I was under the impression that this matter would resolve amicably and that would settle the case withoutresorting to Court.
THAT since I was not served with any further documents and since I remained in good terms with the Plaintiff and his family I was under the impression that the matter had been resolved and that due to our close relationship the Plaintiff had decided to discontinue the action against us.
THAT I wish to further state that during this period I have had to undergo emotional trauma as my wife had been diagnosed with cancer and had undergone intensive treatment. This required our presence in New Zealand and absolved a lot of time and energy that kept us from work and from attending to matters.
THAT I am in a position to disclose medical reports at the request of this honourable Court.
THAT I accept the Plaintiff’s admissions in Paragraph 9 of the Plaintiff’s Affidavit.
THAT I refer to Paragraph 10 of the Plaintiff’s Affidavit and say that the issue of vicarious liability is pertinent and the essential fact in issue as the 2^nd Defendant and the Plaintiff’s intoxication exonerates me from liability and this must be tested in Court. I further say that;

(i) I am aware that the 2^nd Defendant and the Plaintiff had indulged in alcohol the previous night and into the early hours of the morning of the accident;

(ii) I have been informed that the 2^nd Defendant and the Plaintiff were intoxicated at the time of the accident;

(iv) The issue of liability and vicarious liability is denied;

(vi) That in the premise I have a complete defence to the claim and/or there is contributory negligence on the part of the Plaintiff which the Court has not taken into account and these matters must be heard and incorporated into any judgment and award that may eventually be pronounced by this honourable Court.

Para 15. THAT the Judgment entered against me arises from procedural irregularity and not after the substances of this matter was heard and decided on its merits.

Para 16. THAT I am being prejudiced by the default judgment and the award against me and I wish that I be given my day in Court to put forward me defence and have this matter heard.

Para 17. THAT I undertake to prosecute my matter vigilantly and do all things necessary to have this matter heard and disposed within a timely manner and fashion.

Para 18. THAT any prejudice suffered by the Plaintiff can be compensated by way of costs and that in the interest of fairness and natural justice I be given a fair chance of put my case before this honourable Court.

(E) THE LAW

(1) Against this factual background, it is necessary to turn to the applicable law and judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Defendant now seeks.

(2) Rather than refer in detail to the various authorities, I propose to set out, with important citations, what I take to be the principles of the play.

An application to set aside a default judgment is not the invocation of an appellate jurisdiction but of a specific rule enabling the court to set aside its own orders in certain circumstances where the action has never been heard on the merits.

A Defendant against whom judgment in default has been entered may apply for it to be set aside under Order 13, rule 10 or under Order 19, rule 9 of the High Court Rules.

In situations where the Defendant has failed to file in the first instance, notice of intention to defend, then Order 13 procedure is the correct process.

Order 19 is applicable only where, after notice of intention to defend is filed, no statement of defence had followed.

❖ THE PRINCIPLES OF SETTING ASIDE DEFAULT JUDGMENTS

A default judgment can be obtained regularly or irregularly and both of these forms of judgments can be set aside.

However, there is a distinction between setting aside a default judgment for irregularity and setting aside a judgment which was in fact regular.

Fry L J in Alaby –v- Praetorious [1888] UKLawRpKQB 55; [1888] 20 QBD 764 at 769 succinctly drew the distinction as follows:-

“There is a strong distinction between setting aside a default judgment forirregularity in which case the court has no discretion to refuse to set it aside, and setting it aside where the judgment though regular has been obtainedthrough some slip or error on the part of the Defendant in which case the court has a discretion to impose terms as a condition of granting the Defendant relief.”

(Emphasis added)

This principle was adopted and applied by the Fiji Court of Appeal in “Subodh Kumar Mishra v Rent-a-car” (1985) 31 FLR 52. Thus, where an irregular default judgment is entered (for example time for acknowledging service or for serving a defence had not expired by the time the default judgment was entered) which irregularity cannot be cured the Defendant is entitled as of right to have the judgment set aside.

However, where the default judgment had been entered regularly, the Court has a wide discretion and neither Order 13, rule 10 nor Order 19, rule 9 of the High Court Rules impose any restriction in the manner in which the discretion is to be exercised.

The rationale for the unconditional discretion that allows the court to intervene is explained by Lord Atkin in “Evans v Bartlam”, 1937 DC 473 as follows;

“The Principle obviously is that unless and until the Court has

pronounced a judgment upon the merits or by consent, it is to

have the power to revoke the expression of its coercive power

where that has only been obtained by a failure to follow any of

the rules of procedure.”

Lord Atkins pronouncement was endorsed and followed by the Fiji Court of Appeal in The Fiji Sugar Corporation v Mohammed IsmailFLR ,Vol 34, p75.

The Principles applicable for analysis of the merit of an application to set aside a default judgment are well known and settled. The leading authority is Evans –v- Bartlam [1937] 2 All E.R. 646. The following passage from the judgment of Lord Atkin in “Evans vBartlam” is pertinent in the subject of principles on which a court acts where it is sought to set aside a regular Default judgment;

“The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication...........The Court might also have regard to the applicant’s explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms as to costs or otherwise which the Court in its discretion is empowered by the rule to impose.”

The principles of that case have been widely adopted in Fiji, and by the Fiji Court of Appeal in PankanjiBamola&Anor. –v- Moran Ali Civil Appeal No. 50/90 and Wearsmart Textiles Limited –v- General Machinery Hire &Anor Civil Appeal No. ABU0030/97S.

In “PankajBamola&Anor v Moran Ali” (supra) the Court of Appeal held;

It is not sufficient to show a merely “arguable” defence that would justifyleave to defend under Order 14; it must both have “a real prospect of success” and “carry some degree of conviction.” Thus the court must form a provisional view of the probable outcome of the action.

In Russell v Cox 1983 NZLR 654, McCarthy J held;

“In approaching an application to set aside a judgment which complies with therule, the Court is not limited in the considerations to which it may have regard, but three have long been considered of dominant importance. They are;

That the defendant has a substantial ground of

defence;

That the delay is reasonably explained;
That the plaintiff will not suffer irreparable injury if thejudgment is set aside.

A useful summary of the factors to be taken into consideration is to be found under notes to Or. 13 r9/14 of THE SUPREME COURT PRACTICE 1995 Vol. I at p.142 and which is, inter alia, as follows:-

“The purpose of the discretionary power is to avoid the injustice which may be caused if judgment follows automatically on default.The primary consideration in exercising the discretion is whether thedefendant has merits to which the court should pay heed, not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant has no defence, and because, if the defendant can show merits, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. Also as a matter of common sense the court will take into account the explanation of the defendant as to how the default occurred.

Therefore the judicially recognized “Tests” may be conveniently listed as follows;

(a) Whether the Defendant has a substantial ground of defence to the claim.

(b) Whether the Defendant has a satisfactory explanation for the default judgment.

(c) The promptness with which the application is made.

(d) Whether the setting aside would cause prejudice to the Plaintiff.

❖ THE DEFENCE ON THE MERITS

The major consideration on an application to set aside a default judgment is whether there is a defence on the merits. The purpose is to avoid injustice. The Defendant is seeking to deprive the claimant of a regular judgment which the claimant has validly obtained in accordance with the rules; this is not something which the court will do lightly.

In Shocked v Goldsmith (1998) 1 All ER 372 at 379ff Legatt LJ said:

“These cases relating to default judgment are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant’s explanation both for the default and any delays, as well as against prejudice to the other party.”

The leading case is Evans v Bartlam [1937] 2 All 646, [1937] AC 473. In this case, the defendant had suffered judgment to be entered against him in default of appearance. The Court of Appeal ([1936] 1 KB 202) allowed an appeal from the judge’s order setting aside the judgment. But the House of Lords reversed the decision of the Court of Appeal and restored the Judge’s order.

Lord Wright ([1937] 2 All ER 646 at 656, [1937] AC 473 at 489) expressed the conclusion;

“In a case like the present, there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set aside should be exercised in his favour. The primary consideration is whether he has merits to which the court should pay heed; if merits are shown, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication... The court might also have regard to the applicant’s explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms, as to costs, or otherwise, which the court, in its discretion, is empowered by the rule to impose.”

In Vann V Awford (1986) 130 SJ 682, the judge declined to set aside a judgment given against the second defendant in default of appearance, and also a judgment given against him when damages were assessed in his absence. The Defendant had lied when he said on oath that he had no knowledge of the proceedings. On appeal Dillon LJ considered that, despite the prejudice to the plaintiffs, as there were ample arguable defences the award should be set aside and there should be a fresh hearing. He added: “Even for lying and attempting to deceive the court, a judgment for £53,000 plus is an excessive penalty if there are arguable defences on the merits.”
This case was followed two weeks later by The Saudi Eagle [1986] 2 Lloyd’s Rep 221. After reviewing Evans v Bartlam and Vann v Awford, Sir Roger Ormrod came to the conclusion that the defendants in the case before the court had failed to show that their defence enjoyed a real prospect of success.

These cases relating to default judgments are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant’s explanation both for the default and for any delay, as well as against prejudice to the other party.

❖ THE YARDSTICK THAT HAS TO BE APPLIED IN DETERMINING THE MERITS OF THE DEFENCE

The Defendant must have a case with a real prospect of success, and it is not enough to show a merely arguable defence. (Alpine Bulk Transport Company v Saudi Eagle Shipping Company, 1986 2 Lloyds Report, P 221).

It must both have “a real prospect of success” and “carry some decree of conviction”. Thus the court must form a provisional view of the probable outcome of the action. Unless potentially credible affidavit evidence demonstrates a real likelihood that a Defendant will succeed on fact, no real prospect of success is shown and relief should be refused. (Wearsmart Textiles Ltd v General Machinery Hire Ltd, (1998) FJCA 26.)

A person, who holds a regular judgment even a default judgment, has something of value, and in order to avoid injustice he should not be deprived of it without good reason. Something more than merely arguable case is needed to tip the balance of justice to set the judgment aside. (Moore-Bick J in International Finance Corporation, (2001) CLC 1361).

The real prospect of success means that the prospects must be better than merely arguable. The word “real” directs the court to the need to see whether there is a realistic as opposed to a fanciful prospect of success. It saves expense, achieves expedition, avoids the courts resources being used up in cases where that serves no purpose and is in the interest of justice.

There is no room for speculative defences and potentially credible affidavit evidence must demonstrate a real likelihood that a defendant will succeed. Otherwise no real prospect of success is shown and relief should be refused (Allen v Taylor) [1992] PLQR 255)

The test was considered in detail in Swain v Hilman (2001) (1), All E.R. 91 and the court confirmed that;

“The test is the same as the test for summary judgment. The only significant difference is that in a summary judgment application the burden of proof rests on the claimant to show that the defendant has no real prospect of success whereas in an application to set aside a default judgment it is for the defendant to show that his defence has a real prospect of success.

❖ DELAY

An application to set aside default judgment must be made “promptly” and without “delay”.

In “PankajBamolc and Another v Moran Ali” FCA 50/1999, a party seeking to set aside an Order had delayed for nearly 08 months. The Court took the view that no adequate explanation had been provided for that and concluded that the application should be refused because it had not been made promptly and without delay.

Promptness will always be a factor of considerable significance and, if there has been a marked failure to make the application promptly, a court may well be justified in refusing relief, notwithstanding the possibility that the Defendant may well succeed at the trial.

Whether or not there is a defence on the merits may be, the dominant feature to be considered but that does not mean that it cannot be swamped by other features such as unexplained delay in bringing the application to set aside the judgment.

Although the fact that damages have been assessed and a final judgment entered does not deprive the court of jurisdiction to set aside a default judgment; it is highly relevant to the exercise of discretion. It is an aspect of, but separate from, the question of delay. The Saudi Eagle case(supra) is clear authority for the proposition that an application to set aside a default judgment can be made notwithstanding that final judgment has been entered.

In Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co. Inc (The Saudi Eagle) [1986] 2 Lloyd’s Repthe defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend. The application was refused on the merits; but it was not suggested that the judge would not have had jurisdiction to set aside the judgment had it been appropriate to do so. Therefore, it cannot be said that a judgment (by default) for damages to be assessed is spent once damages are assessed; it remains the source of the plaintiff’s right to damages. Nor can it be said that in such a case the interlocutory judgment is overtaken or superseded by the final judgment for a liquidated sum; it would be more accurate to say that it is completed and made effective by the assessment.

It cannot be safely assumed in every case that any prejudice to the plaintiff can be met by putting the defendant on terms to pay the costs thrown away by the assessment hearing. There can be no rigid rule either way; it depends on the facts of the particular case.

❖ PROCEDURE

An application to set aside a default judgment which has not been entered wrongly must be supported by evidence. Commonly, a draft defence is attached to the affidavit in support of the application.

A draft defence is not necessary, what is required is the affidavit of merits. (The Fiji Sugar Corporation Ltd. v Mohammed Civil Appeal No. 28/87.)

If the Defendant does not have an affidavit of merits, no setting aside order sought to be granted except for some very sufficient reason. (Wearsmart Textiles Ltd v General Machinery Hire Ltd, (1998) FJCA 26.)

In Wearsmart Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26; Abu0030u.97s (29 May 1998) the Fiji Court of Appeal cited the following passage from the Supreme Court Practice 1997 (Volume 1) at p.143.

“Regular judgment – if the judgment is regular, then it is an inflexible rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits (Farden v. Richter [1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124. “At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason.” per Huddleston, B., ibid. p.129, approving Hopton v. Robertson [1884] W.N. 77, reprinted 23 Q.B.D. p. 126 n.; and see Richardson v. Howell (1883) 8 T.L.R. 445; and Watt v Barnett [1878] UKLawRpKQB 21; (1878) 3 Q.B.D. 183, p.363).

“it is an (almost) inflexible rule that there must be an affidavit of merit i.e. and affidavit stating facts showing a defence on the merits (FARDEN v RICHTER [1889] UKLawRpKQB 79; (1989) 23 Q.B.D. 124)” The Supreme Court Practice 1993 Or 13 r.9 p.137).

“At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason” HUDDLESTON, Bin FARDEN ibid p.129).

❖ SETTING ASIDE ON CONDITIONS

In the exercise of Court’s discretion, the court may attach conditions to an order to set aside judgment. In some cases the defaulting defendant will be ordered to pay the claimant’s costs thrown away. In appropriate cases, the court may also require the defendant to pay money into court to await the final disposal of the claim. Such a condition is commonly imposed where,

1. The defendant has satisfied the court that it has a defence with a real prospect of success.

2. The Defendant has an explanation why he neglected to appear after being served.
3. The truth of which is indeed denied by the Plaintiff.

4. The court seeks no reason why the Defendant should be disbelieved in what appears to be a mere conflict on affidavits.

The conditions imposed on setting aside a default judgment are not intended to punish the defendant but to ensure that justice is achieved between the parties (VIJAY PRASAD v DAYA RAM CIV APP 61/90 FCA; SUBODH KUMAR MISHRA s/o Ramendra Mishra v CAR RENTALS (PACIFIC) LTD CIV APP 35/85 FCA). The said judgments do not lay down any basis upon which the discretion is to be exercised.

In GARDNER v JAY (1885) 29 Ch.D 52 at p.58 BOWEN L.J. said on this aspect that:

“... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Actor the Rules did not fetter the discretion of the Judge why should the Court do so?”

(F) ANALYSIS

(1) Let me now turn to the application bearing in my mind the above mentioned legal principles and factual background uppermost in my mind.

(2) Before I pass to consideration of submissions, let me record that the Counsel for the Plaintiff and the first named first Defendant in their written submissions has done a fairly exhaustive study of judicial decisions and other authorities which they considered to be applicable.

I interpose to mention that I have given my mind to the oral submissions made by the counsel, helpful written submissions and the judicial authorities referred to therein.

(3) The first named first Defendant is saying that the ‘interlocutory defaultjudgment’ should be set aside because the Writ was not served on him. He denies ever having been served with the Writ of Summons.

Reference is made to paragraphs six (06) to fourteen (14) of the affidavit sworn by first named first Defendant in support of his Summons to set aside Default judgment;

7. THAT I came to know that there was a case against in June 2013 through my staff who are based in Solovi, Nadi, Fiji as at this particular time I was in New Zealand.

8. THAT my wife then emailed the Plaintiff’s solicitors on behalf of her father the 2^nd named 1^st Defendant and tried to resolve this matter amicably.

In adverso, the Counsel for the Plaintiff submitted that the Writ of Summons was personally served on the Defendants.

Reference is made to paragraphs three (03) and (04) of the Affidavit in opposition sworn by the Plaintiff ;

Para 3. THAT as to paragraph 6 of the said Affidavit I state as follows:-

(ii) Krishna Kumar Naidu states the Acknowledgment of Service that was filed “is not signed by me”. Pointedly he does not sayhe does not know who signed and files the Acknowledgment of Service.

On 27^th May 2013, Writ of Summons with a Statement of Claim attached was issued against both Defendants. The affidavits of service show that it was personally served on both Defendants, viz, first named first Defendant, and second named first Defendant on 30^th May 2013. An acknowledgement of service was filed on behalf of both Defendants on 27^th June 2013.

The first named first Defendant’s assertion that there was no service of the Writ of Summons on him is remarkably hallow and strange. I perused the court record. On 01^st July 2013, the first named first Defendant and the second named first Defendant had written to the Deputy registrar regarding the case before me. The first paragraph of the letter reads;

“In response to the summons served in regards to the above,we would like to raise the following details in defence to the claims by the Plaintiff”

For the sake of completeness, the letter dated 01^st July 2013 is reproduced below in full.
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The clear position that emerges from the first paragraph of the letter is that first named first Defendant and second named first Defendant have been served with the Writ of Summons. The first paragraph of the letter throws light on the most difficult part of this case, namely the question whether there was service of the Writ of Summons on the Defendants. The first paragraph of the letter effectively nullifies the first named first Defendant’s assertion that there was no service of the Writ of Summons on him. Thus, the first named first Defendant’s assertion is nothing more than a web of deceit.He is not merely clutching at a non-existent straw but expecting to be carried by it. No amount of hair splitting with regard to the assertion of the first named fist Defendant, By the Counsel, will be of any avail to him.I must confess that I placed much value on the first paragraph of the aforementioned letter, dated, 01^st July 2013. I have no doubt personally and I am clearly of the opinion that the Writ of Summons was served on the first named first Defendant and the second named first Defendant.

Therefore, I reject the first proposition advanced by the Counsel for the first named first Defendant as being wholly lacking in substance. The impression produced on my mind by the first proposition is that I have here the evolution of a myth, and not a gradual unfolding of real facts. Anything more shadowy, anything more unsatisfactory, anything more unlikely to produce persuasion or conviction on the mind of the court, I can scarcely imagine.

In the same breath, the first named first Defendant says that he did not file the acknowledgement of service. He says i do not know who signed and filed the acknowledgment of service. This is the ‘reductio ad absurdum” of the whole argument. Moreover, this proposition put flesh on the bones of the first proposition and makes plain the unfairness of it.

The court had issued receipt number 98761 in the sum of $23.00 to “ShilvaNadan” on 27^th June 2013 for filing the acknowledgment of Service.

The clear position that emerges from the said court receipt number 98761 is that ‘ShilvaNadan” filed the acknowledgement of service. ‘ShilvaNadan” is the second named first Defendant. He is the father-in-law and the business partner of the first named first Defendant. An acknowledgement of service will not be filed by a stranger because he has no obligation to do so. Thus, it is extremely difficult for this Court to accept that a stranger has filed the acknowledgement of service on behalf of the Defendants. Therefore, I reject the second proposition advanced by the Counsel for the first named first Defendant as being wholly lacking in substance. Despite the skilful advocacy of the counsel for the first named first Defendant, I am still at a substantial loss to understand how a stranger could step into this matter because he or she has no interest or obligation in the matter whatsoever.

(4) On 27^th May 2013, Writ of Summons with a Statement of Claim attached was issued against both Defendants. The affidavits of service show that it was personally served on both Defendants, viz, first named first Defendant and second named first Defendant on 30^th May 2013. An acknowledgement of service was filed on behalf of both Defendants on 27^th June 2013. The time within which an acknowledgment of service and Notice of intention to defend had to be given was 14 days (see High Court Rules, 1988, Order 13, Rule 5 and 7 read with Order 12, Rule 4). The Defendants should have acknowledged service no later than 14^th June 2013. The time limit within which a Defence should be served on the Plaintiff is before the expiration of 14 days after the time limited for acknowledging service of the Writ and the Statement of Claim. (Please see Oder 18, Rule 2(1)). The Defendants should have served the Defence on the Plaintiff no later than 28^th June 2013. The Defendants failed to do so. On 01^st August 2013, the Plaintiff, having searched and finding that the Defendants had failed to file the Statement of Defence within the prescribed time, entered default Judgment against the Defendants, pursuant to Order 19, Rule 3 of the High Court Rules, 1988. The Plaintiff’s Claim against the Defendants is for unliqudated damages only.

Therefore, I am satisfied that the default judgment has been regularly entered. Its form is in accordance with the High Court Rules, 1988. In these circumstances, the first named first Defendant does no longer have the right to have the default judgment set aside. It becomes a matter for the exercise of the Court’s discretion.

For the sake of completeness, the form of the default judgment is re-produced below in full.

“NO STATEMENT OF DEFENCE having been filed and served by the above-mentioned Defendants herein IT IS THIS DAY ADJUSTED THAT THE Defendants do pay the Plaintiff damages to be assessed and costs before the Master.

DATED this 2^nd day of August, 2013.”

TheCounsel for the first named first Defendant in both his oral and written submissions contended that the Defendant has a bona fide and good defence on the merits of the claim and should be allowed to come in and defend the action.

In ‘adverso’, the Plaintiff’s Counsel submitted that there is no ground to set aside the Judgment which had been regularly obtained. Moreover, the Counsel submitted thatthe first named first Defendant has failed to show that he has a meritorious defence as he has failed to annex a proposed Statement of Defence and the application to set aside was not made promptly.

(5) Counter to these submissions, the counsel for the first named first Defendant submitted that there is no underlying requirement that a defence on the merits must be shown by proposed Statement of Defence.

In support of this proposition, the Counsel for the first named first Defendant cited “Dutt v Dutt, (2015) FJHC 459.

I have given my mind to the rule of law enunciated in the aforementioned judicial decision.

I concur with the Counsel for the first named first Defendant.

It is true that a draft Statement of Defence is not necessary, what is required is an Affidavit sworn by the Defendantdeposing to the proposed defence.

What authority there is on this point?

See; * Wearsmart Textiles Ltd v General Machinery Hire Ltd (1998) FJCA 26

* Farden v Ritcher [1889] UKLawRpKQB 79; (1889) 23 QBD 124

* Hopten v Robertson (884) W.N.77

* Richardson v Howell (1883) 8 T.L.R. 445

* Watt v Barnett [1878] UKLawRpKQB 21; (1878) 3 Q.B.D. 183

(6) As I have mentioned earlier, the major consideration in an application to set aside a Default judgment is whether there is a defence on the merits. It is a dominant feature to be weighed against the first named first Defendant’s explanation both for the default and the delay as well as against prejudice to the Plaintiff. The purpose is to avoid injustice. A default judgment binds the Defendant just as much as if it had been entered after a contested trial. The first named first Defendant is seeking to deprive the Plaintiff of a regular Judgment which the Plaintiff has validly obtained in accordance with the rules; this is not something which the Court will do lightly.

What concerns me is whether the first named first Defendant has a defence on the merits? Whether the first named first Defendant should be allowed to come in and defend the action?

The Court is here to administer justice. It is essential to bear in mind that the concept of justice is not confined to the interests of particular litigants; it embraces and extends to the protection of the public veil. The crucial point is that the Court should arrive at a just result.

(7) Before I proceed to examine whether the first named first Defendant has a defence on the merits, let me consider what is the rule of conduct of a Defendant in an application such as this?

The Supreme Court Practice, 1999, Volume 1, states at Page 157 ;

“At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason,” per Huddleston, B.,ibd, p129 approving Hopton v. Robertson [1884] W.N. 77, reprinted 23 Q.B.D. 126 n; and see Richardson v Howell (1883) 8 T.L.R. 445; and Watt v Barnett (1878) 2 Q.B.D. 183 at 363).

For the purpose of setting aside a default judgment, the Defendant must show that he has a meritorious defence. For the meaning of this expression see Alpine Bulk Transport Co. Inc. v Saudi Eagle Shipping Co. Inc.; The Saudi Eagle [1986] 2 Lloyd’s Rep. 221 GA and note 13/9/18, “Discretionary powers of the court” below.

On the application to set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (Vann v. Awford (1986) 83 L.S..Gaz 1725; (1986) The Times, April 23 CA). The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the Court should exercise its discretion (see para 13/9/18. below).

In “Wearsmart Textiles Ltd v General Machinery Hire Ltd”, (1988) FJCA 26, the Fiji Court of Appeal held;

“The learned trial Judge had totally failed to consider whether the 2^nd Respondent had any defence on the merits. And yet as we have already noted under the heading Principles on which Courts Act, it is an (almost) inflexible rule that there must be an Affidavit of merits, i.e. an affidavit stating facts showing defence on the merits.

Dealing with the discretionary powers of the Courts under English Order 13 r.9 sub-rule 14 the Supreme Court Practice 1997 (the White Book) (Vo. 1 p145) cites the Court of Appeal’s judgment in Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co. Inc. The Saudi Eagle [1986] 2 Lloyd’s Rep. 221 as authority for following prepositions:

“(a) It is not sufficient to show a merely “arguable” defence that would justify leave to defend under Order 14; it must both have “a real prospect of success” and “carry some degree of conviction”. Thus the Court must form a provisional view of the probable outcome of the action.

(b) If proceedings are deliberately ignored this conduct, although not amounting to an estoppels at law, must be considered “in justice” before exercising the Court’s discretion to set aside.”

Notwithstanding the Court of Appeal’s later decision in Allen v Taylor [1992] P.I.Q.R. 255 which purports to dilute the principles emerging from Saudi Eagle, we subscribe to the White Book’s preferred view that ‘unless potentially credible affidavit evidence demonstrates a real likelihood that a defendant will succeed on fact no “real prospect of success” is shown and relief should be refused.”

(Emphasis Added)

(8) The law, as I understand from the aforesaid passage and the judicial decision is this;

* There should be an Affidavit sworn by the Defendant deposing to the proposed defence.

* The Defendant must precisely demonstrate that the proposed defence advanced has “a real prospect of success” and “it carries some degree of conviction”.

* A merely “arguable defence” is not sufficient. The arguable defence must carry some degree of conviction.

* To arrive at a reasoned assessment of the justice of the case, the Court must form a provisional view of the probable outcome of setting aside the Default judgment.

(9) Now let me return to the instant case to consider the issue of whether the first named first Defendant has a defence on the merits bearing those legal principles uppermost in my mind.

The defence on which the first named first Defendant relies and by which he is prepared to swim or sink is in the following terms in affidavit in support sworn by the first named first Defendant; (Reference is made to paragraph twenty (20) of the affidavit in support of Summons to set aside default judgment)

(i) I am aware that the 2^nd Defendant and the Plaintiff had indulged in alcohol the previous night and into the early hours of the morning of the accident;

(ii) I have been informed that the 2^nd Defendant and the Plaintiff were intoxicated at the time of the accident;

(iv) The issue of liability and vicarious liability is denied;

(10) The Defence of Contributory Negligence

The first named first Defendant alleges ‘contributory negligence’ of the Plaintiff. What concerns me is whether the Defence of ‘contributory negligence” applies to the facts pleaded in the instant case and whether it has a ‘real prospect of success’ and whether it ‘carries some degree of conviction’. (Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co. Inc , (supra) ). It is the bounden duty of the Court to examine the ‘prospect of success’ and the ‘degree of conviction’ in the plea of ‘contributory negligence’. Because, to arrive at a reasoned assessment of the justice of the case, the Court must form a provisional view of the probable outcome of setting aside the default judgment.

What is meant by the phrase ‘Contributory Negligence’?

Lord Denning MR in ‘Froom v Butcher’ [1975] EWCA Civ 6; (1975) 3 All.E.R 520 at 524 said “Contributory Negligence is a man’s carelessness in looking after his own safety. He is guilty of Contributory Negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself”

Over a century ago,Blackburn J said as much in ‘Swon v North British Australiasian CO [1862] EngR 354; (1863) 2 H &C 175 at 181, where his Lordship said that the essence of Contributory Negligence was that the Plaintiff was negligent as regards himself.

The concept of Contributory Negligence has three elements.

The Claimant was in some way at fault in his behaviour.
That such behaviour was partly causative of the damage that was suffered.
That it is just and equitable for damages to be reduced.

However, a finding of ‘contributory negligence’ has no effect on how damages are calculated, only on the reduction (if any) to be made to the total as calculated. This principle, established inKelly v Stockport Corporation (1949) 1 All. E. R 893, was re-affirmed in “Swoden v Lodge” (2004) EWCA CIV 1370.

Where ‘contributory negligence’ is alleged, the burden of proving on the balance of probabilities that the Plaintiff has contributed to the cause of damage suffered lies on him who alleged it, namely the Defendant.

Now let me return to the case before me bearing those legal principles uppermost in my mind.

The first named fist Defendant states in paragraph 20 (ii)of his affidavit dated 30^th October 2015 as follows;

“I have been informed that the second Defendant and the Plaintiff were intoxicated at the time of the accident”

It must be remembered that the second Defendant, the driver of the truck, was never charged in the Magistrate’s Court for driving under the influence of liquor. He was charged only with careless driving and he has pleaded guilty to that charge in the Magistrate’s Court. There can be no doubt that the police would have definitely charged him for driving under the influence of liquor if he in fact was drunk. Thus, I reject the proposition advanced by the first named first Defendant as being wholly lacking in substance.

Leave that aside for a moment and let me have a close look at the case once more.

It is conceded by the first named first Defendant that;

(i) THAT all material times the First Defendants were trading as Tropiko Exports and were also the owners of a Truck registered number FA523.

(ii) THATall material times the 2^nd Defendant was driving the said Truck as the servant of the First and Second Defendant’s and during the course of his employment with the First Defendant..

(iii) THAT all material times the Plaintiff was employed by the First Defendants as a vegetable packer and was a passenger on the said truck during and in the course of his employment.

The Plaintiff was only a passenger and was notin any way involved in either the control of the truck or the manner of its being driven. He therefore cannot have any contributory Negligence attributed to him.

Please see;

AmbikaNand v TevitaSenico

Civil Appeal No: HB 90025 of 996 S (A)

Suni Chand v J.S. Hill Associates Limited.

Civil Action NO: HBC 0154 of 1982

It is quite clear that merely to be a passenger does not raise any question of contributory negligence. The essential cause of the accident was the failure of the second Defendant. The Plaintiff’s intoxication was not a cause of the accident. The second Defendant had the last opportunity to avoid the accident.

I am of course mindful to the fact that a man must not be careless in looking to his own safety. A man who voluntarily allows himself to be carried as a passenger in a motor vehicle , driven by someone whom he knows has consumed a substantial quantity of alcohol which , as he must have been aware, reduced his capacity to drive properly, is guilty of ‘contributory negligence’ if the driver does drive negligently and the passenger is thereby injured. It is trite law that a complete knowledge of the danger is necessary to apply contributory negligence. Every element should be present to form‘a conscious and intentional assumption of the very risk’ for which the Plaintiff suffered. A Plaintiff’s contributory negligence may consist in an ‘intentional and conscious assumption of the very risk’ and exposure of himself to danger created by the Defendant’s negligence.(Please see; Amarican Law Institute, Restatement of the Law, Second, Torts (1965) Vol -2, s-466)

The first named first Defendant deposed at paragraph 20 of the Affidavit in support dated, 30^thOctober 2015, as follows;

(i) I am aware that the 2^nd Defendant and the Plaintiff had indulged in alcohol the previous night and into the early hours of the morning of the accident;

(ii) I have been informed that the 2^nd Defendant and the Plaintiff were intoxicated at the time of the accident;

Let me assume for a moment in favour of the first named first Defendant that the Plaintiff and the second Defendant were both drunk at the material time.

Thus, the question is, due to the drunken condition of the Plaintiff, how could the Plaintiff agree to ride at his own risk? Or how could the Plaintiff agree to take the risk of the Second Defendant’s, the truck driver’s, negligence?

There can be no doubt that the Plaintiff was not sober enough to know and understand the danger of driving with the second Defendant in a drunken condition. There can be no doubt that the Plaintiff due to his drunken condition cannot foresee the risk of being hurt by riding with the second Defendant as a passenger. The absence of Plaintiff’s complete knowledge of the danger and the absence of conscious and intentional assumption of the very risk (due to his drunken condition) is a complete bar to plea of ‘contributory negligence’. (Please see; Insurance Comr v Joyce [1948] HCA 17; (1948) 77 CLR 39 and Wright and Linden’s ‘Cases on Law of Torts’ 5^thEdition, p613.)It can be inferred that the mind of the Plaintiff was befuddled by drink as to rid him of clear thought and perception that he is going to be driven in a truck in the course of the employment, on his master’s, the first named first Defendant’s, business by his fellow employee, the second Defendant, who has consumed alcohol in such quantity as is likely to impair to a dangerous degree that driver’s, second Defendant’s, capacity to drive properly and safely. Thus, the plea of ‘contributory negligence’ cannot be established on the facts of the case before me. Therefore, a plea of ‘contributory negligence’ does not apply in this case so as to defeat the Plaintiff’s claim. I am clearly of opinion that contributory negligence would be of no defence. It has no prospect of success. It does not carry any degree of conviction. Thus, I cannot help thinking that the object of the first named first defendant’s application to set aside the default judgment is to set up some mere technical case. Thus, the first named first Defendant is not entitled to set aside the default judgment on the issue of liability. I wish to make it clear that this is not a case of the voluntary acceptance by a passenger of a ride at his own risk, with knowledge that the driver was in a state of intoxication. There is no issue of ‘contributory negligence’ upon the pleadings. I cannot accept the view that a man who is unable through drink to know and accept the risk is to be taken as accepting it or is disqualified from denying that he accepted it.

(11) The Defence of “Volenti non fit injuria”

The first named first Defendant raised the plea of ‘volenti non fit injuria’.

What concerns me is whether the Defence of ‘volenti non fit injuria” applies to the facts pleaded in the instant case and whether it has a ‘real prospect of success’ and whether it ‘carries some degree of conviction’. (Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co. Inc , (supra) )

It is the bounden duty of the Court to examine the ‘prospect of success’ and the‘degree of conviction’ in the plea of ‘volenti non fit injuria’. Because, to arrive at a reasoned assessment of the justice of the case, the Court must form a provisional view of the probable outcome of setting aside the default judgment.

What is meant by the maxim “Volenti non fit injuria:”?

This affords a clear example of a person knowing a risk and voluntarily encountering that risk. Where a dangerous physical condition has been brought about by the negligence of the Defendant, and, after it has arisen, the Plaintiff, fully appreciating its dangerous character, elects to assume the risk thereof, the maxim-has often been held to apply, and to protect the Defendant. (Please see; Torrance v Ilford Urban District Council, 25, Times L.R. 355 and Cultlerv United Dairies (London) Ltd, (1933) 2. K.B. 297.)

Returning to the case before me, the driver of the truck, i.e.the second Defendant, had been guilty of the Criminal Offence of being negligent driving, at the Magistrate’s Court. Thus, there is an admission of ‘negligent driving’ by the driver, the second Defendant.

It is essential to bear in mind that the maxim of “volenti non fit injuria” does not apply to case of Negligence. The plea ‘volenti non fit injuria’ is a denial of any duty at all, and, therefore, of any breach of duty, and ‘an admission of negligence’ cannot strictly be combined with the plea. The whole law of negligence assumes the principle of volenti non fit injurianot to be applicable; Beven on“Negligence”, 4^th edition, at page 796. Pollock on “Torts”, 13^th edition, p172 supports Beven’s dictum;

Please See;

Torrance v Ilford Urban District Council, 25 times L. R. 355
Membery v Great Western Ry. Co [1889] UKLawRpAC 13; (1889) 14 App. Cas. 179
Cleghorn v Oldham , 43 Times L. R. 465

Therefore, the maxim ‘volenti non fit injuria’ would be no defence to the first named first Defendant. The defence of ‘volenti non fit injuria’ has no real prospect of success. It does not carry any degree of conviction. Therefore, the plea of ‘volenti non fit injuria’ does not apply in this case so as to defeat the Plaintiff’s claim. The maxim would be of no defence.Thus, I cannot help thinking that the object of the first named first Defendant’s application to set aside default judgment is to set up some mere technical case. Thus, the first named first Defendant is not entitled to set aside the default judgment on the issue of liability.

Leave all that aside for a moment.

To apply the maxim “volenti non fit injuria”, there should be a complete knowledge of the danger, but such knowledge does not necessarily import consent. Every element should be present to form a ‘conscious and intentional assumption ‘of the risk.

The first named first Defendant deposed at paragraph 20 of the Affidavit in support dated, 30^th October 2015, as follows;

(i) I am aware that the 2^nd Defendant and the Plaintiff had indulged in alcohol the previous night and into the early hours of the morning of the accident;

(ii) I have been informed that the 2^nd Defendant and the Plaintiff were intoxicated at the time of the accident;

Let me againassume for a moment that the Plaintiff and the second Defendant were intoxicated.

The question is whether, on those facts, the rule or maxim. “Volenti non fit injuria” applies so as to defeat the Plaintiff’s Claim?

The answer to this question is obviously “No”

Looking at the case once more, I cannot help reiterating, that there can be no doubt that the Plaintiff was not sober enough to know and understand the danger of driving with the second Defendant in a drunken condition. There can be no doubt that the Plaintiff due to his drunken condition cannot foresee the risk of being hurt by riding with the second Defendant as a passenger. The absence of Plaintiff’s complete knowledge of the danger and the absence of conscious and intentional assumption of the very risk (due to his drunken condition) is a complete bar to plea of ‘volenti non fit injuria’ (Please see; Insurance Comrv Joyce [1948] HCA 17; (1948) 77 CLR 39, Letang v Ottawa Electric Railway Co (1926) AC 725 and Wright and Linden’s ‘Cases on Law of Torts’ 5^th edition , p613.)The defence of ‘volenti non fit injuria’ fails since it cannot be inferred (due to the drunken condition of the Plaintiff) that the Plaintiff fully knew and understood the nature and the extent of the danger and resolved voluntarily to undertake the risk.It can be inferred that the mind of the Plaintiff was befuddled by drink as to rid him of clear thought and perception that he is going to be driven in a truck in the course of the employment, on his master’s, the first named first Defendant’s, business, by his fellow employee, the second Defendant, who has consumed alcohol in such quantity as is likely to impair to a dangerous degree that driver’s, second Defendant’s, capacity to drive properly and safely. Thus, the plea of ‘volenti non fit injuria’ cannot be established on the facts of the case before me. Therefore, a plea of ‘volenti non fit injuria’ does not apply in this case so as to defeat the Plaintiff’s claim. I am clearly of opinion that the maxim‘volenti non fit injuria’would be of no defence. It has no prospect of success. It does not carry any degree of conviction. Thus, I cannot help thinking that the object of the first named first defendant’s application to set aside the default judgment is to set up some mere technical case. Thus, he is not entitled to set aside the default judgment on the issue of liability. I wish to make it clear that this is not a case of the voluntary acceptance by a passenger of a ride at his own risk, with knowledge that the driver was in a state of intoxication. I cannot accept the view that a man who is unable through drink to know and accept the risk is to be taken as accepting it or is disqualified from denying that he accepted it.

Leave all that aside for a moment.

It is contended for the first named first Defendant that the Plaintiff and the second Defendant were late to work and were rushing to meet the dead line for loading of Cargo at the air cargo terminal. Perhaps it is splitting hairs, but to my mind, under the aforesaidcircumstances, even assuming that the Plaintiff was sober enough, consent or voluntary assumption of risk is not to be implied, where, notwithstanding knowledge, the Plaintiff has exposed himself to the danger only because of the exigency of the situation in which he stands. He had no real or practical choice. So he does not voluntarily consent.

(12) Vicarious Liability

The first named first Defendant denied vicarious liability. The paragraph 20 sub paragraph 4 of his affidavit in support of the Summons reads;

‘The issue of liability and vicarious liability is denied’

This is not sufficient at all for this Court to form a provisional view of the probable outcome of setting aside the default judgment in order to arrive at a reasoned assessment of justice. He does not say why and how he is denying vicarious liability. He does not disclose facts in the affidavit in support of Summons to show why he is absolved from Vicarious Liability. It is an inflexible rule that there must be an affidavit stating facts showing a defence on the merits. At any rate where such an application is not supported, it ought not to be granted. (Please see;Farden vRitcher [1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124, Hopton v Robertson (1884) 8 T.L.R. 445 and Watt v Barnett [1878] UKLawRpKQB 28; (1978) 3 Q.B.D 363)

As I said, there is no mention whatsoever of any facts to absolve ‘vicarious liability’ in the first named first Defendant’s affidavit supporting the application to set aside default judgment. The first time these appear are in the first named first Defendant’s affidavit in reply to the Plaintiff’s affidavit in opposition with the result that the Plaintiff has been denied the opportunity to address them at all in his affidavit in opposition. The Counsel for the first named first Defendant ought to know that all the facts he intends to rely to absolve vicarious liability should be provided in the affidavit in support.

In “Ridoutv Ridout” (2001) MBQB 48, The Court held;

.... “The moving party must include in their initial affidavit all the facts they intend to rely on in support of their motion. They can file a second affidavit to reply to any new matter raised in the responding party’s affidavit. ‘New Matter’ does not mean a new fact relating to an area or issue already raised by the moving party; it means a new area or issue that was raised for the first time by the responding party.”

In “Lotz v Lotz” 2012, MBQB 57, the Court stated;

“The purpose of a reply affidavit is not to reiterate one’s position; it is to reply to new matters. Raised for the first time does not mean a different view on an area or issue already raised by the moving party. It means a new area or issue entirely”.

In “Millage v City of Sioux City” 258 F. Supp . 2d 976, the Court held;

“The Court does not approve of ‘hiding the ball’ on any issue until after the non-moving party has responded. Such a policy effectively deprives the non-moving party of a full and fair opportunity to address pertinent arguments. Moreover, the purpose of a reply is not to assert arguments that could and should have been asserted in support of the original motion, but to address “newly –decided authority or to respond to new and unanticipated arguments made in the resistance.”

It is not in dispute that the truck registered number FA 523 was registered in the first named first Defendant’s name. It is conceded that the Plaintiff and the second Defendant were his employees and the truck was on its way “to meet the deadline for loading of cargo at the Air Cargo terminal”. It is further conceded that the driver (the second Defendant) and the Plaintiff were not on a frolic of their own (Rambarrn v Gurrucharran, (1970) 1 W.L.R. 556). The two employees, i,e , the Plaintiff and the second Defendant were acting for the benefit of their Master , i.e , the First named first Defendant. They were acting in the course of the employment. The owner of the truck (the first named first Defendant) is liable for the consequences of the negligent driving of the truck by his employee, i.e , the second Defendant. Because the driver, i,e , the second Defendant was driving the truck with the owner’s consent on the owner’s business. The owner and the master is the one who put the truck on the road where it is capable of doing damage. He is the one who causes or permits it to be used. He is the one who is, or ought to be, insured in respect of it. He does not escape liability by saying that he was not in control of the driver at the time, and had no right to control him. Suffice it that, by himself, he allowed the driver to drive it on the fatal occasion. He ought, therefore, at common law to shoulder the responsibility. I do not see any legal basis to absolve the first named first Defendant from the doctrine of vicarious liability. The owner is at common law responsible for all injury or damage done by his permitted driver in the negligent driving of the vehicle. The truck is being used on this particular occasion for the advancement of some purpose in which the first named first Defendant has an interest. This is the basis of doctrine of ‘Vicarious Liability’. Vicarious liability means that one person takes the place of another so far as liability is concerned. (Please see; Atiyah , Vicarious liability in the Law of Torts, (1967) . ‘The doctrine of Vicarious Liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice’ (per Lord Pearce in Imperial Chemical Industries Ltd vShatwell [1964] UKHL 2; , (1965) A.C 656).

Even if i assume that the Plaintiff was intoxicated at the material time, the drunken condition of the Plaintiff will not absolve the first named first Defendant from vicarious liability. Because, the Plaintiff was only a passenger in the truck and wasnot in any way involved in either the control of the truck or the manner of its being driven by the second Defendant, the permitted driver of the first named first Defendant. The essential cause of the accident was the negligence of the second Defendant who had pleaded guilty to a charge of ‘negligent driving’ at the Magistrate’s Court. The Plaintiff’s intoxication is not the cause of the accident. The second Defendant had the last opportunity to avoid the accident. Even if I assume that the second Defendant, the driver, was intoxicated at the material time, the drunken condition of the driver will not absolve the first named first Defendant (employer) from vicarious liability. Because, at the time when the accident took place, the employee, the driver, was engaged on his employer’s business, the relation of employer – employee did exist. I should add that, as a matter of principle, an employer is liable for all torts committed by the fellow- employee in the course of the employment, including, for example, assault and libel. The employer cannot escape liability on the ground that he gave his employee no authority to commit torts, or even on the ground that he had expressly prohibited the employee from committing the tort in question. (Please see; Lloyd v Grace, Smith & Co (1912) AC 716, Heatons Transport (St Helens) Ltd v Transport and General Workers Union (1973) AC 15, Betts v Neilson, Betts v de Vitre [1868] UKLawRpCh 17; (1868) 3 Ch App 429 and Limpus v London General Omnibus Co [1862] EngR 839; (1862) 1 H & C 526).

Thus, I do not see any legal foundation to absolve the employer, the first named first Defendant, from the doctrine of vicarious liability.

Thus, I cannot help thinking that the object of the first named first Defendant’s application to set aside default judgment is to set up some mere technical case. Thus, the first named first Defendant is not entitled to set aside the default judgment on the issue of liability.

“The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his wife, his servant, his friend, or anyone else. If it is being used wholly or partly on the owner’s business or in the owner’s interest, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it out or hires it out to a third person to be used for purposes in which the owner has no interest or concern” ( per Lord Denning in Ormrod v Crosvillle Motor Services Ltd , (1953) 1 W.L.R. 1120 )

(13) Before I take leave of the matter, let me make this comment. As I mentioned earlier, in Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd’s Rep 221, it was held that in order to set aside the default judgment, the proposed defence advanced “must carry some degree of conviction” and this principle was further advanced in judgment of Moore-Bick J in International Finance Corporation Utexafrica S.p.r.1 (2001) CLC 1361 at p 1363. It was held;

“A person who holds a regular judgment even a default judgment, has something of value, and in order to avoid injustice he should not be deprived of it without good reason. Something more than merely arguable case is needed to tip the balance of justice to set the judgment aside. In my view, therefore Mr. Howard is right in saying the expression “realistic prospect of success” in this context means a case which carries a real conviction.”

(Emphasis added)

In E.D. and F.Man Liquid Products Ltd v Patel (2003) EWCA Civ 472, [2003] CPLR 384, the Court of Appeal confirmed that the test is the same as the test for Summary judgment. The only significant difference is that in a summary judgment application the burden of proof rests on the claimant to show that the defendant has no real prospect of success whereas in an application to set aside a default judgment it is for the defendant to show that his defence has a real prospect of success. For this reason it might be harder for a defendant to succeed in an application to set aside than to resist an application for Summary judgment. The test was considered in detail in Swain v Hillman [2001] 1 All ER 91.

(14) The reason for failure to enter an appearance

In respect of this the first named first Defendant says; (Reference is made to paragraph thirteen (13) of the First named first Defendant's affidavit in support of Summons)

THAT since I was not served with any further documents and since I remained in good terms with the Plaintiff and his family I was under the impression that the matter had been resolved and that due to our close relationship the Plaintiff had decided to discontinue the action against us.

This is the ‘reductio ad absurdum’of the whole argument. If there was a ‘close relationship’, would not first named first Defendant be concerned about his injured employee’s welfare? Would he expect him to simply discontinue the action without payment of a single cent to him? This should be made clear; I am not prepared to accept this; I am not prepared to draw such a fanciful inference. Even an illiterate under the First named first Defendant’s circumstances, would have consulted a Solicitor, or at the very least, someone who is in a position to explain the Court proceedings. The truth of the matter is the first named first Defendant did not care much for legal proceedings. He simply did not make any attempt to find out the progress of the Court proceedings or the welfare of his injured employee. He cannot now come before the Court after lapse of three long years and plead his innocence. This is not a criminal case in which I am called upon to allow my imagination to play upon the facts and find reasonable hypotheses consistent with innocence. A balance of probability is enough. And when the greater probability is that the first named first Defendant did not care at all for legal proceedings, why should this Court hesitate to find accordingly against the first named first Defendant. Thus, as to the explanation of non- appearance is unacceptable.

(15) Prejudice

The counsel for the first named first Defendant argued that the Plaintiff may be compensated by costs. The question of ‘prejudice’ only arises if the first named first Defendant has shown a defence on the merits or that the default judgment was irregularly entered. As I said earlier, I am satisfied that the default judgment was regularly entered and its form is in accordance with the High Court Rules, 1988. I reiterate that the three defences raised by the first named first defendant , i.e , the plea of contributory negligence, the plea of volenti non fit injuriaand the denial of vicarious liability , have no real prospect of success. They do not carry any degree of conviction. Therefore, the first named first Defendant is not entitled to set aside the default judgment on the issue of liability. Thus, the question of prejudice will not arise.

Essentially, that is all I have to say!!!

(G) FINAL ORDER

1. The first named first Defendant’s Summons to set aside default judgment is dismissed.

2. The first named first Defendant is ordered to pay costs of $ 1000.00 to the Plaintiff which is to be paid within 14 days hereof.

I do so order!

..............................

Jude Nanayakkara

Master

At Lautoka

13^th May 2016

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