Saqalau v Dee Cees Bus Services Ltd [2000] FJHC 14; Hbc0546j.99s (27 January 2000)

Fiji Islands - Saqalau v Dee Cees Bus Services Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO: HBC 546 OF 1999

BETWEEN:

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ASILIKA SAQALAU

Plaintiff

AND:

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DEE CEES BUS SERVICES LIMITED

1st Defendant

AND:

MOHAMMED ALIAS

ass=MsoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> s/o Musa

2nd Defendant

AND:

NATIONAL INSURANCE COMPspan>

3rd Defendant

COUNSEL: Ms S Saumatua for Plaintiff

Ex parte

Hearing: 14th January 2000

Judgment: 27th January 2000

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT

This is an application under section 17(1) of the Limitations Act Cap. 35, for leave to file an action out of The ex parte notice of motf motion was filed on 18th October 1999 supported by the affidavit of Asilika Saqalau, adminstratrix of the estate of Sireli Senitoa alias Sireli Senitoa Rabici.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> That affidavit shows that Sireli Senitoa died in a road accident on 14th October 1994. The proposed second Defendant, Mohammed Alias was the driver of the bus involved in the accident. He was employed by the proposed first Defendant Dee Cees Bus Services Limited. The proposed third Defendant had issued the insurance policy (third party) in respect of the Defendant’s bus.

At the hearing of the ex parte application, I told counsel for the applicant that no draft statement of claimbeen included in the affidaffidavit. She sought, and received leave to file a supplementary affidavit of the proposed Plaintiff. This affidavit was sworn on 20th January 1999. In that affidavit, Asilika Saqalau states that although the limitation period expired on 8th March 1998, three years from the date of the grant of letters of administration, she first knew that she could bring a claim against the Defendants in January 1998.

The statement of claim (annexure A-1 to the supplementary affidavit), claims negligence on the part of the 2nd Defendant, vicarious liability on the part of the 1st Defendant, and liability under insurance policy, on the part of the 3rd Defendant.

In her first affidavit, the proposed Plaintiff said that she did not file the action because she was only told in Janu998 that the criminal chargcharge of Causing Death by Dangerous Driving had been withdrawn on 1st March 1995. She said that she was poor and uneducated, that she was unaware of legal procedures and that the lengthy police investigations had caused delay.

Ms Saumatua, for the proposed Plaintiff submitted that leave should be granted.

Section 16(3) of the Limitation Act Cap. 35 provides that leave may be granted-

“if it is proved that the material facts relating to thate of action were or included facts of a decisive character cter which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which -

(a) &nnbsp;; espher ther was afas after the end of the three yearod relating to that cause ouse of action or was not earlier than twelve months before the end of that period; and

(b); in either case, was a dat not earlier than twelve months bths before the date on which the action was brought.”

Section 19 of the Act provides:-

“In sections 16 and 18, any reference to material facts relating to a cause of action means a reference to ne or more of the followingowing :-

(a)  p; tse fact that persopersonal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action.”

Section 20 of the Act provides:-

“.... any of the material facts relating to ae of action shall be taken, at any particular time, to have been facts of a decisive characharacter if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice .... would have regarded at that time as determining, in relation to that cause of action, that, ..... an action would have a reasonable prospect of succeeding ....”

Section 17(3) of the Act provides that leave may only be granted if there is evidence to lish the cause of action and if it appears to the court that that the matters constituting the cause of action were outside the actual or constructive knowledge of the plaintiff.

As the Court of Appeal said in Surya Deo Sharma -v- Jovesa Sabolalevu and the Attorney-General Civil Appeal No. ABU0043 of 1995S:

“... the crucial issue is the actual and constructive knowledge of thintiff under s.16(3). The appellant must show that the mate material facts relating to the cause of action including those of a decisive character were outside his actual or constructive knowledge until after the three year period or not earlier than 12 months before the end of that period, that is not earlier than 2 years after the cause of action accrued.”

In that case the Court of Appeal held that the appellant knew or ought to have known the nature andnt of his personal injuries shortly after the accident in w in which he had received them. This was well within the three year period, and earlier than 12 months before the limitation period expired. Furthermore, in response to the appellant’s argument that he did not have knowledge of facts of a decisive character until he was acquitted of dangerous driving, the Court held that in terms of section 20 “the appellant knew facts relating to the accident which a reasonable person, knowing those facts and having obtained appropriate legal advice, would have regarded as determining that an action would have a reasonable prospect of succeeding and resulting in the award of damages sufficient to justify the bringing of the action. The appellant was charged with the offence of dangerous driving on 19 October 1990. It is reasonable to assume that if the circumstances relating to the accident had not been adequately investigated before then, they would have been within a reasonable time after the laying of the charge.”

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Applying these principles to the case before me, the deceased died on 14th Octo994. The proposed Plaintiff was granted letters of administinistration of his estate on 9th March 1995. At that time, any reasonable person, taking appropriate advice, would have known of the existence of the cause of action. This was earlier than 12 months before the limitation period expired and well within the statutory 3 year limit. Furthermore, when the charge against the second proposed Defendant was withdrawn on 1st March 1995, any reasonable person taking appropriate advice would have known the relevant facts relating to the accident on enquiry with the police. The proposed Plaintiff says she did not enquire until January 1998. However, it cannot be disputed that on 9th March 1995 when she was granted letters of administration, she already knew of the death of the deceased, the circumstances in which he died, and the fact that the 2nd Defendant had been charged.

In all the circumstances, I find that the proposed Plaintiff has failed to satisfy the requirs of section 17 and section 16(3) of the Limitation Act. Let. Leave must therefore be refused.

The result may be a harsh one for the proposed Plaintiff who is uneducated and financially badly off. However as J said in Tuimasi Tasi Tubananitu -v- ANZ Bank Civil Action No. HBC 325 of 1999S:

“There are sound reasons for requiring Actions arising out of personal injuries to be ht within a reasonable time time of the accident, not the least of which is to alert the Defendant and allow relevant evidence to be gathered .... In some jurisdictions the apparent harshness of the law has been mitigated by reform. Until such reforms are introduced in Fiji, applications which merely advance ignorance of the law or lack of funds, must, in my view be refused.”

Nazhat Shameem

JUDGE

At Suva

Hbc0546j.99s