IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 212 of 2021

BETWEEN:

VILIAME ROKOBULI   
PLAINTIFF

AND:

NARESH CHAND  
DEFENDANT 

BEFORE:
Acting Master L. K. Wickramasekara 

COUNSELS:
Messrs. Raikanikoda & Associates for the Plaintiff 
Neel Shivam Lawyers for the Defendant   
  
Date of Hearing:
By way of Written Submissions  

Date of Ruling:
30 October 2024

RULING 

01.	The Plaintiff by way of an Ex-parte Originating Summons filed on 21/10/2021 moved from Court, to be granted leave to file Writ of Summons out of time for the claim of damages on the death of Viliame Rokobuli aka Junior on 27/07/2006, allegedly caused by the Defendant’s negligence. The application has been made pursuant to Order 3 Rule 4 (1) and (2), and Sec. 16 (3) and 20 of the Limitation Act 1971. This summons was supported by an Affidavit of the Plaintiff sworn on 15/10/2021.

02.	It appears that the Plaintiff had taken steps to serve this Summons on the 1st Defendant, as initially there were two Defendants, and the matter was taken up inter partes before the Court. The 1st Defendant had filed an Affidavit in Opposition on the 10/12/2021. 

03.	On 21/06/2024, the Plaintiff had filed an Amended Originating Summons, with leave of the Court, and had removed the initial 2nd Defendant from the summons. This amended summons was supported with an Affidavit of the Plaintiff sworn on 20/06/2024. This Affidavit is termed as an ‘Amended Affidavit’, which is legally wrong as affidavits cannot be amended since they are sworn statements of facts. However, this Court will consider the Affidavit of the Plaintiff sworn on 20/06/2024 as a ‘Supplementary Affidavit’.

04.	Defendant moved to rely on the Affidavit in Opposition previously filed on 10/12/2021 in opposition to the Amended Originating Summons filed on 21/06/2024. The Court has allowed the same.

05.	Both parties have filed comprehensive written submissions on the application and on 06/09/2024 moved from Court to have the Ruling made on the written submissions.   

06.	The proposed Writ, as per the facts averred in the Supporting Affidavit of the Plaintiff, relates to a claim of damages against the Defendant arising out of the death caused to ‘Viliame Rokobuli aka Junior’ occurred as a result of a road traffic accident involving a bus driven by the Defendant. Plaintiff is bringing these proceedings in the capacity of the Administrator of the deceased’s estate as per the ‘Letters of Administration’ as issued on 30/12/2020. The alleged accident took place on 27/07/2006.

07.	The proviso under section 4(1) of the Limitation Act Cap 35 (the Act) clearly provides that an action in respect of personal injuries should be commenced within 3 years from the date on which the cause of action accrued. 

08.	As such any claim relating to the death of the deceased in this matter should therefore have been filed by 26/07/2009. However, this application has been made on 21/10/2021. That is after 12 years and 03 months from the expiration of the limitation period to have filed the claim. 

09.	Plaintiff in his Affidavit in Support has claimed that two crucial witnesses to the alleged accident, Seci Komaivunivesi and Kaminieli T Bogitini, could not be located from mid-2008 to 2020 and ‘as a result of this inknowledgeability (sic) of the witnesses address, there was a delay in the filing of this action’. There is no word as ‘inknowledgeability’ in English. However, I believe what the Plaintiff has meant is the lack of knowledge of the location of these witnesses had delayed the filing of the Writ. 

10.	Plaintiff has further submitted that he had received information on the location of these witnesses in mid-2020 and he had then managed to locate these witnesses and had obtained a statement from them on their willingness to testify to the alleged incident. The two statements have been annexed to the Supporting Affidavit filed on 21/10/2021.  

11.	Defendant in his Affidavit in Opposition had submitted that the Plaintiff was aware of the material facts relevant to the cause of action before the expiration of the limitation period but was dilatory in commencing proceedings. It is submitted that the Plaintiff had even obtained the ‘Letters of Administration’ on 30/12/2020, 14 years from the date of the accident and these proceedings were commenced almost after 10 months after obtaining the ‘Letters of Administration’.

12.	The Defendant has further averred that the fact the Plaintiff was not able to locate these witnesses is not a ‘material fact’ and/or a fact ‘of decisive character’ pursuant to Sec. 19 and 20 of the Limitations Act. It is also submitted that the Defendant would be prejudiced if leave is granted to the Plaintiff as the Defendant was discharged from the criminal charges relating to the alleged accident in 2014.

13.	Section 16 of the Limitations Act confers the discretionary power to the court to extend the time limit for actions in respect of personal injuries, upon fulfilling certain requirements. For the court to consider the extension of time, the application shall be made in accordance with section 17 of the Act, which provides,

Application for leave of court

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

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

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

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

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

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

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

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

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

14.	Section 17 of the Limitations Act stipulates that, whether the application is made before or after the commencement of any action, the court may grant leave if (and only if) it appears to the Court, on evidence adduced by or on behalf of the Plaintiff, that it establishes a cause of action and it fulfills the requirements of section 16 (3) of the Act, if such an action were brought forthwith. The relevant sub-section reads to the following effect.

16 (3) The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which-
 
(a)	either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period; and

(b) in either case, was a date not earlier than twelve months before the date on which the action was brought. (Emphasis added).
 
15.	The Limitation Act in Sections 19 and 20 provide the meaning of ‘material facts relating to a cause of action’ and the ‘facts of a decisive character’. 

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

19. In sections 16 and 18 any reference to material facts relating to a cause of action means a reference to any one or more of the following:-

(a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

(b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;

(c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.

Meaning of "facts of a decisive character"

20. For the purposes of sections 16 and 18, any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 22 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that, apart from any defence under subsection (1) of section 4, an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.

16.	Although the meaning of the above phrases has been statutorily given, it can still be ambiguous in its definition. It is therefore prudent to examine the decided cases locally and in Common Law to better understand the definition of these phrases. 
 
17.	Sections 16 and 17 of the Limitation Act 1971 are a reproduction in verbatim of the similar sections of the United Kingdom Limitation Act 1963. The relevant provisions of that Act have been considered in several English cases. 

18.	Lord Denning M.R in Goodchild v Greatness Timber Co Ltd [1968] 2 All ER 255 has explained the operation of these provisions at page 257 and held, 

It is very difficult to understand.  The particular section here in question is s.7 (4) which defines which facts are of a ‘decisive character’.  I can best explain it by stating the way in which it should be applied.  Take all the facts known to the plaintiff, or which he ought reasonably to have ascertained, within the first three years, about the accident and his injuries.  Assume that he was a reasonable man and took such advise as he ought reasonably to have taken within those three years.  If such a reasonable man in his place would have thought he had a reasonable prospect of wining an action, and that the damages recoverable would be sufficiently high to justify the bringing of an action – in short, if he had a “worth-while action” – then he ought to have brought the action within the first three years.  If he failed to bring an action within those three years, he is barred by the statute.  His time will not be extended under the Limitation Act 1963 simply because he finds out more about the accident or because his injuries turn out to be worse than he thought.  His time will only be extended if a reasonable man in his place would not have realized, within the first two or three years, that he had a “worth-while action”.  Then, if it should turn out after the first two or three years that he finds out facts which make it worthwhile to bring an action, he must start it within twelve months after he finds out those facts.  Then, and then only, will the time limit be extended so that he is not barred.

19.	Lord Denning M.R has further emphasized the need for scrutiny of any application for extension of time to see whether it is a proper case for leave. His Lordship has further held at the same page, 

I would add, however, that when application is made for leave under the Limitation Act 1963, a judge in chambers should not grant leave as of course.  He should carefully scrutinize the case to see whether it is a proper case for leave.

20.	Thus, pursuant to the above statutory provisions and the case authorities thereunder, the first question to decide in considering such an application for extension of time is whether the Plaintiff has adduced sufficient evidence to establish a cause of action against the intended Defendants? 

21.	As per the Affidavit in Support, as filed by the Plaintiff on 21/10/2021 and the supplementary Affidavit in Support filed on 21/06/2024, the Plaintiff has not submitted any relevant evidence to establish a cause of action. The Plaintiff submits that the two named witnesses, Seci Komaivunivesi and Kaminieli T Bogitini had knowledge of the accident. However, no evidence has been referred to in the affidavits to an “accident” or which refers to the cause of action. 

22.	Further, the Plaintiff claims that the delay in filing proceedings was because there was no information of the said two witnesses’ location. In support he had annexed a statement from each witness with the Affidavit filed on 21/10/2021 as ‘VR-03’. In plain reading of these two alleged statements from the named witnesses, it is clear that these witnesses have not mentioned any evidence regarding the alleged accident. Furthermore, the Court notes that both the witness has stated (in these alleged statements) that they have, in fact, moved out of their original locations in ‘Cunningham’ only in mid-2009. It is noted that the Plaintiff himself is from ‘Cunningham’ and he claims he could not locate these witnesses from mid-2008 to 2020. 

23.	In consideration of the facts averred by the Plaintiff in his Supporting Affidavits and having special consideration over the two statements of the witnesses relied upon by the Plaintiff, as crucial witnesses to the alleged accident, in his Affidavits in Support, I find there is no reference to any evidence, whatsoever, that can establish a cause of action pursuant to Sec. 17 of the Limitations Act.
   
24.	The second question, pursuant to Sec. 16 (3) of the Limitation Act, is whether it is proved that ‘the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff’? 

25.	In personal injury matters, the identity of the tortfeasor, to whose negligence the plaintiffs’ injuries was attributable, was held to be a ‘material fact of a decisive character' in Re Clark v. Forbes Stuart (Thames Street) Ltd. (intended action) (1964) 2 ALL E.R. 282), and Walford v. Richards (1976) 1 Lloyds Rep. 526). A Statute of Limitation cannot begin to run unless there are two things present - a party capable of suing and a party liable to be sued (Per: Vaughan Williams L.J. in Thomson v. Lord Clanmorris (1900) 1 Ch. D 718 at pages728 and 729).

26.	Lord Reid in Central Asbestos Co. Ltd v Dodd (1972) 2 ALL E.R. 1135 at page 1139 explained how the three years’ time limit is extended under the Act and what are the material fact relating to the cause of action and the facts of decisive character. 
This at least is plain.  The Act extends the three years’ time limits in cases where some fact was for a time after the damage was suffered outside the knowledge of the plaintiff, if that fact was ‘material’ and ‘decisive’.  Before a person can reasonably bring an action he (or his advisers) must know or at least believe that he can establish (1) that he has suffered certain injuries; (2) that the defendant (or those for whom he is responsible) has done or failed to do certain acts; (3) that his injuries were caused by those acts or omissions; and (4) that those acts or omissions involved negligence or breach of duty.

27.	As Lymington M.R. held in Halford v Brookers (1991) 1 WLR 428, the knowledge that is required for this purpose is not the knowledge for a certain and beyond possibility of contradiction, but the knowledge sufficient to embark on preliminaries to issue the writ as held at page 443 in this Judgment,
"In this context 'knowledge' clearly does not mean 'know for certain and beyond possibility of contradiction.' It does, however, mean 'know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence."
28.	Plaintiffs only reason as articulated in the Supporting Affidavits is that the location of the two crucial witnesses to the accident was not in his knowledge till the year 2020. However, I find that these two witnesses were, in fact, available and could have been reasonably located within the limitation period applicable to these proceedings as they had only moved out from their original locations in ‘Cunningham’, in mid-2009, when it was only after the expiration of the applicable limitation period.

29.	Besides, it is noted by the Court that since there’s no evidence being referred to in the Affidavits in Support, there is no facts before this Court to consider whether these named witnesses are, in fact, capable of revealing in evidence any material facts relating to the alleged cause of action and/or any facts of a decisive character, in which case, such facts could have been considered to be outside the knowledge of the Plaintiff. As such, in reality, Court finds that there’s no facts that could properly be identified as material facts relating to the alleged cause of action or facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the Plaintiff. 

30.	The simple fact that the Plaintiff was allegedly unaware of the location of these two named witnesses till 2020, cannot, in Court’s considered view, therefore be considered as a material fact relating to the cause of action or be included as a fact of a decisive character which was at all times outside the knowledge (actual or constructive) of the Plaintiff’, pursuant to the requirement in Sec. 16 (3) of the Limitation Act. 

31.	In overall consideration of the facts considered in the above paragraphs of this ruling, I find that at all material times, the Plaintiff had no justifiable reason, not to have filed a claim for damages for the death of Viliame Rokobuli aka Junior, as per the alleged accident and/or that the Plaintiff has categorically failed to establish before this Court, the requirements for extension of time to file a claim after the expiration of the limitation period pursuant to Sec 16 and 17 of the Limitations Act. 

32.	It is abundantly clear that by an overall examination of the Limitations Act, it is clearly established that the parliament’s intention in introducing the provision for extension of the limitation period was to extend the time limit to those who genuinely did not know the material facts and the facts of a decisive character in relation to the cause of action for damages for negligence, nuisance or breach of duty as provided in section 16 of the Act within stipulated period of three years. 

33.	It was clearly not the intention of the parliament to excuse the litigants who are ignorant and/or that sleep over their rights and hired ignorant and or negligent solicitors who are lethargic in taking steps within the appropriate timetable.  

34.	Whilst explaining how the parliament drew a line between the kind of ignorance which is to be a sufficient excuse for delay and the kind of ignorance which is not excused according to the provisions of (UK) Limitation Act 1963, Lord Pearson stated in Central Asbestos Co. Ltd v Dodd (supra) at pages 1148 and 1149,

In order to strike that balance Parliament would have to draw a line somewhere between the kind of ignorance which is to be a sufficient excuse for lateness in bringing an action and the kind of ignorance which is not to be a sufficient excuse for such lateness.  It seems to me that Parliament has drawn the line between ignorance of facts (Material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action.  If the plaintiff did not know one or more of the material and decisive facts, his lateness in bringing the action is excused.  If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused.  It seems to me that is the broad effect of sub-ss(3) and of s 7 of the Act.  That is where the line is drawn.

35.	The above analysis on the law and the facts of the case before me establishes that, the Plaintiff did know and/or as a reasonable person ought to have known the material and decisive facts relating to his alleged cause of action against the intended Defendant, well within the three years limitation period, and however, he ignored and/or was negligent in taking appropriate steps to bring in an action against the intended Defendant within the statutory time limit. 

36.	In conclusion, it is the considered view of this Court that the Plaintiff could not duly issue the Writ from this court within the statutory limitation period due to the inexcusable negligence or rather the lethargic attitude of the Plaintiff himself by sleeping over his legal rights, which cannot and/or shall not be an excuse for this Court to exercise its discretion by extending the limitation period. 

37.	Thus, based on the above legal and factual analysis and the findings of the Court, I hold that this application for leave to issue a Writ out of time, necessarily fails and ought to be dismissed subject to costs. 

38.	Court accordingly makes the following Orders, 

1.	The ‘Amended Originating Inter-parte Summons for Extension of Time to File Writ of Summons’ as filed by the Plaintiff on 21/06/2024 is hereby refused and accordingly struck out and dismissed subject to costs as summarily assessed by the Court as follows,

2.	Plaintiff shall pay $ 1500.00 as costs of these proceedings to the Defendant within 28 days.

3.	These proceedings shall wholly stand struck out and dismissed accordingly.

	

                                                                             L. K. Wickramasekara,
                                                                                             Acting Master of the High Court.
At Suva,
30/10/2024.