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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Case No. HBC 121/2008
BETWEEN:
SAROJINI DEVI
father’s name Lalita Prasad of Sabeto, Nadi, Businesswoman.
Plaintiff
AND:
VISHWA NADAN
father’s name Sitaiya of Qeleloa, Nadi
Defendant
Before: Master Anare Tuilevuka
Counsels: Plaintiff In Person
: Messrs Gordon & Company for the Defendant
Date of Hearing: 12th May, 2010
Date of Ruling: 01st June, 2010
RULING
BACKGROUND
[1] On the 29th August 2007, the plaintiff ("Devi") suffered injuries as a result of a road accident along the Queens Road at Wairabetia near Lautoka. Her personal injuries claim is pending at the Lautoka High Court.
[2] Before me now is Devi’s application for interim payment in the sum of $105,150.00. The application is supported by an affidavit of Devi sworn on 14th December 2009. In it, she outlines her version of the events leading to the accident. As to be expected, Devi blames the defendant for the accident. She deposes that:
"That the defendant was charged with the offence of careless driving and subsequently paid a fine of $100.00 (A copy of Police report confirming of the same is annexed hereto and marked as Exhibit 3)"
[3] According to Devi, the defendant had crossed over to her side of the road and collided with her vehicle "head on". She annexes to her affidavit a letter by the Traffic Officer, Lautoka Police Station dated 22nd January 2008 which states inter alia that:
"....driver of DY 575 was charged for careless driving. Both vehicles sustained damages. The driver of DY 575 has paid a fine of $100.00 at Post Fiji Shop on 18/09/07 vide receipt no: W1002010 13007 and the case has been filed". The time of the accident 2 passengers were in each car. The driver of BV 717 received injuries at the neck and at the back and she was treated at Lautoka Hospital and sent home"
[4] Devi believes she has a good cause of action against the defendant who she says has been charged and convicted of "dangerous driving". However, there is no documentary evidence annexed to her affidavit to support this.
[5] Devi adds that her local doctors are not able to properly diagnose the injuries she has suffered and have recommended that she goes abroad for treatment. She annexes a copy each of two medical reports that were written for her: the first dated 17th December 2008 and the second dated 19th August 2009 – both by Doctor Joeli Mareko. The latter is reproduced in full below. The former is consistent with the latter:
TO WHOM IT MAY CONCERN
RE: SAROJINI DEVI f/n LALTA PRASAD
The above patient was involved in an accident and she could not walk straight.
She was crouched forward and pain on the left side of hip and lower abdomen.
INVESTIGATIONS
Radiological x-ray revealed no bony injuries and abdomen scan – reported normal.
TREATMENT
It is 2 years since injury she has not walked upright. Her toe extensor on the left is weak.
She needs to have proper assessment in a specialist spinal unit with proper investigations tools. This would be available abroad.
She needs to be seen by Specialist Spinal Surgeon and where MRI and CT scan is available.
I recommend that she be seen by a Special Spinal Surgeon abroad.
[6] Devi deposes that her daughter is having to look after her on a full time basis. She says she faces extreme hardship in doing ordinary things like going to the lavatory, eating her meals and in bathing. She is in constant pain and has to be attended to by her daughter.
[7] Devi annexes a sheet of paper on which is typed the following:
| Estimate of Costs | |
| $2,000 |
| $2,100 |
| $100,000. |
| $1,050 |
[8] The document appears to have been prepared by Devi herself. It is not signed by anyone, nor is there a name written on it. There is no document from any hospital abroad to confirm the estimated cost of treatment. Nor is there evidence that some sort of tentative arrangement has been made with any hospital abroad regarding Devi’s proposed referral.
[9] Devi also deposes that she used to operate a business under the style and name of Sheena Cleaning Chemical & Shopping Centre. She says that she has not operated the business since the date of the accident. She annexes a faint uncertified copy of a Certificate of Registration of Business Name which appears to bear out that such a business name was in fact registered.
[10] There is no evidence before me that the defendant was ever convicted in a court of law in relation to any charge laid against him as a result of the motor vehicle accident. Nor is there evidence before me that any court of competent jurisdiction has ever found that the accident happened due to the defendant’s careless driving.
[11] Mr. Gordon submits that a proper trial on the merits is needed before the Court can decide if the accident was caused by the defendant’s careless driving. Further, he submits that the medical reports do not specifically state or conclude that Devi’s current medical condition is "caused by" or "due to" the accident which is the subject matter of Devi’s claim. Furthermore, the medical report states that the plaintiff requires "proper investigators" and as such is totally inconclusive as they only say that further investigation is required.
LAW
[12] An interim payment is an advance payment on account of any damages which a defendant may be held liable to pay. Under Order 29 rule 10 (1), the plaintiff may seek interim payment "at any time after the writ has been served on a defendant and the time limited for him to acknowledge service has expired".
[13] Order 29 Rule 11 (1) (in its relevant part) provides that an order for interim payment in respect of damages may be made if the Court is satisfied of either of the following:
- (a) that the defendant has admitted liability for the plaintiff’s damages, or
- (b) that the plaintiff has obtained judgment against the defendant for damages to be assessed; or
- (c) that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the defendant
[14] In a personal injury case, an order for interim payment will only be made if, in addition to the Court being satisfied of the existence of any of the above (see paragraph 13 (a) to (c)), the Court is satisfied that the defendant is either:
- (a) insured in respect of the plaintiff’s claim;
- (b) a public authority; or
- (c) a person whose means and resources are such as to enable him to make the interim payment.
(see Order 29, Rule 11 (2))
ISSUES
[15] In this case, the defendant has not admitted liability in respect of the Devi’s damages. Nor has Devi obtained judgment against the defendant for damages to be assessed. The defendant is also clearly not a public authority.
[16] Hence, the only issues for me to consider are, whether:
- (i) if the action proceeded to trial, Devi would obtain judgment for substantial damages against the defendant, and
- (ii) the defendant is insured in respect of Devi’s claim.
- (iii) the defendant is a person whose means and resources are such as to enable him to make an interim payment.
[17] I will discuss the above issues in reverse order starting with (iii), then (ii) and finally (i).
WHETHER THE DEFENDANT IS A PERSON WHOSE MEANS AND RESOURCES ARE SUCH AS TO ENABLE HIM TO MAKE AN INTERIM PAYMENT?
[18] Mr. Gordon states at paragraph 32 of his submissions that the defendant is a chef at ATS and is relying on his insurers to defend him. He does not have the means and the resources to satisfy an interim-liability payment. That evidence should have been deposed in an affidavit.
WHETHER THE DEFENDANT IS INSURED IN RESPECT OF THE PLAINTIFF’S CLAIM?
[19] Who is a person "insured in respect of a plaintiff’s claim"? That question may seem superfluous but there is a point to it. In England, an order for interim payment has been held to be possible against a defendant motorist whose insurer would be liable to the plaintiff under the English Road Traffic Act 1988 applying the same Order 29 Rule 11(2) (see O’Driscoll v Sleigh (1984) Court of Appeal (Civil Division) Transcript No 510 of 1984; [1985] 6 CL Unreported Cases No. 7).
[20] In contrast, in Powney v Coxage [1988] The Times, 8 March - it was held that no interim payment could be made against the driver or the insurer in proceedings where, if judgment was obtained, it was likely to be enforced against the insurer. Powney was concerned with the issue of whether an uninsured driver could be treated as "insured in respect of a plaintiff’s claim" if any judgment against the driver would nonetheless be satisfied by the English MIB[1]. The Court held that such a driver was not "insured in respect of a plaintiff’s claim" and therefore, an interim payment could not be ordered. This case has been held to be unsatisfactory even in England because of its narrow construction of the English equivalent of Order 29 Rule 11(2).
WHETHER, IF THE ACTION WERE TO PROCEED TO TRIAL, THE PLAINTIFF WOULD OBTAIN JUDGMENT FOR SUBSTANTIAL DAMAGES AGAINST THE DEFENDANT?
[21] The question is: to what measure must Devi prove the strength of her case to obtain an order for interim payment?
[22] Firstly, in the Supreme Court Practice 1988 Volume 1 at page 495 (White Book), the learned authors expound as follows on the evidence that must be adduced in an application for interim payment in a personal injury claim:
(f) Affidavit in support – personal injury actions –
(i) ......... (not relevant)
(ii) The medical reports should be exhibited
(iii) ......... (not relevant)
(iv) The special damages and past and future loss of earnings should be set out in detail;
(v) It should be explained why the plaintiff needs an interim payment and details should be given of any special needs and hardship.
[23] The test to be applied was canvassed by Master Udit in Raj v Prasad (2008) FJHC 358.
(d) That in order for the court to be satisfied that the plaintiff would obtain a judgment:
"something more that a prima-facie case is clearly required; but not proof beyond reasonable doubt. The burden is high. But it is a civil burden on balance of probabilities, not a criminal burden; see Shearson Lehman [1987] WLR480, 489a per Liyod L.J.""
(e) "That at the second stage the court, if satisfied that the plaintiff would recover a substantial sum, may then proceed, if it thinks fit, to order interim payment "of such amount as it thinks just". Any such payment must not exceed ‘a reasonable proportion of the damages which in the opinion of the are likely to be recovered...’. In addition under the rules the payment must take account of any ‘set-off, cross-claim or counterclaim’
[24] In Raj v Prasad, Master Udit after reviewing various authorities, stated the test as follows:
The Court must be satisfied that the Plaintiff has a realistic prospect and not merely a likelihood of succeeding. In meeting the test the court is required to evaluate the merits or otherwise of the respective parties case.
[25] Applying the above test, it is hard to reach the conclusion that Devi has a realistic prospect of success on the scanty evidence she has put before me. My reasons follow.
[26] The police report annexed to Devi’s affidavit has little evidentiary value in respect of the $100 it alleges the defendant has paid. In addition, there is no concrete evidence before me as to how the accident happened. All I have is Devi’s version of the events.
[27] The related police traffic docket may contain material to support her version (e.g. rough sketch plan, fair sketch plan, key to fair sketch plan, the location of the point of impact and the position of the two vehicles at the accident site, any skid mark on the road surface, statements of the two drivers, statement of any eye witness etc) but these are not before me in evidence. A supporting affidavit of the traffic officer(s) who investigated the accident attaching all these documents would be ideal.
[28] Secondly, even if there was evidence that Devi would obtain judgment if the action were to proceed to trial, I agree with Mr. Gordon that the medical reports are all wishy washy at this stage.
[29] Dr. Mareko’s medical reports seem to suggest that they have found nothing wrong with Devi, but further assessment is required as she has not walked up right and claims to be in pain since the accident. That, coupled with the fact that there is no evidence that Devi has been communicating with any hospital abroad, does not leave a good impression on her case.
[30] The document that Devi annexes to her affidavit which shows various figures including the cost of her treatment overseas appears to be a thinly disguised attempt to dupe the Court. There is no evidence before me from any hospital abroad as to what procedure will be performed on her, let alone any justification of the costs.
[31] The uncertified copy of the registration of business name that Devi attaches to her affidavit does nothing to prove the plaintiff’s special damages let alone past and future loss of earnings. Mr. Gordon submits that Devi has thus not shown any evidence of loss of business or proper special damages or amounts upon which the Court could make a finding for quantum even if liability could be entertained.
[32] Mr. Gordon also submits that any payment made now would most likely would not be recoverable from the plaintiff.
CONCLUSION
[33] I refuse to make an Order for Interim payment on the scanty evidence before me. Notwithstanding my refusal to grant the Orders sought, under Order 29 Rule 10 (5), it is still open to Devi to make a second or subsequent application upon cause shown.
[34] Costs is reserved. Case adjourned to 15th June 2010 for mention before me.
Anare Tuilevuka
MASTER
At Lautoka
02nd June 2010.
[1] See discussion of this case in Robert Merkin, Jeremy Stuart-Smith, 2004: The Law of Motor Insurance.
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