Chand v Permanent Secretary for Health [2004] FJHC 421; HBC0102.2004L (2 June 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0102 OF 2004L

BETWEEN:

ASHOK CHAND
s/o Ram Sharan
Plaintiff

AND:

PERMANENT SECRETARY FOR HEALTH
1st Defendant

AND:

THE MINISTRY FOR HEALTH
2nd Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
3rd Defendant

Counsel for the Plaintiff: Mr. S. K. Ram
Counsel for the Defendants: Ms. S. Tabaiwalu

Date of Hearing & Judgment: 2 June 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of Ex-parte Notice of Motion, which first came before the court on 14 April 2004. That Motion seeks on behalf of the plaintiff an extension of time to commence proceedings against the defendant pursuant to the provisions of the Limitation Act and Compensation to Relatives Act.

The Notice of Motion was supported by an affidavit of Anju Mala sworn on 7 April 2004 and further affidavit of Ashok Chand sworn on 1^st March 2004.

When the matter came before the court on 14 April 2004 notwithstanding the provisions of section 16 of the Limitation Act, I directed that the plaintiff serve the Notice of Motion and supporting affidavits to facilitate the matter being dealt with on an inter-partes basis. Those orders were complied with and the matter came before the court for hearing today with the defendants being represented.

The application is opposed.

The Writ of Summons sought to be filed seeks to plead that the plaintiff is the husband of the deceased, Sashi Shobna Lata, and that the plaintiff brings the action for the benefit of the dependents of the deceased under the Compensation to Relatives Act and for the benefit of the deceased’s estate under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act and also the plaintiff brings the action in his personal capacity for mental, distress and nervous shock suffered as a result of the death of the deceased.

The deceased died on or about 29 December 2000, apparently whilst a patient at the Ba Mission Hospital.

Without attempting to set out all of the provisions of the Limitation Act (Cap. 35), it could seem that the most relevant provisions to the application are contained in sections 17 and 19.

The plaintiff submits it relies upon the provisions of section 19(b) of the Act, which provides and I quote:-

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

(a) ................

(b) The nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty.”

It is submitted on behalf of the plaintiff, that the psychiatric report annexed to the affidavit of Anju Mala, was not available until about the date is bears being the 26 January 2004 whereas the limitation period had expired on 29 December 2003.

The plaintiff further submits that until such time as the report was available, the plaintiff did not have the material facts being the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty.

The plaintiff has referred the court to determinations of the Fiji Court of Appeal, firstly in Sharma v Sabolalevu [1999] 45 FLR 204 and also Cakau v Habib [1999] 45 FLR 117 and finally, the Fiji High Court Nisha v Tucker Group (Fiji) Ltd [1999] 45 FLR 54.

In Nisha v Tucker Group, Mr. Justice Scott, in considering the relevant authorities made reference to Goodchild v Greatness Timber Co. Ltd [1968] 2 All E.R. 255 where Lord Denning said at page 257 when dealing with similar provisions in the English legislation:-

“His time will only be extended if a reasonable man in his place would not have realized, within the first 2 or 3 years that he had a “worthwhile action”.”

The application is opposed and in opposition, the defendants refer the court to the decision of the Fiji Court of Appeal in Fiji Electricity Authority and Attorney General of Fiji v Miriama Ganilau – ABU0050 of 1997S where the Court of Appeal considered Halford v Brookes [1991] 1 WLR 428 and there considered the meaning or more correctly the contextual meaning of “knowledge” and said that knowledge relevantly does not mean know for certain and beyond possibility of contradiction.

The defendant relies on this in support of its opposition on the basis that the plaintiff knew who the defendants were within the limitation period.

I am of the opinion that Fiji Electricity Authority and Attorney General of Fiji v Miriama Ganilau relies very much on its own facts and there the Court of Appeal was dealing with the issue of the defendant rather than the issue of the cause of action and the Court of Appeal held that it was somewhat obvious as to who the defendant was within the limitation period. As I said, it is my understanding, that the knowledge required relates not only to the defendant but also to the cause of action. That I think is borne out by the provisions contained in sections 17 and 19 of the Act.

On the basis of the evidence for the plaintiff, it is apparent that the plaintiff was not aware of the cause of action personal to the plaintiff until receipt of the psychiatric report on or about 26^th of January 2004. In the circumstances therefore, I am of the opinion that the plaintiff is entitled to the order sought and accordingly I make orders in the terms of paragraph 1 of the Notice of Motion and I further order that the costs of the application be costs in the cause.

JOHN CONNORS
JUDGE

AT LAUTOKA
2 JUNE 2004