Naisoro v Senikarawa [2005] FJHC 630; HBC0011.2003 (29 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0011 OF 2003

BETWEEN:

NAOMI NAISORO
PLAINTIFF

AND:

MANASA SENIKARAWA
APTAR SINGH
TOWER INSURANCE
NATIONAL INSURANCE COMPANY OF FIJI
DEFENDANTS

Mr S. Krishna [o/i Eroni Veretawatini Lawyers] for the Plaintiff
Mr K. Kumar [o/i A.K. Lawyers] for the Defendant

Date of Hearing: 03 June 2005
Date of Ruling: 29 July 2005

RULING OF FINNIGAN J

This is the Defendants’ application to strike out the Plaintiff’s action. It was originally filed in Suva and early on the Defendants filed the present summons to strike it out on the ground that it was outside its limitation period.

The matter has been kept fully alive by the parties and the Plaintiff was represented on 3 June when I timetabled 21 days for her Counsel to file submissions in reply to those already filed by the Defendants. That period expired 24 June 2005 and no submissions have been filed till now.

The Defendants have pleaded, as they must, their limitation defence. Their point seems unanswerable and the Plaintiff seems to have conceded it. Section 4 [1] proviso [i] is authority for holding that this action being a personal injury action for negligence had to be brought within 3 years of the alleged negligence. The pleaded negligence occurred on 9 December 1999. The action should have been commenced on or before 8 December 2002. The writ was issued on 8 January 2003.

The Plaintiff sues in her own name and does not plead any disability which would extend the period under Section 11 of the Act.

Part D of the act makes special provisions for extension of the time limits in actions for personal injuries, but the Plaintiff has taken no advantage of this provisions. She could have sought leave before or after filing the action but has not. The Defendants’ application is unanswerable and it will be granted.

However there is more. In support of the application the Defendants filed an affidavit by one Sanil Kumar who claims to have been told that insurance investigators were told that the Plaintiff was born on 5 November 1998 and thus is a minor. The deponent also had been told that the investigator had been told that the Plaintiff was a third form student, had been admitted to hospital and had been discharged on 12 January 2000 with such injuries to her right leg and ankle that she was at that time not able to walk. The deponent had been told that the investigator had seen the scars which the Plaintiff had on her leg. The deponent also [quite properly] annexed copies some documents obtained by the investigator which may be more helpful to the Plaintiff than to the Defendants. The Defendants make the point that the Plaintiff is indeed under a disability pursuant to Order 80 Rule 1 HCR.

The whole action on behalf of the Plaintiff has been very badly handled from the start, So far if it has achieved nothing, no progress has been made in 2 ½ years. If she has paid any fees they should be refunded to her in full. The Court is required to take special care for minors, and so are lawyers who take up cases on their behalf. The Defendants’ costs in this application will be paid by her lawyers.

On the Defendants’ application this action is struck out. I assess Defendants’ costs summarily at $500.00 and direct these be paid by the solicitors who first filed the action and the solicitors who replaced them but took no action. They will be jointly and severally liable.

The Plaintiff should note she may commence a fresh action.

I agree with the Defendants that the Insurance Company should not have been joined as a Defendant and would have struck them out in any event.

D.D. Finnigan
JUDGE

At Lautoka
29 July 2005.