Cakau v Habib [1999] FJHC 53; Hbc0241d.98s (18 June 1999)

Fiji Islands - Cakau v Habib - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 0241 OF 1998

:

KALESI CAKAU
Plaintiff

AND:

1. ABDUL HABIB
s/o Rahiman

2. MOHAMMED JANIF
s/o Farzand
Defendants

Mr. S. Samuels for the Plaintiff
Mr. B. Sweetman for the Defendants

RULING

This is an application pursuant to Section 17 of the Limit Act (Cap. 35) ('the Act') for leave to i to issue a Writ claiming special and general damages for personal injuries outside the limitation period of three (3) years fixed for such a claim under proviso (i) to Section 4(1) of the Act.

Under such an application the Court is empowered:

'(to) grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced ... it appears to the court that, if such an action were brought forthwith and like evidence were adduced in that action, that evidence would, ... be sufficient -

(a) to establish that cause of action ...;

and

(b) to fulfil the requirements of subsection (3) of Section 16 in relation to that cause of ac'

As to requirement (a) abo> above, the 'evidence' adduced in the plaintiff's affidavit in support of the application for leave tells of how on the 28th of September 1993 the plaintiff, who was a 17 year old fifth former living with her parents, was a fare-paying passenger travelling in a bus at Veisari when it was involved in a collision with an overtaking truck owned by the second defendant and being driven in the opposite direction by the first defendant.

In the accident the plaintiff sustained injuries to her right arm which subsequently had to be amputated above the elbow. As a result of her injuries the plaintiff was unable to finish her secondary schooling and, although she is now married, she continues to suffer from the loss of her arm.

The first defendant was subsequently convicted and fined in the Magistrate Court, Suva for an offence of Dangerous Driving arising out of the same collision.

I am more than satisfied that the above 'evidence would, in the absence of evidence to the contrary, be sufficient to establish' the plaintiff's claim for damages for the personal injuries she suffered as a result of the 1st defendant's negligent driving'.

As to requirement (b) above, Section 16(3) of the Act provides:

'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 the 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.'

As to what are 'material facts relating to a cause of action', Section 19 of the Act provides that the phrase refers amongst other things, to the following:

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

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

Section 20 of the Act then defines the meaning of 'facts of a decisive character' in the following objective terms:

'... if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice ... with respect to them, would have regarded at that time as determining ..., that, 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.'

For the sake of completeness reference should be made to the subjective provisions of Section 21 which provides that:

'... 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 know that fact;

(c) in so far as there existed, and were known to him, circumstances from which with appropriate advice ... that fact might have been ascertained ..., 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 ... with respect to those circumstances.'

The above provisions are an exact duplicate of the provisions of Sections 1 & 7 of the Limitation Act 1963 (U.K.) which were considered by the House of Lords in the leading case of Central Asbestos Co. Ltd. v. Dodd (1972) 2 ALL E.R. 1135.

Their lordships in construing the above provisions were extremely critical of the drafting manner adopted, describing it as: '... the worst drafted Act in the statute book' (per Lord Reid at 1138); ... 'notoriously difficult to construe' (per Lord Pearson at p.1148); and ... formulated to disguise rather than reveal the meaning which it was intended to bear' (per Lord Salmon at p.1159).

In their majority judgments their lordships held:

'(i) (per Lord Reid and Lord Morris of Borth-y-Gest) time did not begin to run against a plaintiff under S.1(3) [the equivalent of our Section 16(3)] ... until the date on which he learnt that his injuries were attributable to the defendant's negligence, nuisance or breach of duty i.e. that he had a legal remedy or cause of action against the defendant in respect of his injuries, for that constituted a material fact under Section 7(3)(c) [the equivalent of our Section 19(c)].'

Lord Reid, in particular, in identifying the necessary elements of a claim for damages for personal injuries said at p.1139:

'Before a person can reasonably bring an action he (or his advisors) 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.'

In this case there can be little doubt that the plaintiff sustained severe personal injuries as a result of the collision between the bus in which she was a passenger and the truck being driven by the first defendant and this would have been known to her on the date of the accident when the injury was suffered and her arm was amputated. But whose negligence or breach of duty (if any) caused the collision? I am satisfied she would not and did not know at the time.

As to Section 19(c) above, there would have been in my view, two (2) clear possibilities open to the plaintiff. As a fare-paying passenger on a public transport bus she was owed a 'duty of care' by the bus driver to ensure that his driving did not endanger her, and, as against the 1st defendant truck driver, the plaintiff was owed a similar duty as a sufficiently proximate and foreseeable road-user. She could have sued either or both drivers relying on negligence and/or breach of duty.

As for 'the extent to which' her injuries were 'attributable' to either driver's negligence and/or breach of duty however, the plaintiff I am satisfied did not and could not have known until such time as she or her parents had obtained 'appropriate (legal) advice' or possibly, the responsible driver had been identified and confirmed in a successful criminal prosecution.

The latter of these events occurred, it is common ground, on the 8th of March 1995 when the 1st defendant was convicted of Dangerous Driving, and the former, a few months later, on the 12th of May, 1995 when her father sought legal advice. Both dates are well within the three (3) year limitation period and it is very unfortunate that proceedings were not commenced earlier and doubly unfortunate, that the plaintiff's father did not depose to the legal advice he received (if any) and his understanding of it.

Instead, the plaintiff's claim got 'caught up' by staff movements in her solicitor's office and, much later, by their ill-advised pursuit of a detailed medical opinion as to the degree of incapacity arising from the plaintiff's injuries when her amputated arm spoke volumes without such an opinion.

In this way two (2) years was lost or wasted as a result and the limitation period elapsed without a Writ ever being issued.

Be that as it may and mindful that the Fiji Court of Appeal has recently described as 'convoluted' the above provisions of the Act, in F.E.A. and A.G. v. Miriama Ganilau Appeal No. 50 of 1997 delivered 14th May 1999, I am satisfied on the evidence produced by the plaintiff of the following:

(1) that the requirements of Section 17(2)(a) of the Act have been fulfilled; and

(2) that the evidence fulfils the multifarious requirements of Section 16(3) of the Act in so far as the identity of the driver to whose negligence the plaintiff's injuries was 'attributable', was 'a material fact of a decisive character' [See: 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)] which was unknown to both the plaintiff and her parents at all material times and for the ascertainment of which the plaintiff's father had at the relevant time, taken all reasonable actions that could be expected of him [See: In re Pickles v. N.C.B. (intended action) (1968) 1 W.L.R. 997 and Newton v. Cammell Laird & Co. (1969) 1 W.L.R. 415].

Needless to say I cannot accept that despite her father doing everything that reasonably could be expected to be done, the plaintiff is, nevertheless, to be denied leave because of the fault or failings of her solicitors, to institute proceedings within the limitation period.

In any event as was emphasised by Vaughan Williams L.J. in Thomson v. Lord Clanmorris (1900) 1 Ch.D. 718 at p.728/729:

'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.'

If therefore the identity of the 'party liable to be sued' is unknown and unascertained then, in my view, a precondition for time beginning to run has not been fulfilled. In this latter regard the relevant date in my opinion, is the 12th of May, 1995.

The application is accordingly allowed and the plaintiff is granted leave to commence proceedings within 7 days of the date hereof.

D.V. Fatiaki
JUDGE

At Suva,
18th June, 1999.

Hbc0241d.98s