Siliwale v Minister of Health [2007] FJHC 146; HC HBC220.2007 (4 March 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 220 OF 2007

BETWEEN:

MARIKA SILIWALE
through his next best friend KILIONI SENIVUTU
of Matanisau, Waimanu, Student
Plaintiff

AND:

THE HON. MINISTER OF HEALTH
ATTORNEY-GENERAL OF FIJI
THE MEDICAL SUPRITENDANT
Defendants

Before: Master Udit

Counsel: Mr. R. Chand for the Plaintiff
Ms. Karan for the Defendants

Date of Hearing: 1^ST October, 2007
Date of Decision: 4^th March, 2007

DECISION

Introduction

[1] By a Summons filed on 23^rd May, 2007 the Plaintiff seeks an order that leave be granted to the plaintiff to commence an action as pleaded in the proposed writ of summons to claim damages for personal injuries for medical negligence against the defendants outside the limitation period prescribed by S.4 of the Limitation Act (Cap 17). The summons is supported by an affidavit of Ilioni Senuvutu who is also the next best friend of the minor plaintiff.

The facts

[2] The background leading to this application is that Marika Siliwale (hereinafter referred to as the minor) experienced severe pain in the right upper leg in on or about 24^th August, 2001. He was taken to Vunidawa Hospital, where he was admitted for 3 days. Thereafter he was transferred to CWM Hospital, where he underwent a surgery to his right femur on 3 successive occasions as follows:-

(a) First operation conducted on 29^th August, 2001.

(b) Second operation conducted on 7^th September, 2001.

(c) Third operation conducted on 11^th October, 2001.

[3] Subsequently, he was discharged without the wound being healed. According to the deponent of the affidavit there was a smelly watery discharge coming from the wound even after being discharged from the Hospital on 6^th November, 2001. The minor was readmitted on 19^th December, 2001 where he again underwent some treatment. The treatment had little to no effect. He was discharged on 14^th December, 2001 with an advise given that nothing much could be done medically and "only almighty God can help". I emphasise the date, which was 14^th December, 2001 when the doctors gave up any hope for further treatment.

[4] Thereafter the child was left in the care of his parents. According to the supporting affidavit, the parents prayed but the Almighty could not help. In fact on 12^th August, 2004 the minors parents noticed 2 pieces of bones emerging from the wound of the minors swollen leg. Once the bones projected out the wound was healed up totally. I repeat that the bones had emerged from the wound of the child's swollen leg which was an abnormality noticed on 12^th August, 2004. The parents thereafter continued to notice the growth of the child. What they noticed over a period of time was that the right hip bone was projecting out which resulted in the shortening of his right leg. He was walking with a limp on his right side.

[5] In paragraph 14 of the affidavit, the next best friend indeed admits that as late as 12^th August, 2004 the family including himself had first come to realise that the child had suffered or continues to suffer due to the alleged negligence on the part of the doctors. They as experts failed to detect, diagnose or treat the minor. The family realised the main cause of all the pain and suffering for a good three years were the two pieces of bones that projected out resulting from the initial surgery. In the next paragraph the parents then had firm conviction that the child's present condition was totally attributed to the negligence of the hospital staff who attended to the minor when he was admitted and/or as a result of the surgeries which were conducted on him. From 21^st August, 2004 the plaintiff did absolutely nothing to inquire as to the position of instituting a legal action. It was not until 12^th September, 2006, that is a lapse of over 2 years they sought legal advice. They were given legal advice and told to make an application to High Court to institute an action out of the normal limitation period. Mr. Chand on behalf of the Plaintiff argued that the minor has a good and valid claim. In addition, if leave is granted there will be no prejudice caused to the defendant.

[6] On the other hand, Ms Karan who appeared on behalf of the defendants vigorously opposed the granting of any such leave. The first limb of her submission is that the plaintiff is already outside the provisions of the Limitation Act as such this application ought to be dismissed summarily. Secondly, she argues that even if the application is within the time frame of the Limitation Act, it lacks any merit as such it ought to be dismissed. Thirdly, she argues that in the event if the Court was minded to extend the time, than a factor that I should consider is the ensuing prejudice to the defendants directly related to the time that has lapsed. One of the prejudices alleged is that the respective medical staff who had attended to the patients have migrated or are no longer in the Public Service. Accordingly gathering evidence for the purpose of the trial would be impossible. From the outset I intimated to Ms. Karan that the plaintiff in this case is a minor for whom the limitation period is deferred by the statute until he attains the majority age. In other words even if the minor loses out on this application now, he still has an opportunity to bring a fresh action upon attaining the majority age. Indeed he will then be entitled as of right to commence an action by virtue of S.11 of the Limitation Act.

Consideration of the Issues

[7] As directed both the counsel filed very helpful written submissions. They also appeared before me to make oral submissions.

[8] This application is appropriately filed before the issuing a writ of summons or commencing the action proper consistent with a decision of Court of Appeal in Permal & Anor. -v- Noranini Tinaisoweta Court of Appeal Civil Appeal No. 19/1985. At page 7 of the cyclo styled judgment, their Lordships said that "....generally speaking it can be stated that in virtually all cases leave should be sought before issuing a writ".

[9] There is no dispute that this is a personal injury suit. It is trite Law that no action for damages for personal injury can be brought after the expiration of three years from the date on which the cause of action accrued: S.4(1). This is an action founded on medical negligence. Both the counsels agreed that the limitation period for the cause of action is three years. The material facts of this case are that the plaintiff first visited the Hospital on 29th August, 2001 and was last discharged on 24^th December, 2001. It was on this latter date that the doctors had lost all hope and left it to the Almighty Lord.

[10] For the purposes of this application I will treat 24^th December, 2001 being the date on which the cause of action accrued. By saying, that I do not disregard 29^th August, 2001 on which date possibly the purported cause of action crystallised. One of the causes of action pleaded by the plaintiff is that the doctors failed to diagnose the sickness of the minor. The later date is chosen so as it does not in any way adversely affect or prejudice the plaintiff. It only extends the time from 29^th August, 2001. Therefore the last date on which the writ of summons should have been filed was 24^th December, 2001. It never eventuated. Accordingly, the present application is outside the limitation period.

[11] Next, I must consider the provision of the Limitation Act. S.16(1) provides that... "S.4 shall not afford any defence to an action to which S.16 applies in so far 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 leave for the purposes of this Section;

(b) The requirement of Subsection 3 are fulfilled".

[12] Obviously the court has not granted any leave as such para (a) above does not come into operation. Accordingly, I am required than to consider S.16(3) of the Limitation Act, which states:-

"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."

[13] S.16(4) provides that for the purposes of Subsection 3, reference to three year period in relation to a cause of action means a reference to the period of three years from the date on which the cause of action accrued. That implies the plaintiff must prove that the "material facts relating to that cause of action were or included facts of a decisive character were all outside the knowledge until a date it either was after the end of three years period", which is 24^th December, 2004 relating to that cause of action, or was not earlier than twelve months or the end of that period. In other words the plaintiff should have had all the requisite knowledge either at the end of 24^th December, 2004 and/or on 24^th December, 2003. In any event the date is not to be earlier than twelve months before the date the action was brought.

[14] An application for leave to file an action outside the limitation period is provided for under S.17 of the Limitation Act. Since this application is filed prior to the commencement of the action, the relevant provision is S.17(2). It provides:-

(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 -

[15] In the application the plaintiff must establish the following:-

(a) A cause of action.

(b) That the requirements of S.16(3) in relation to that cause of action is fulfilled. Under S.17(2) the court can only grant leave if the un-contradicted evidence establishes the cause of action relied on and the requirement of subsection 16(3) are fulfilled.

[16] Prudence would have required the parents to "embark on the preliminaries of the writ" to borrow the words of the Master of Rolls His Lordship Mr Justice Lymington. Plaintiff should have considered taking the necessary legal and medical advice and to collate evidence. Once those facts, which I will characterise being the material facts, became known to the parents, they should have taken all necessary steps to commence the action. If after taking all the necessary steps they were unable to cultivate a cause of action, obviously, then only until 12^th of August, 2004, the material facts may be taken to be outside the knowledge of the parents or next friend.

[17] The facts obviously lead to the invocation of S.22(1)(c) of the Act. Appropriate advice should have been taken at least with effect from 14^th of December, 2001. Appropriate advice is defined in S.22 of the Act as follows:-

"In sections 20 and 21 "appropriate advice" in relation to any fact or circumstances, means the advice of competent persons qualified, in their respective spheres, to advise on the medical, legal or other aspects of the fact or those circumstances, as the case maybe".

[18] The difficult question of knowledge under S.17(3) of the Act was considered by the Court of Appeal in Permal -v- Krishna Sara (Supra) at page 5 of the judgment as follows:-

"... 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".

[19] Lymington M.R. in Halford -v- Brookers [1991] 1 WLR 428 at 483 attributed knowledge to be:-

"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."

(emphasis added)

[20] Let me consider the causes of action as prayed for in the statement of claim. Principally they are failure to diagnose and treat. From the evidence placed before me, it was certainly made clear on 14^th December, 2004 when the doctors stated that "nothing much could be done medically and only Almighty God can help". The doctors failed to diagnose the sickness, nor were able to treat the minor, as on his discharge the wound was still unhealed.

[21] For the purposes of S.16, S.19 defines "material facts" relating to a cause of action as follows:-

Meaning of "material facts relating to a cause of action"

19. 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) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

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

(c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.

[22) The "facts of a decisive character" under S.20 of the Act means:-

"20. For the purposes of section 16 and 18, any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character. If they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 22 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that, apart from any defence under subsection (1) of section 4, an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action."

[23] S.21 of the Act, which is also relevant to this case provides the following circumstances in which it may be ".... taken to have been outside the knowledge, actual or constructive, of a person if, but only if,

(a) he did not then know that fact;

(b) in so far as that fact was capable of being ascertained by him, he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and

(c) in so far as there existed, and were known to him, circumstances from which with appropriate advice within the meaning of section 22 that fact might have been ascertained or inferred, he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice as aforesaid with respect to those circumstances".

[24] Is it the appropriate treatment? There is no evidence to that effect. In order for the court to exercise the discretion, the plaintiff must establish a cause of action; S.17(2)(a). In my view mere statement of a bundle of the particulars of negligence in cases of professional negligence is not sufficient. At least an opinion of an expert verifying the causes of action if not absolutely necessary, but will assist. That being the case, I hold that the plaintiff has failed to establish a cause of action.

[25] For the benefit of the plaintiff, in the event, I may be held to be wrong in my opinion as to the cause of action, I will consider the second limb of S.17(2)(b). This requires me to consider the ingredients of S.16(3) of the Act. S.16(3) provides:-

(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.

[26] Further, liability for negligence depends upon proof, the onus of which rests on the plaintiff on civil standard of proof. Even though it is rather late in the day, the plaintiff ought to have sought an opinion of an expert as to the alleged negligence. The best evidence before me is that of the deponent of the affidavit, who is a farmer, presumably having little to no knowledge of the plaintiff's illness.

[27] One of the particulars of negligence is failure to diagnose. Was the plaintiff's alleged sickness capable of been diagnosed by a reasonable medical practitioner at the material time? Yet another claim is failing to provide proper support by way of affixing a rod as a support for the upper right leg?

[28] The first thing which I am required to consider is whether the plaintiff is able to establish a cause of action. A proposed writ of summons marked as exhibit "A" is annexed to the affidavit of Kilioni Senivutu. It is a claim in negligence against the doctors, specialists, servants and agents of the hospitals the minor was treated. Negligence is also failure to operate with due care and treat the plaintiff. Particulars of negligence are contained in paragraph 24 of the proposed writ of summons:

[29] Ms. Karan did not suggest in her submissions that there was possibly no cause of action against the hospital. There is no expert opinion of a doctor exhibited to the affidavit which would verify the particulars of negligence. This is a claim for medical negligence. McNair J, in Bolam -v- Friern Hospital Management Committee [1957] 1 WLR 582 held the test far professional negligence of a doctor as follows:-

"... The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man may not posses - the highest expert skill; it is well established that it is sufficient if he exercise the ordinary"

[30] In my view, the plaintiff is caught by S.16(3)(a). One of the essential ingredients is that the medical facts must not be known within 2 years of the accruing of the cause of action. I have already held that the alleged cause of action accrued on 14^th December, 2001. Three years would have lapsed on 13^th December, 2004.

[31] However, if I were to take the date of 12^th August, 2004, as submitted by Mr. Chand, being the date on which the parents acquired the material facts, it still does not assist the plaintiff. In fact, in paragraph 14 of the affidavit, the applicant makes it abundantly plain that on that date, "....the family first came to know that my child had been suffering during all this time because of the negligence on the part of the doctors". This action is filed on 23^rd of May, 2007.

[32] S.16(3)(b), requires the material facts relating to the cause of action were at all times outside the knowledge of the plaintiff a date (12/8/2004) which is a date not earlier than 12 months before the application was brought (22/5/2007). Obviously, 12/8/2004, is almost 33 months (as opposed to the 12 months). In Surya Deo Sharma -v- Jovesa Salolevu & Attorney-General [1999]45 FLR 204, their Lordship said:

"First, it is apparent that the three elements of s 17(3), including the requirements of s16(3), must be fulfilled before the court can grant leave. That emerges from s17(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.

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".

[33] Regrettably, the plaintiff has failed to fulfil the requirements. Accordingly there is nothing for me to exercise my discretion.

Conclusion

[34] The application is dismissed with costs summarily assessed at $200-00.

Accordingly so, ordered

J.J. Udit
Master