Devi v Tarai [1998] FJHC 84; Hbc0102d.98s (29 June 1998)

Fiji Islands - Devi v Tarai - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 102 of 1998

BE:

:

SHARMILA DEVI
f/n Rattan Sami
Plaintiff

AND:

URAIA TARAI
Defendant

Ms. P. Narayan for the Plaintiff
No appearppearance of Defendant

DECISION

This is the plaintiff's motion for an Order for an extension of time in which to commence an action against the defendant for damages allegedly suffered by the plaintiff.

Facts

On 9 August 1994 at about 8.30 a.m. the plaintiff Sharmila Devi was walking along Kings Road, Nasinu, Suva when she was struck and knocked down by a motor vehicle registration number BV 467 driven by the defendant Uraia Tarai.

The plaintiff sustained injuries to her left leg as a result whereof she was admitted to the Colonial War Memorial Hospital (the "Hospital") for a period of 2 weeks. The plaintiff was also pregnant at the time of the accident.

Consideration of application

Under s4(1) of the Limitation Act Cap. 35 (the "Act"), an action in respect of personal injuries should be commenced within 3 years from the date when the cause of action accrued.

However s16 provides for extension of time limit for actions in respect of personal injuries with provision under s17 for 'application for leave of Court' for the purposes of s16.

In this case the action should have commenced by the 9 August 1997 in order to be within the limitation period.

The plaintiff claims that she approached her solicitors Messrs. H M Patel & Co, (now closed) with instructions to institute legal proceedings against the defendant in April 1996. However she was advised by Mr. H.M. Patel (now deceased) that they would do so upon receiving her medical report for which they had written a letter on 29 May 1996 to the Hospital and were awaiting a reply.

The plaintiff contacted her counsel on a number of occasions regarding her claim but was always told that her claim would only be instituted upon receiving her medical report. However, when she visited the office of her counsel in September 1997 she found the office closed as Mr. Patel had died.

In the above situation it is apparent that it was not the plaintiff's fault that the time to institute her claim had expired. Actually she did her best to have an action instituted as soon as possible but the circumstances of the case were such that she could not avoid the delay in doing so.

If anyone is responsible for the delay it is the Hospital which did not give the plaintiff's medical report in time and also Messrs H M Patel & Co who knowing that the claim has to be brought within 3 years did not ensure that the medical report was received in time.

The plaintiff who was not even informed by her counsel that her claim has to be brought within 3 years should not be prejudiced in instituting her claim as a result of the negligence on the part of both the Hospital and her counsel. The plaintiff's claim would have been instituted well before the expiration of 3 years had her Counsel and the Hospital carried out the duties/responsibilities required of them regarding her case.

Also under section 17 of the Act a Court has the discretion to grant leave in respect of a cause of action to which the application relates if, firstly, the evidence adduced on behalf of the applicant is sufficient to establish a cause of action and secondly, matters constituting the cause of action were outside the applicant's knowledge (actual or constructive) when the action commenced.

In relation to 'firstly' the plaintiff has a medical report to establish her cause of action which is sufficient evidence. In relation to 'secondly' it has to be proved that the material facts relating to a cause of action were at all times outside the knowledge (actual or constructive) of the plaintiff until the plaintiff's time to institute the proceedings had expired.

In this case it is a valid argument that since the plaintiff had not received her medical report she could not be expected to know what injuries she had sustained in order to institute the action. According to her medical report her ankle was fractured in two places. The question is how would she be aware of such a fact for the purposes of her legal proceedings if she had not received her medical report?

Such a view was taken by LYMINGTON M.R. in HALFORD v BROOKERS (1991) 1 WLR 428, 443 in which he said:

"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." (emphasis added)

Applying such a view to the present case there is justification to say that without a medical report the plaintiff could not be expected to know the details of her injuries which were the material facts of her cause of action with sufficient confidence in order for her to take legal action against the defendant.

Such a view was also taken in DOBBIE V MEDWAY HEALTH AUTHORITY 1994 WLR p.1234 at p1235 C.A. where it was held:

"..... (1) that on its plain words Section 14 did not require a plaintiff to know that the act or omission on which he founded his cause of action was arguably actionable or tortious; that a claimant's date of knowledge, as defined by section 14, occurred when he knew that the injury in question was significant and capable of being attributed to something done or not done by the proposed defendant;....."

In this case, the plaintiff's medical report was needed to ascertain that her injuries were significant and capable of being attributed to the defendant's act.

In addition to this, the delay caused in instituting proceedings on behalf of the plaintiff is 6 months. I do not consider the delay so substantial as to prejudice the defendant in preparing his defence given the circumstances of the case.

Accordingly, I am satisfied that the plaintiff has brought herself within the terms of section 16 and 17 and her application should therefore be granted. It is ordered that the period within which the plaintiff may bring an action upon the cause of action alleged be extended to expire on a date 21 days after the making of this order. Costs of the application to be reserved at the hearing of the action.

D. Pathik
Judge

At Suva
29 June 1998

Hbc0102d.98s