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Angamma v Aisea [2011] FJMC 178; Civil Case 88.2010 (24 November 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil case No 88/2010

BETWEEN

ANGAMMA

AND

TITO AISEA

RULING

1. The Plaintiff filed an ex parte notice of motion on the 08th July 2010 seeking leave to file the claim out of time.
   
2. The Plaintiff filed an affidavit supporting the application together with a supplementary affidavit by the Plaintiff's son, Vasu Dewan.
   
3. The Plaintiff states in her affidavit that on the 12th January 2003 she was going to Lautoka Hospital for a routine check up and the next thing she could note was that she was admitted at the Lautoka Hospital. She states that later she was taken to her flat by her son and she was not told how she was admitted to the hospital. The Plaintiff states that "after several years" she was told by her son that she was involved in an accident and her son has not mentioned the incident to her as it could shock her due to her old age. Further the Plaintiff has stated in her affidavit that; "when I told my son I want to go and see a lawyer to make my will and I asked the lawyer he said I could claim".
   
4. The Plaintiff's son, Vasu Dewan filed a supplementary affidavit stating that he confirms the contents of the Plaintiff's affidavit. However it should be noted at the very out set that Vasu Dewan has stated in his affidavit that the Plaintiff's age at the time of the accident was 84 years, while the Plaintiff has stated her age to be 78 years at the time of the accident.
   
5. Be that as it may, I will now consider the law relating to extension of time in personal injury cases.
   
6. It appears that according to Section 4(1)(i) of the Limitation Act the limitation period for a personal injury claim is three years.
   

Section 4(1)(i): in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years.

7. However the law provides for claims out side the three years period under Section 16(1)(a) of the Limitation Act. A party who seek leave to file a claim out side the three years period can either seek leave before the filing of the action or after an action is filed. Section 16(1) reads as follows;
   

"The provisions of subsection (1) of section 4 shall not afford any defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which-

(a) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and

(b) the requirements of subsection (3) are fulfilled."

8. Section 16(3) reads as follows;
   

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.

9. Section 17(2) sets out the factors that has to be established to seek leave;
   

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.

10. In Goodchild V Greatness Timber Co. Ltd [1968] 2 All ER 255 it was held that;
    

" Take all the facts known to the Plaintiff or which he ought reasonably to have ascertained within the first 3 years about the accident and his injuries. Assume that he was a reasonable man and took such advice as he ought reasonably to have taken within those 3 years. If such reasonable man in his place would have thought he had a reasonable prospect of winning an action and that the damages recoverable would be sufficiently high to justify the bringing of an action – in short, if he had a worthwhile action- then he ought to have brought the action within the first 3 years. If he failed to bring an action within those 3 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 2 or 3 years that he had a "worthwhile action". Then, if it should turn out after the first 2 or 3 years that he finds out facts which make it worthwhile to bring an action, he must start within 12 months after he finds out those facts. Then, and then only, will the time limit be extended so that he is not barred."

11. I have considered the affidavits filed by the Plaintiff and her son. Further I have considered the written submissions filed on behalf of the Plaintiff. It appears that the Plaintiff's contention is that she was unaware of the incident initially and only after "several years" she was told about the accident. However it appears that the Plaintiff is not specific regarding the time on which she came to know about the accident. Further it does not appear that she has diligently acted even after having become known about the accident. The Plaintiff says in her affidavit that when she came to a lawyer to prepare her Will she has just inquired from the lawyer about filing a claim. It does not specifically say how long after she came to know about the accident that she instructed the lawyer to institute an action.
    
12. In Sharma V Sabolalevu [1999] FJCA 53; (27 August 1999) the Fiji Court of Appeal discussed the provisions regarding extension of time in a personal injury case after the commencement of the action. In that case it was stated that;
    

"It is apparent from these provisions that the crucial issue is the actual and constructive knowledge of the plaintiff under s.16(3). The appellant must show that the material facts relating to the cause of action including those of a decisive character were outside his actual or constructive knowledge......."

13. Section 21 deals with when facts will be taken out side the knowledge of a person;
    

21.-(1) Subject to the provisions of subsection (2), for the purposes of sections 16 to 18 a fact shall, at any time, be taken to have been outside the knowledge, actual or constructive, of a person if, but only if-

(a) he did not then know that fact;

(b) in so far as that fact was capable of being ascertained by him, he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and

(c) in so far as there existed, and were known to him, circumstances from which with appropriate advice within the meaning of section 22 that fact might have been ascertained or inferred, he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice as aforesaid with respect to those circumstances.

(2) In the application of subsection (1) to a person at a time when he was under a disability and was in the custody of a parent, any reference to that person in paragraph (a), (b) or (c) of that subsection shall be construed as a reference to that parent.

14. The alleged accident had occurred on the 12th June 2003. It appears that the Plaintiff has come to Court nearly after 7 years. It appears that the Plaintiff is either 78 years or 84 years when she was involved in the accident. Further it appears that the Plaintiff resides in a flat within her son's house. The Plaintiff states that her lawyer obtained details of the accident from her son. The Plaintiff does not state that her son was present when the accident occurred. However she says her grand daughter was with her and now she has migrated. There is no mention by the Plaintiff that there was a traffic case regarding the incident. Neither the Plaintiff nor the son of the Plaintiff explain as to how the son came to know about the details of the accident.
    
15. I am not satisfied that this incident was outside the knowledge of the Plaintiff. Even if the Court believes that the Plaintiff was not made aware of the accident initially, I am not satisfied that the Plaintiff has satisfied the requirements set out by law for the Court to exercise its discretion.
    
16. In the circumstances I decide to dismiss the ex parte notice of motion dated 5th July 2010.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

24.11.2011