RULING
The plaintiff is the father of Ulamila Takatu who was killed in a motor vehicle accident on sup>th December 1989<1989. On or about the 7th December 1992 a solicitor acting on his behalf issued against the defendant driver, a Writ of Summons out of the High Court, Suva claiming special and general damages under the Law Reform(Miscellaneous Provisions) (Death and Interest) Act Cap.27 and the Compensation to Relatives Act Cap.29.
The defendant throug solicitors pleads the Limitation Act Cap.35 and argues that, in form, the WrWrit is a nullity for want of legal capacity on the plaintiff’s part.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The parties filed affidavits and defence counsel produced a very well-researched and comprehensive written submission which has assisted
me greatly.
It is convenient that I deal first with the Limitation Act defence. It is common ground that the plaintiff’s cause of action (if any) accrued on his daughter’s date of death namely 9th December 1989 and, pursuant to the proviso to Section 4(1)(d)(i) of the Limitation Act (Cap.35), the period within which the action could be brought ceased after `the expiration of three years from the date on which the cause of action accrued’ namely, 9th December 1992. The limitation period is further reinforced in Section 8 of the Compensation to Relative Act (Cap.29) which expressly requires any action under the Act `...... (to be) commenced within three years after the death of the person deceased’. So much then for the relevant limitation periods.
The evidence in support of Counsel’s submission that the plaintiff’s action is te-barred, is deposed by a claims officer of the defendant’dant’s
insurer as follows :
`The (plaintiff’s) Writ of Summons on the front ptates that the same was issued on the 7th day ofay of December 1992 and the back of the Writ of Summons states that it was issued on the 18th of December, 1992. I am informed that an eraser was used to delete a date on first page of Writ of Summons and was substituted with the date of 7th December, 1992.’
Plainly, if the plaintiff’s Writ was issued on1th December 1992 then it would have been twen two (2) days outside the statutory limitation period and accordingly statute-barred.
I say `if’ advisedly because the original Writ of Summons in the relevant court file bears a `FEES PAID’ stamp on its cover (not present on the defendant’s copy) which clearly indicates that fees amounting to $15.00 was paid pursuant to Revenue Receipt No: 346785 on `07 Dec 1992' when, presumably, the original Writ was lodged and sealed in the High Court, Suva [see : Order 63(1) of the High Court Rules 1988].
I accept that the back cover of defeounsel’s copy of the Writ bears a High Court `Filed’ stamp clea clearly dated `11 Dec 1992', but, noticeably, the solicitor named as appearing for the plaintiff are Messrs. Parmanandam, Ali & Co. which is plainly incorrect. Whatsmore, it is inconceivable that filing fees for a Writ of Summons could be paid before it is actually filed in the High Court registry which would be the result if defence counsel’s submission is upheld.
I am satisfied that the `FEE PAID’stamp is a complete answer to this ground of objection which is accordingly dismissed.
The second more substantial objection of defence counsel is based on the fnd capacity in which the plaintiff brings his claim. In
subn substance, counsel submits that `...... this action is a nullity for reason that the plaintiff has sued in a representative capacity as `intended administrator’ and
before the proper grant of Letters of Administration’. Counsel also relies heavily on the decision in Ingall v. Moran (1944) K.B. 160.
Counsel for the plaintiffthe other hand, submits that no one has been or could possibly be misled by the form and cand capacity in
which the plaintiff has pleaded his claim which is clearly sanctioned by Section 10 of the Compensation to Relatives Act (Cap.29) which provides (inter alia):
`Where in any of the cases provided for by this Act it happens that there is no administrator of the deceased person , ...... then such action may be brought by and in the name or names of all
or of any of the persons, if more than one, for whose benefit such action would have been if it had been brought by and in the name
of the ...... administrator.’
In this regard, Section 3 of the b> creates the right to maintainction against and tand to recover damages from any tory tortfeasor who causes death by his wrongful
act, neglect or default and, Section 4 vests the same for the benefit of specified dependants who are close relatives of the deceased such as, in this case, the plaintiff
who is a `parent’ of the deceased.
In Seward v. The Vera Cruz (1884) 10 Aas 59 the Earl of Selbourne L.C. pointed out that that the U.K. equivalent of our Sections 3 & 4, created a new statutory cause of action `...... given in substance not to the person representing in point of estate the deceased man, who would naturally represent him as
to all his own rights of action which could survive him, but to his wife and children, no doubt suing in point of form in the name
of the executor’.
More recently, in Austin v. Hart (1983) 2 ALL E.R. 341 the Priuncil said of an identidentically worded section to our Section 10(2) above, at p.343:
`The benefit of the right of action does not form part of the estate o deceased or devolve under the provisions of his will. The
The (Compensation for Injuries) ordinance provides machinery for the action to be brought by personal representatives of the deceased as trustees for the dependant
or, in certain circumstances, for one or more of the dependants themselves to bring the action as trustee or trustees for all of
the dependants.’
Furthermore the Court in allowing the action in the case to continue despite the possibility that it had been irregularly instituted
before the expiration of the 6 months time limit contained in the Section said, at pp.344/345 :
`......if a premature action is irregular and the irregularity is kind, which, as in the instant case, was cured without amet amendment
by the mere lapse of time and which causes no prejudice to the defendant, there is no reason for the Court to insist that the irregularity
nullifies and invalidates the whole proceedings. The modern approach is to treat an irregularity as a nullifying factor only if it
causes substantial injustice : see : Marsh v. Marsh (1945) A.C. 271 at 284.’
Similarly in the present case, the plaintould have instituted the proceedings in his own name as a trustee for the dependants for
whor whose benefit the cause of action was created by statute, and the fact that the action was instituted in his capacity as `intended administrator’, is, at most, an irregularity, which caused no injustice at all to the defendant.
Needless to say the capacity in which the plaintiff sued in Ingall v. Moran`>`administrator of his deceased son’s estate’ which is materially different from the capacity in which the plaintiff is suing in the present case as `intended administrator’ suing `......on behalf of the estate of (his) deceased daughter ...... for the benefit of the relatives ...... under the Compensation to Relatives Act Cap.29'. The former capacity assumes the grant or existence of Letters of Administration whereas the latter plainly does not.
Defence counsel counters, however that even if Section 10 could be invoked, nevertheless, the plaintiff is in breach of the mandatory requirements of Section 9 of the Compensation to Relatives Act (Cap.29) in failing to provide to the defendant with the Statement of Claim, `...... full particulars of the person or persons for whom and on whose behalf the action is brought ......’
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The undisputed affidavit evidence deposed by the plaintiff’s son satisfies me however, that the plaintiff is the sole surviving parent
of the deceased Ulamila Takatu who `died intestate leaving no husband or issue’, and therefore, in law, the plaintiff is the sole beneficiary of the deceased’s estate. As such, there has been no breach of Section 9. Quite simply, there were no other entitled dependants of the deceased to be named.
For the foregoing reasons the defendant’s summons dated 10th June 19> is dismissed with costs which are summarily assessed at $200.00.
D.V. Fatiaki
JUDGE
At Suva, 13th July, 2001.
HBC0528D.92S
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