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Teukin v Dojin Trading Co Ltd [2017] KIHC 23; Civil Case 58 of 2016 (30 May 2017)

IN THE HIGH COURT OF KIRIBATI 2017

CIVIL CASE NO. 58 OF 2016

(HELD ON KIRITIMATI ISLAND)

[MOUA TEUKIN PLAINTIFF

[

BETWEEN [AND

[

[DOJIN TRADING COMPANY LIMITED DEFENDANT

Before: The Hon Chief Justice Sir John Muria

26 May 2017

Ms Taoing Taoaba for Plaintiff

Mr Banuera Berina for Defendant

JUDGMENT

Muria, CJ: The plaintiff was said to have been employed by the defendant in 2010. A writ was originally filed as HCCC 46/14 on
14 April 2014. It has been pleaded that:

“On or about 22 April 2010 in Kiritimati Island, the plaintiff, together with other men, worked on the fishing vessel
‘San Andress’ to transfer its catch to the big mother vessel. During the transhipment the plaintiff’s eye was injured”.

That writ with a Statement of Claim were never served on the defendant and so on 7 October 2015 the writ was struck out, having been expired.

The plaintiff has now re-issued a writ filed on 25 August 2016 claiming damages for injuries sustained on 22 April 2010. The claim is in tort of negligence.

The defendant has applied to dismiss the plaintiff’s action on the basis that the claim is now statute-barred. The defendant relied on section 4(1) of the Limitation Act which provides as follows:

“4(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

(a) actions founded on simple contract or on tort”.

Mr Berina of Counsel for the defendant submitted that the cause of action arose on 22 April 2010. The writ now filed on 25 August 2016 and signed on 2 September 2016 is out of time. It is argued by the defendant that the claim was filed more than six years from the date on which the cause of action arose.

Relying on section 4(1) of the Limitation Act 2004, Mr Berina submitted that the plaintiff’s action is statute-barred and should be dismissed.

Ms Taoaba of Counsel for the plaintiff, on the other hand, submitted that the plaintiff’s action is not statute-barred. Basically, the argument on behalf of the plaintiff is that the original writ was filed in 2014 and that the present writ was simply a renewal of the 2014 claim.

Counsel for the plaintiff accepted that the cause of action arose on
22 April 2010. It is also not disputed that the original writ issued on
14 April 2014 was struck out by this Court on 7 October 2015, it not having been served and having been expired.

Both Mr Berina and Ms Taoaba raised arguments regarding the application of the Workmen’s Compensation Ordinance. The plaintiff’s claim, as far as the Court is concerned and appearing on the writ served with a Statement of Claim, is not a claim under
Workmen’s Compensation. The Statement of Claim specifically stated that the plaintiff’s claim is for damages for injury to the eyes, arising out of the alleged negligence on the part of the defendant. A claim for compensation under Workmen’s Compensation Ordinance is a claim under Statute and so, it must be specifically pleaded as such. Any argument based on the Workmen’s Compensation is irrelevant.

The plaintiff’s claim in this case is a claim in tort, alleging negligence on the part of the defendant. The plaintiff must succeed on his claim as pleaded.

Having said all that, I return to the only relevant issue here, namely, whether the plaintiff’s present claim is time-barred under section 4(1) of the Limitation Act. The language of section 4(1) of the Act is mandatory. The claim on simple contract or on tort “shall not” be brought after six years from the date the cause of action arose.

It must also be mentioned that there is no argument or suggestion, especially by the plaintiff, that the date the cause of action arose was some other date, other than 22 April 2010. In fact, when the Court asked Counsel for the plaintiff in Court as to the date the cause of action arose, Counsel stated that it was 22 April 2010. Thus it must be accepted that the date the cause of action arose was 22 April 2010.

In terms of section 4(1) of the Limitation Act, six (6) years from
22 April 2010 expired on 22 April 2016. The writ with the Statement of Claim in the present case was filed on 25 August 2016 and issued out from the Registry on 2 September 2016. Taking either of those two dates, the plaintiff’s claim clearly had been filed outside of the six (6) years time limit fixed by section 4(1) of the Limitation Act.

The plaintiff does not accept that his claim is statute-barred. Ms Taoaba argued that the present claim is only a renewal of the claim in Civil Case No. 46/14 and therefore the present claim must be regarded as a continuation of Civil Case 46/14. Thus, it is said to be not time-barred.

Unfortunately, the plaintiff’s argument must fail. The plaintiff’s claim in Civil Case 46/14 was struck out because the writ lapsed without it having been served on the defendant after 12 months of it being issued. The life of the writ of summons commencing the action in that case simply die its natural death and the action became non-existent.

When the Court struck out the claim on 7 October 2015 because the writ expired, there was no claim in existent in Court arising from the incident which occurred on 22 April 2010. It follows that the present claim cannot be a renewal of Civil Case 46/14 because there is nothing to renew at all. Renewal is only possible of something that still exists. Renewal of the claim in Civil Case 46/14 would only be possible if an application for renewal was made during or before the expiry of the writ in that case. See O.8 r.1 of High Court Rules.

The present case Civil Case 58/16 is a new claim brought after six (6) years from the date the cause of action accrued on 22 April 2010. The defendant’s application must succeed.

The result is that, the plaintiff’s present claim in Civil Case 58/16 is statute-barred. It must be dismissed with costs.

ORDER: 1. Plaintiff’s claim statute-barred

2. The plaintiff’s claim in Civil Case 58/16 is dismissed

3. Costs to the defendant to be taxed if not agreed.

Dated the 30^th day of May 2017

SIR JOHN MURIA

Chief Justice