Tuvalili v Subramani [2000] FJHC 195; HBC0224D.1999L (4 October 2000)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVL ACTION NO. HBC0224D.99L

Between:

AMELIA TUVALILI
Plaintiff

And:

SAMSUN SUBRAMANI
of Yalalevu Ba.
First Defendant

JAMES NARAYAN
of Rifle Range Lautoka.
Second Defendant

Counsel: P. Samusamuvodre for the Plaintiff
: N.A. for the Defendants

Date of Hearing: 6 August 1999
Date of Decision: 4 October 2000

DECISION

Amelia Tuvalili has by motion dated 24 June 1999 sought leave to file proceedings for personal injuries out of time. It is supported by her affidavit sworn 15 June 1999. The application is made pursuant to section 17 of the Limitation Act Cap. 35 (the “Act”). The accident in which the plaintiff was allegedly injured occurred on 13 March 1992, some eight years six months ago. She initially instituted proceedings in Suva on 13 May 1995 in Civil Action No. HBC0238 of 1995S. Matters went no further. On 10 August 1998 the plaintiff was advised to commence this application in the western division (at Lautoka) where the accident occurred. She has not done so, hence the present application.

Section 4(1) of the Act imposes a three (3) year limitation period “in the case of actions for damages for negligence... where the damages claimed ...consists of or includes damages in respect of personal injuries to any person.” Unless the plaintiff can persuade the court to grant her an extension of the statutory time limit, any claim for damages for injuries she suffered would be statute-barred.

The relevant provision in this regard is section 17(2) which states:

“Where... an application is made before the commencement of any relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by ... the plaintiff, it appears to the court that, if such an action were brought forthwith and like evidence were adduced in that action, the evidence would, in the absence of evidence to the contrary, be sufficient -

1. to establish that cause of action, apart from (any limitation) defence; and
   
2. to fulfill the requirement of subsection (3) of section 16 in relation to that cause of action.”
   

Section 16(3) is as follows:

“..... the requirements of this sub-section 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 -

1. either was after the three year period relating to that cause of action or was not earlier than twelve months before the end of that period; and
   
2. in either case, was a date not earlier than twelve months before the date on which the action was brought.”
   

The court respectfully adopts the approach taken by Fatiaki J in Maikeli Masivou v Sukh Deo Singh & Anr Civil Action No.0247 of 1999 wherein his Lordship stated at 4:

“The combined effect of the above provisions in my view, is to postpone the running of the statutory time limit so long as the plaintiff remains ignorant of ‘material facts relating to the cause of action’ (see: section 19) or ‘facts of a decisive character’ (see: section 20).”

In paragraph 8 of her affidavit in support, the plaintiff states:

“THAT I was informed by my younger sister ELENOA QELO sometimes in March, 1995 that I can claim against the convicted driver who caused the accident by filing a Third Party Claim in respect of the injuries I received.”

She continues at paragraph 10 of her affidavit:

“THAT after my said sister informed me that I can take a civil claim against the convicted driver who caused the accident, I then sought legal assistance from the law firm of Q.B. Bale & Associates of Suva, and was advised that I have a reasonably good claim but I was out of time as the three (3) years period for lodging a civil claim had expired.”

In the court’s respectful opinion it is apparent the plaintiff had knowledge (actual or constructive) before three years had expired that it was open to her to file suit against the convicted driver for injuries he caused her in the accident. However, by the time she acted on that knowledge the limitation period for instituting a personal injuries claim had expired. She therefore cannot claim ignorance in the period described in section 16(3) (c) of the Act.

The court is fortified in this approach by the case of Nash v Eli Lilly & Co. [1993] 4 ALL ER 383 where their Lordships of the English Court of Appeal considered the meaning of “knowledge” in their equivalent of our Act. The case note reads inter alia:

“Held ... A firm belief held by the plaintiff that his injury was attributable to the act or omission of the defendant, but in respect of which he thought it necessary to obtain confirmation from experts, would not be regarded as knowledge until the result of his injuries was known to him, or if he delayed in obtaining that confirmation, until the time when it was reasonable for him to have obtained it. Knowledge of the essence of the act or omission to which the injury was attributable was required but not proof of knowledge of the terms on which it would be alleged that the act or omission of the defendant constituted negligence ....” (emphasis added)

In similar vein their Lordships of the Court of Appeal in FEA & A-G v Miriama Ganilau Civil Appeal No. 50 of 1997 cited with approval the dicta of Lord Donaldson MR in Halford v Brooks [1991] 1 WLR 428 at 443:

“Knowledge clearly does not mean knew 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.”

As at March 1995, the plaintiff knew that she could sue the driver who caused her injuries with his actions (i.e. driving).

It follows that this application must fail with unfortunate consequences for the plaintiff and the court can only respectfully endorse the pleas of Scott and Fatiaki JJ “to consider reforming the existing law not only in simplifying its existing requirements but also in providing the court with an over-riding discretion in the matter” Masivou’s case at 8, 9. There will be no order as to costs.

Joni Madraiwiwi
PUISNE JUDGE

At Suva
4 October 2000