Tamudu v The Medical Superintendent of the Colonial War Memorial Hospital [2003] FJHC 301; HBC0217d.2002s (4 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0217 OF 2002

Between:

RALOGA TAMUDU
Plaintiff

and

THE MEDICAL SUPERINTENDENT
OF THE COLONIAL WAR MEMORIAL HOSPITAL
THE ATTORNEY-GENERAL OF FIJI
Defendants

Mr. S. Valenitabua for the Plaintiff
Ms. N. Basawaiya with Ms. Karan for the Defendants

DECISION

This is the plaintiff’s motion for leave to file an action for medical negligence claiming damages against the defendants out of time.

An affidavit in support sworn 8 May 2002 was filed on 23 May together with a proposed Writ of summons and Statement of Claim along with annexures.

In her said affidavit the plaintiff outlined the circumstances in which she was forced to retire from nursing services at the age of 48 years by memorandum dated 2 March 2001 to be effective from 12 March 2001,

The plaintiff deposed that she was retired ‘on medical grounds’ subsequent to complications arising after the birth of her first child on 19 October 1977 by ‘caesarean section’ as a result of wrong medication namely ‘stilbestrol’ tablets having been prescribed to her. She had her second child on 10 March 1982 and her third child on 10 April 1992 delivered by Caesarean section by Dr. Mary Schramm. Then in December 1997 she started to suffer from ‘varicose ulcer’ on her left leg and was admitted to CWM Hospital on 2 March 1998 for severe cellulitis and thereafter put on sick leave until 4 May 1998. She said in the proposed Statement of Claim, inter alia:

19. THAT both of the Plaintiff’s legs were and continue to be affected and the Plaintiff’s feet were and continue to be oedematous as a result the Plaintiff had and continue to have difficulties walking or standing up for long periods of time as demanded by her profession.
    
20. THAT the Plaintiff suffered from severe Cellulitis with Deep Venous Thrombosis (DVT) for the second time in December, 1999, was admitted on 28.12.99 and discharged on 30.12.99 due to the nurse’s strike and was later admitted again on 01.02.00 and discharged on 10.02.00.
    
21. THAT the Plaintiff was put on extended and continuous sick leave from 25.12.99 until her forced retirement from the nursing service effective from 12.03.01. The Plaintiff was 48 years old when she retired.
    
22. THAT the Plaintiff was last admitted to hospital on 13.3.01 and was prescribed Aspirin by one Dr. Rao (the consultant surgeon) and his team. This prescription caused heavy bleeding with clots to the Plaintiff and as a result, on the third day during the doctors’ and nurses’ morning round, the Plaintiff asked them to stop giving the Plaintiff aspirin because the Plaintiff was passing blood clots heavily.
    
23. THAT the Plaintiff’s blood was checked and it was discovered that after three days the plaintiff’s HB had dropped from 11.7 gm to 8.7 gm and the Plaintiff was very weak. The Plaintiff asked members of her family to bring her food, fruits and vegetables and after consuming these the Plaintiff’s HB increased.
    
24. THAT the said Dr. Rao even explained to Medical Students that the Plaintiff suffered from Iron Deficiency Anaemia.
    

Subsequently, after being refused overseas treatment she did go overseas for medical attention. She alleges that the defendants and/or their servants and/or agents were negligent in the performance of their professional duties.

In Reply to the said affidavit Ajay Singh, the Assistant Secretary (Litigation) in the Office of the Solicitor-General in his affidavit states that plaintiff’s action is statute-barred under the Limitation Act Chapter 35 of Laws of Fiji.

Further he says:

2. if the plaintiff is allowed to file her Statement of Claim, then this will be prejudicial to the defendants:-
   

a] due to the lapse of time between the alleged negligent incident and plaintiff’s application, the defendants will be disadvantaged as it would be difficult to present evidence from them.

3. I pray to this Honourable Court that the Plaintiff’s action be dismissed with costs in favour of the defendants.
   

The plaintiff, inter alia, filed a reply to defendants’ affidavit as follows:

(a) I am making this application so that time could be extended to enable me to file my Statement of Claim against the Defendants.

(b) I was prescribed an overdose of stilbestrol tablets in 1977;

(c)
(d) I suffered severe side-effects and complications of the said overdose in 1997;

(e) I obtained legal advice in January, 2001;

(f) my employment was terminated on 12 March, 2001

(g) In May, June, and July, 2001 I was undergoing treatment in Australia; on my husband’s expenses;

(h) I gave instructions to my lawyer to sue upon my return to Fiji in August, 2001

4. I further say that I could not sue earlier due to physical and financial incapacity on my, and my husband’s part.

Consideration of the issue

As ordered both counsel filed written submissions. Oral submissions were also made.

Before issuing a Writ of Summons herein it is proper that the plaintiff applies for leave to institute proceedings out of time. It was observed by the Fiji Court of Appeal in Permal (infra) at 7 that “generally speaking it can be stated that in virtually all cases leave should be sought before issuing a writ”. The plaintiff has however annexed to his affidavit a proposed Writ of Summons together with Statement of Claim.

Statutory provisions

I set out below the sections of the Limitation Act (Cap. 35) (the “Act”) in so far as they are relevant to this application.

Under section 4(1) of the Act there is provision for the bringing of certain types action within a certain period and in relation to damages for personal injuries it relevantly provides:

“4 – (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(a) .....

(b) .....

(c) .....

(d) actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:

Provided that –

(i) in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years;

(ii) .......” (emphasis added)

AND s16 provides for extension of time limit for actions in respect of personal injuries. It is as follows in so far as it is relevant:-

“(3) 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 that 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.

(4) For the purposes of subsection (3), reference to the three-year period relating to a cause of action means a reference to the period of three years from the date on which that cause of action accrued:”

Section 17 relates to application for leave. In so far as it is relevant to this case it provides:

17(2) Where such 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 or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient –

(a) to establish that cause of action, apart from any defence under subsection (1) of section 4; and

(b) to fulfil the requirements of subsection (3) and section 16 in relation to that cause of action.

(emphasis mine)

Application of law to facts

It is agreed by both parties that the proposed action is outside the limitation period. The plaintiff applies for extension of time under the Act but it is opposed by the defendants who say that ‘they will be prejudiced if the action is allowed to be instituted.’

Evidently, it was since the birth of the plaintiff’s first child on 19 October 1977 that she started complaining of overdose of ‘stilbestrol’ tablets and at that time, according to the plaintiff, Dr. Mary Schramm now retired, advised that it was overdose and that she would feel the side effects of the overdose in twenty years time if the plaintiff happened to live that long. According to affidavit evidence and submissions the plaintiff suffered the side effects and complications in December 1977 in the form of “ulcer”and “cellulitis” and these led to forced retirement on medical grounds on 12 March 2001.

When did the cause of action arise? According to plaintiff’s assertion the time limit for instituting proceeding would have expired on 19 October 1980 . This would be 22 years out of time. The plaintiff has further stated that she was aware of the side-effects of ‘stilbestrol’ in 1977 but only experienced its severe effects in 1997.

As required under s4(1) of the Act, this action which is a claim for ‘medical negligence’ should have been instituted (though not necessarily served) within three years from the date the cause of action arose. In this case, according to my understanding of the facts, the complaint was made by the plaintiff on 19 October 1977 and the three-year period would have expired on 19 October 1980.

The issue before the Court has to be determined in the light of the facts and the law on the subject of limitation of period within which to bring an action.

In view of the provisions of the Act and in the light of the authorities, the plaintiff I hold cannot hope to succeed in her application for disapplying s4(1) of the Act.

I had occasion to deal with a similar application as in this case in Surya Deo Sharma s/o Uma Shankar and 1. Jovesa Sabolalevu 2. The Attorney-General in and for Fiji 3. National Insurance Company of Fiji Limited (Civil Action No. 539 of 1994). There I had referred to a number of authorities bearing on the subject of extension of time. I found that the Plaintiff’s claim, as writ had already issued, was statute-barred and I dismissed the application. The plaintiff appealed to Court of Appeal, Fiji (Civil Appeal No. ABU0043 of 1995S). The Appeal Court upheld my decision and dismissed the appeal with costs. There the Appeal Court dealt with the interpretation of the relevant statutory provisions referred to hereabove by me.

On ‘knowledge’ under s17(3) the Fiji Court of Appeal in Permal s/o Veliappan and Krishna Sami and Loranini Tinai Saweta (Civil Appeal No. 19/85 at 5) stated that the ingredient required to be met was that the plaintiff:

“... had no knowledge, before instituting the action that the matters constituting her cause of action had occurred on a date which would afford a defence to the action namely a date more than 3 years before commencing the action”.

Further on ‘knowledge’, the meaning that should be ascribed to it is in my view as stated by Lymington M.R. in Halford v Brookers (1991) 1 W.L.R. 428 at 443:

“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.’”

Also, as stated by Court of Appeal in Surya Deo Sharma (supra):

In respect of 17(3) a court can grant leave only if the uncontradicted evidence establishes the cause of action relied on, and the requirements of s16(3) are fulfilled. The final ingredient of s17(3) is not easy to understand. It means that the appellant must show that, when he commenced the action on 11 November 1994, it was outside his actual or constructive knowledge that the matters constituting the cause of action had occurred more than three years before the action was commenced. All of the three elements of s17(3) must be established.

Further on s16(3) the Court of Appeal said:

It is apparent from these provisions that the crucial issue is the actual and constructive knowledge of the plaintiff under s16(3). The appellant must show that the material facts relating to the cause of action including those of a decisive character were outside his actual or constructive knowledge until either after the 3 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.

The meanings of the expressions ‘material facts relating to a cause of action’ and ‘facts of a decisive character’ referred to in s16(3) have been defined in sections 19 and 20 respectively of the Act.

The Court said that the ‘three elements of s17(3), including the requirements of s16(3), must be fulfilled before the court can grant leave’. It goes on to say:

That emerges from s 17(3) providing that the court may grant leave “if but only if” the requirements of the subsection are fulfilled. If these requirements are not fulfilled, the court lacks jurisdiction to grant leave. No question of discretion arises.

On the granting of leave and the exercise of discretion the Court said as follows:

If the requirements are fulfilled the court “may” grant leave, that is the court then has a discretion. In exercising that discretion the court will have regard to such matters as the cause or reason for the delay, and whether, and if so to what extent, the defendant may have been prejudiced in his defence by the delay. Further the court can then consider whether, having regard to all the circumstances, it is just to grant leave.

Although the Appeal Court has stated the requirements that have to be fulfilled under s16(3) and s17(3) it has made certain strong observations on how ‘complex and difficult to understand’ these provisions of s16 and 17 are when it said and I concur:

The provisions of s16 and s17 are in our view, unnecessarily complex and difficult to understand. Indeed they can fairly be described as convoluted. This is an undesirable feature of legislation that can affect the lives of ordinary citizens. It is our recommendation that the authorities give active consideration to the re-enactment of these provisions in a form that is simple, clear and easy to understand. A useful model is the provisions in the Limitation Act 1980 (UK), which fulfil these requirements, and which replaced the provisions of the 1963 UK Act, which were in terms substantially the same as those in the Fiji Act.

It is quite clear from the affidavit evidence that the plaintiff knew the suffering she was going through or ought to have known the nature and extent of her ‘injuries’ so to say shortly after the birth of her first child in 1977. She even had her second and third child but she did not complain or take action. Her knowledge was well within the three-year period and was earlier than 12 months before the expiry of that period. In these circumstances it cannot be said that the plaintiff fulfilled the requirements of s16(3) in respect of her ‘injuries’.

I find that the plaintiff had knowledge actual or constructive of facts of a ‘decisive character’ well before the expiry of the 3 year period and earlier than 12 months before the end of that period.

Conclusion

To sum up, on the affidavit evidence before me and on the authorities the plaintiff cannot hope to succeed in her application for leave to extend time to institute proceedings for ‘personal injuries’.

The said s16(3) does not help the plaintiff. In Goodchild v Greatness Timber Co. Ltd [1968] 2 All E.R. 255 at 257 Lord Denning explains how the said section is to be applied and I consider it apt for the purposes of this application. He said:

“Take all the facts known to the Plaintiff or which he ought reasonably to have ascertained within the first 3 years about the accident and his injuries. Assume that he was a reasonable man and took such advice as he ought reasonably to have taken within those 3 years. If such reasonable man in his place would have thought he had a reasonable prospect of winning an action and that the damages recoverable would be sufficiently high to justify the bringing of an action – in short, if he had a “worthwhile action” – then he ought to have brought the action within the first 3 years. If he failed to bring an action within those 3 years, he is barred by the statute. His time will not be extended under the Limitation Act 1963 simply because he finds out more about the accident or because his injuries turn out to be worse than he thought. His time will only be extended if a reasonable man in his place would not have realised, within the first 2 or 3 years that he had a “worthwhile action”. Then, if it should turn out after the first 2 or 3 years that he finds out facts which make it worthwhile to bring an action, he must start it within 12 months after he finds out those facts. Then, and then only, will the time limit be extended so that he is not barred.” (emphasis mine)

The said section 16(3) uses the terms “material facts”, “facts of a decisive character” and “outside the knowledge”. I have already stated what meaning is to be given to the word “knowledge”. These terms are defined in the Act in sections 19 (meaning of “material facts relating to the cause of action”), 20 (meaning of “facts of a decisive character” ) and 21 (meaning of “when facts will be taken as outside the knowledge of a person”). I find that on the facts none of the requirements of the said s16(3) have been fulfilled to enable the Plaintiff to claim an order granting the application under the provisions of that subsection.

Under a somewhat similar provision to our own said sections of the Act, in Begg v Kruber Enterprises (Division Besser Qld Limited) Ltd (1990) 2 Qd R 301 the Full Court of Supreme Court of Queensland, in allowing the appeal against the extension of the limitation period dealt with the meaning and effect of the abovementioned terms. What was discussed there are relevant for the purposes of the issue before me and I therefore quote hereunder from Commonwealth Law Bulletin January 1992 p.59 and adopt them in this case:

“The Full Court of the Supreme Court of Queensland, in allowing the appeal, held that –

1. it was the facts constituting the negligence rather than the legal consequences of those facts which must be unknown to an applicant for an extension of time and the facts were within this applicant’s knowledge at all material times; and
   
2. before September 1985 the respondent knew, or would have known if he had appropriate advice, that he had a permanent disability of his spine and the estimate of the Board was not a material fact.”
   

In considering this application I have noted the following statements of Deane J in Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 C.L.R. 234 at 250:

“The legislative policy underlying the sections is plain enough. It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until more than twelve months before the commencement of proceedings”.

Also, the following passage from the judgment of Macrossan J (as he then was) in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, at 333 is apt:

“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 251 per Deane J.”

On the facts before me none of the above requirements of the Act and the principles involved have been fulfilled to enable the plaintiff to succeed in her application.

In the outcome, for these reasons, I find that the plaintiff is well out of time in intending to commence an action when she was well aware of the nature and extent of her personal injury ever since the birth of her first child on 19 October 1977 and subsequently after the birth of her third child on 10 April 1992. I agree with counsel that the defendants will be greatly prejudiced if leave was granted in the circumstances of this case after such a long delay.

Before parting with this case, it is unfortunate that in the present state of provisions of the Limitation Act I have to refuse the application either because action is not commenced within the limitation period due to either ignorance of the law or financial difficulties. I echo the comments of the Court of Appeal in Sharma (supra) as well as those of Scott J in Shereen Wahidun Nisha f/n Rasul Khan and Tucker Group (Fiji) Limited (Civil Action No. 585/98) suggesting the need for ‘reform’ of the relevant provisions of the Act. Some of the sections I would say should be framed in simple language capable of being understood by a layman.

Accordingly, the plaintiff’s proposed claim is statute-barred and I dismiss the application with costs in the sum of $250.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
4 July 2003