Cama v CKP Fishing Company Ltd [2004] FJHC 349; HBC0205D.2003S (24 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0205D OF 2003S

BETWEEN:

JOSAIA CAMA
of Namakula Village,
Lami, Fiji, unemployed.
PLAINTIFF

AND:

CKP FISHING COMPANY LIMITED
a duly incorporated company having
its registered office at Suva, Fiji.
DEFENDANT

Counsel for the Plaintiff: G. O’Driscoll, O’Driscoll & Shivam
Counsel for the Defendant: V. Maharaj, Maharaj Chandra & Assoc.

Date of Decision: 24 February, 2004
Time of Decision: 9.30 a.m.

DECISION

On 24 May 2003 the Plaintiff filed an ex-parte Motion seeking leave of the Court to enlarge the time limit of 3 years as provided under the Limitation Act (Cap 35), to allow him to file his Writ against the Defendant. The Court on 30 May ordered that the proceedings be made inter parte and the documents duly served on the Defendant on 4 June 2003. Leave was granted to the Defendant to file affidavit in reply on 13 June and the Plaintiff responded on 29 July. Submissions were subsequently filed by the parties.

The facts of the case are as follows. The Plaintiff was employed aboard a fishing vessel “Oryong 332” belonging to or under the authority of the Defendant. Part of his duties included working in the freezer of the boat moving and/or packing and storage of fish on the high seas, before reaching port. On 14 December 1999, while working in the freezer of the boat, the Plaintiff suffered thermal injuries (commonly known as frost bites) to all his fingers. According to the Plaintiff, no suitable equipment such as insulated or thermal gloves were provided by the Defendant during his work in the freezer. Subsequently, the Plaintiff was examined on 20 December 2003 at the hospital. Medical examination revealed the Plaintiff suffering from extensive frost bite injuries to all his fingers and on 27 December, the two phalanges on each of his eight fingers were amputated. The Plaintiff was 21 years old at the time of the accident. At the very least the loss of two phalanges of all eight fingers would place the Plaintiff at 64 percentage of incapacity.

In March/April 2000, a Notice was filed under the Workmen’s Compensation Act (Cap 94) with the Ministry of Labour. Since then, according to his supporting affidavit, the Plaintiff had not received any progress report from the Ministry. He added, that it was only in May 2003 that, upon the assistance of the Legal Aid Commission office, he sought the advise of his solicitors, who have now filed the present action.

The Application of the Limitation Act (Cap 35)

Section 4(1)(d)(I) of the Limitation Act (the Act) states that actions for damages for negligence nuisance or breach of duty, including damages in respect of personal injuries shall not be brought after the expiration of three years from the date on which the cause of action accrued. Both parties agree that in this case, the cause of action accrued when the accident occurred on 14 December 1999, resulting in the Plaintiff’s injuries. Equally the parties agree that the time of action by the Plaintiff ended on 14 December 2002.

There exists nevertheless, situations where a Court may exercise its discretion in favour of the Plaintiff outside the legal time frame under s.4(1).

The principles governing the exercise of the Court’s discretion, if at all, in granting leave for the Plaintiff to bring an application after the expiration of three years, was examined in details, by the Fiji Court of Appeal in Surya Deo Sharma v. Jovesa Sabolalev & Or. (1999) Vol. 45 FLR 204, and followed by Shameem J. in Hasina Bibi v. Atish Narayan & Or. CA 636 of 1998. The Court, after discussing the inter-relationship of the relevant provisions of the Act and specifically sections 16, 17, 19 and 20, held that before a Court can exercise its jurisdiction to grant leave, it must first be satisfied that the requirements of section 16(3) and as well as the three (3) elements required under section 17(3) are met.

Section 16(1) and (3) the Act provide as follows:

“16 - (1) The provision of subsection (1) of section 4 shall not afford any defence to an action to which this section applies, insofar as the action relates to any cause of action in respect of which –

(a) the Court has, whether before or after the commencement of the action, granted leave for the purpose of this action; and

(b) the requirements of subsection (3) are fulfilled.

(2) ....

(3) The requirements of this subsection shall be fulfilled in relation to a cause of action if it 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.”

(emphasis added)

Section 17 deals with the application for leave. Subsection (3) states:

“(3) Where such an application is made after the commencement of a relevant action, the Court may grant leave in respect of any cause of action to which the application relates if, on evidence adduced by or on behalf of the Plaintiff, it appears to the Court that, if the 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) of section 16 in relation to that cause of action,

and it also appears to the Court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the Plaintiff that the matters constituting the cause of action has occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 4.”

What essentially section 16(3) says is that the Plaintiff must show that –

(i) the material facts relating to the cause of action; including

(ii) facts of a decisive character,

were outside his actual or constructive knowledge until after the three year period or not earlier than 12 months before it.

What constitutes “material facts relating to a cause of action” is defined in section 19 of the Act and the meaning of ”facts of a decisive character” is detailed under section 20.

For the Plaintiff to succeed he must show that he was not aware until after the 3 year period had expired, the full extent of his injuries and that such injuries was the direct result of negligence and/or breach of duty of the Defendant and that the negligence and breach of duty was actionable. But even if he was, the question then becomes whether the Plaintiff was afforded the opportunity to obtain advise of competent persons (defined under section 22 of the Act) that would have given him, as a reasonable person, a chance to properly assess his prospect of success in the bringing of the action.

In addition the Plaintiff’s application has to meet the 3 requirements under section 17(3), namely that evidence establishing the cause of action is established, that the requirements of section 16(3) have been fulfilled, and finally that when he commenced his action on 26 May 2003, he was not aware that his cause of action had accrued more than 3 years ago.

The Plaintiff, in his affidavit, says that following the accident of 14 December 1999 and his subsequent hospitalisation resulting in the loss of his fingers, a Notice in accordance with section 14 of the Workmen’s Compensation Act, was filed with the Chief Executive Officer of the Ministry of Labour by the employer/defendant. The Notice was dated 13 April 2000. It was filed late. The requirement of section 14 is that the Notice be given not later than fourteen days after the accident. The consequence for failure to comply is set out at S.14(3), but more important, insofar as the limitation of time for application under the Act, is the provision of section 13(b) of the same.

The Notice under section 14 of the Workmen’s Compensation Act, does not necessarily impute knowledge to the Plaintiff that is essential for the purpose of section 17(3) of the Limitation Act. The report of the injury to the Chief Executive is made by the employer, the Defendant in this case, not the Plaintiff. It cannot even be presumed, given the education level and background of the Plaintiff, that he was deemed to have constructive knowledge of any cause of action, after he became aware of the filing of the Notice by his employer.

The position is different somewhat upon the application by the Ministry of Labour on behalf of the Plaintiff for compensation. Civil Action No. 5 of 2001 instituted in the Magistrate’s Court by the Ministry of Labour represented the Plaintiff’s application for compensation for injuries he sustained in the accident, the subject of the employer’s Notice to the Chief Executive under section 14. In this instance, the Plaintiff would have been aware of the action being taken by the Ministry of Labour, including the Magistrate’s Court proceedings, on his behalf. The specific details required to be filed into Court by the Ministry as set out in the First Schedule of the Act, could not have been done without the personal knowledge and participation of the Plaintiff. There can be little doubt that the Plaintiff had at this time of the filing of his Claim, the knowledge that the accident constituted a cause of action against the Defendant.

Whether however, the Plaintiff was in a position to appreciate that there was a time limit set by law in which he was to prosecute his claim seems to this Court very doubtful indeed. He had understood only that the matter was in the hands of the Ministry of Labour. It could be said that he relied completely on the Ministry’s officials advise and action. That his claim in the Magistrate’s Court failed to proceed for non-availability of witnesses is not something within his competence or control. Regrettably the fact that the Plaintiff may not have known the existence of the law limiting time to prosecute, does not change the combined effects of sections 16 and 17 of the Act.

The Plaintiff’s claim in Civil Action No. 5 of 2001, was struck out on 6^th December 2001. However, according to the Plaintiff’s evidence no information of the progress or otherwise of the case had been conveyed to him by the official of the Ministry. Certainly the Ministry of Labour should have informed him of the fate of the Magistrates’ Court action. At the very least, the Plaintiff should have had the opportunity to pursue other options that were then available to him.

I share the concern raised by Shameem J in Hasina Bibi v. Atish Narayan (supra) on the unjust and seemingly harsh effects the provisions of sections 16(3) and 17(3) of the Limitation Act, have on the lives of ordinary citizens who are economically disadvantaged and/or are illiterate. Ready access to competent and appropriate advise means invariably, having the financial means to secure it. The Fiji Court of Appeal in Surya Deo Sharma case, has already pleaded with the authorities to make simple the “convoluted” provisions of sections 16 and 17. This together with the special circumstances referred to by Shameem J, and again patently obvious from the facts of this case, would go a long way to helping the disadvantaged and as well as giving justice to all.

At the end the Plaintiff finds himself in an invidious position, of being denied the right to legitimately seek appropriate redress by a conspiracy of legal inexactness coupled with the Ministry of Labour’s inadequacy. There however, still does not appear to be any reason why the Plaintiff should not pursue his Claim under the Workmen’s Compensation Act to the Chief Executive of the Ministry of Labour, for reasons I have explained above.

The application is dismissed. I award costs of $200.00 to the Defendant.

F. Jitoko
JUDGE

At Suva
24 February, 2004