Thoman v Chandra [1993] FJHC 1; HBC1086d.86s (29 January 1993)

Fiji Islands - Thoman v Chandra - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

Civil Jurisdiction

CIVIL ACTION NO. 1086 86

BETWEEN:

ALOYSIUS THOMAN s/o Deosi

Plaintiff

AND:

1. MOTI CHANDRA
s/o Bansi Maharaj
2. MOTI CHANDRA & CO. LTD.
Defendants

Mr. S. Pars for the Plaintiff
Mr. G.P. Shankar for the Defendants

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RULING

On the 24th of October 1986 the plaintiff issued a Writ of Summons claiming damages for injuries he sustained in a motor vehicle accident which occurred on the 6th of January 1985 in which the car he was driving was involved in a collision with a vehicle being driven by the 1st defendant.

It is not insignificant for present purposes that the first defendant was convicted on the 5th of September 1985 in the Navua Magistrates Court for an offence of Dangerous Driving arising out of the above mentioned accident in which the defendant is alleged to have attempted to overtake the plaintiff's vehicle on its off-side and collided with the rear of the plaintiff's vehicle.

On the 30th of October 1986 the defendants filed 2 separate 'Entry of Appearance' through different solicitors. No Statement of Defence was filed however until after the plaintiff's then solicitors sought judgment in the action for damages to be assessed.

On the 10th and 19th of November 1986 respectively, 2 separate 'Statements of Defence' were filed on behalf of the defendants by their 2 solicitors denying responsibility for the accident and attributing it solely to the negligence of the plaintiff.

Thereafter for the next 4 months various prelim procedural steps were comp complied with by the plaintiff's solicitors with a view to having the matter fixed for hearing.

Unfortunately the events of the 14th of May 1987 prevented the matter being fixed for trial and 4 years elapsed before the plaintiff through his present solicitors issued a 'Notice of Intention to Proceed' with the action.

The defendants then filed the present application to ss the plaintiff's action fion for want of prosecution on the dual grounds of inordinate and inexcusable delay and prejudice to the defendant owing to the passing away of a "material" witness (when? is not disclosed), and the emigration of a doctor who presumably treated the plaintiff for his injuries.

I note that th'materiality' of the defendant's witness is based on thon the fact that the witness was a so-called 'eye-witness' to the accident. It is not entirely clear however in whose car the eye-witness was seated though presumably it was the defendant's, but in any event the defendant himself as the driver of the vehicle can be expected to testify clearly and accurately to the circumstances surrounding the accident.

As for the doctor nothing has been disclosed as to the e of the material evidence ence that he might be able to give but in any event the plaintiff's injuries are likely to be a matter of medical records and needless to say the primary burden of proving any injuries rests on the plaintiff to prove. Nor is it entirely clear whether or not the doctor is uncontactable despite the efforts of the defendant.

The plaintiff for his part explains the delay on the basis of the closure of his formerormer solicitor's practice in Fiji and the lack of any response from the defendant's solicitors to the several written approaches made on the plaintiff's behalf to settle the case after proceedings had been instituted.

There can be no doubting that ha defendants replied unfavourably to the plaintiff's approacproaches as it ought to have done as a matter of common courtesy there would be greater force in their complaint of inexcusable delay.

As for principle whi accept the Court has a discretion, under the High Cour Court Rules as well as inherently, to dismiss an action in limine for want of prosecution nevertheless having regard to the pre-emptive nature of the relief i.e. dismissal in the absence of a consideration of the merits of the claim, I take the view that such an application ought to be granted only in the clearest of cases and where the prejudice to the defendant is clearly manifest.

In thse even accepting that the period of delay in this case is objectively 'excessive', I am not at all satisfied that the plaintiff was wholly to blame or that at least half of the period concerned is 'inexcusable'. Neither do I accept the bald assertion that the defendants are so prejudiced by the events that have occurred with regard to their witnesses that a fair trial could not now be had in their absence.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Accordingly the aption is dismissed with costs to the plaintiff to be in caus cause and the plaintiff is hereby ordered to take all necessary steps to have this matter listed for trial as soon as possible.

D.V. Fatiaki
JUDGE

At Suva,
29th January, 1993.

Hbc1086d.86s