Naidu v Formscaff (Fiji) Ltd [2010] FJHC 223; HBC341.2008 (30 June 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 341 of 2008

BETWEEN:

RAJESH NAIDU
Plaintiff

AND:

FORMSCAFF [FIJI] LIMITED
1ST Defendant

AMBE CONSTRUCTION LIMITED
2ND Defendant

Counsel: Neel Shivam Lawyers for the Plaintiff
Patel Sharma Lawyers for the Defendants.

Date of judgment: 30th June 2010

RULING

This is a summons by the plaintiff seeking an order for interim payment and a summary judgment against the defendants. The plaintiff is seeking damages from the defendant for injuries he had sustained in the course of his employment.

The plaintiff claims that the injuries were caused by the defendant’s negligence by breach of duty of care. The application was made pursuant to Order 29 Rules 10 (1), Rule 2 (a) and order 14 of the High Court Rules 1988.

Plaintiff’s application was supported by two affidavits.

Background of the Case.

In his affidavit dated 3.3.2010 the plaintiff has explained how he got injured during the employment.

According to the plaintiff, on the day of incident he was employed with the 2nd defendant as a labourer at a Housing Authority Building site in Valelevu. The second defendant’s company was engaged to carry out refurbishment works at the Housing Authority building in Valelevu. The plaintiff was assigned the task of time keeping for fellow workers.

The first defendant’s workers were dismantling a scaffold which was erected on the site.

When the plaintiff was attending to his duties he was hit by a falling angle iron and received severe head injuries. The plaintiff claims that due to his head injuries he suffers from left sided hemiplegia and his mobility is severely restricted.

According to the medical report marked as RN 2 the plaintiff has a 51% permanent incapacity as a result of his injuries.

Plaintiff claims that prior to the said accident he earned $101-20. But after the accident he was paid $67 per week, being payment of 2/3 wages and it was also stopped on 2/4/2010.

Therefore the plaintiff claims that he has no any source of income at present.
The plaintiff has been advised to continue with physiotherapy weekly and according to him it has become a costly exercise.

The plaintiff claims that his mobility is severely restricted due to injuries and he is unable to work.

The plaintiff’s counsel in her submissions pointed up following facts.

The plaintiff’s substantive claim is damages for injuries sustained during the employment and defendants are insured in respect of plaintiff’s claim.

Highlighting the principles related to summary judgments, she further submitted that the court is empowered to make an interim payment at any time. It was also submitted that even if the summary judgment is not granted still the court can grant an interim payment.

At the hearing of the plaintiff’s summons the defendant’s counsel laid great stress on the Order 29 r 10.

He submitted that the plaintiff’s claim in the affidavit lacks the verification of evidence. Further, by referring to Para 18, 19, and 20 of the plaintiff’s affidavit he submitted that the plaintiff had failed to comply with O 29 r 10 (3) (a) and (b).

He further submitted that the since Para 4(a) of the affidavit is a matter of law and it shall require to be heard fully by the court.

Referring to the Para 25, 30 and 33 of the affidavit of the plaintiff, following facts were pointed up by the counsel for the defence.

Whether the plaintiff has a substantial claim is a matter to be decided; after taking evidence of both parties:

The insurance company also has a right to be fully heard and the court shall not make any difference between the insurance company and the defendants:

The doctors who treated the plaintiff are to be cross examined;

The court has to consider the plaintiff’s ability to make a repayment in the event of giving the judgment in favour of the defendant.

In reply to the submissions made by the defendant’s counsel, the plaintiff’s counsel citing some authorities submitted that the standard of proof of summary judgment and interim judgment are similar.

Regarding the medical condition of the plaintiff she submitted that the defendants have not taken steps to get the plaintiff examined by their doctors.

Further, she stated that the Para: 3 of the defendant’s document marked as RN- A1 confirmed the incident and no contributory negligence of the plaintiff were pleaded therein.

Relevant Legal Principles

The principles governing the granting of summary judgments are well settled and are clearly stated as follows in Dummer v. Brown [1953]1QB 710.

"Actions for damages for negligence are suitable for procedure under O 14 only if it is clearly established that there is no defence as to liability."

The following authorities would also provide some useful guidelines with regard to the above issue.

As a general principle, where a defendant shows that he has a fair case of defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Saw v. Hakim (1889) 5TLR 72.

Leave to defend must be given unless it is clear that there is no real substantial question to be tried. Codd v.Delap (1905) 92 L.T.510, HL

A complete defence need not be shown. The defence setup need only show that there is a triabal issue or question or that for some other reason there ought to be a trial; and leave to defend ought to be given unless there is clearly no defence in law such as could have been raised on the former demurrer to the plea and no possibility of a real defence on the question of fact. Jacob v. Booths Distillery Co. (1901) 85 L.T.262

Where there is a fair probability of a defence unconditional leave to defend ought to be given. Ward v. Plumbley (1890) 6 T.L.R.198

It some times happen that the defendant may not be able to pin point any precise issue or question in dispute which ought to be tried, nevertheless it is apparent that for some other reason there ought to be a trial. Manger v. Cash (188) 5 T.L.R 27

The following are the conditions precedent for the plaintiff employing the summary process of O 14.

a. The defendant must have given notice of intention to defend.

b. The statement of claim must have been served on the defendant;

c. The affidavit in support of the application must comply with the requirement of O.14 r.2 ie:

1. An application must be supported by an affidavit verifying the facts on which the claim or part of the claim is based, and stating that in the deponent belief there is no defence.

2. An affidavit must contain statement of information or belief with the sources and grounds thereof.

3. The summons and a copy of affidavit, and any exhibits referred to therein must be served on the defendant not less than 10 clear days before the return day.

4. In the light of above legal principles and the submissions made by the counsels I consider the documentary evidence produced by both parties.

The plaintiff in his affidavit has very clearly stated how he got injured while attending the duty.

The facts that the plaintiff was employed by the 2nd defendant and the 1st defendant’s workers were carrying out the dismantling of the scaffolds were not in dispute.

Although the 2nd defendant admits that the plaintiff sustained injuries on the day of incident the defendants deny the liability and also deny the extent and nature of the plaintiff’s incapacity.

The defendants in their statement of defence have pleaded the contributory negligence on the part of the plaintiff. In the statement of defence it was further stated that the plaintiff was assigned to remove the scaffolding and he had acted carelessly and without due regard for his own safety.
However, there is no evidence before the court to indicate that the injuries were caused due to the plaintiff’s negligence.

The Managing Director of the 2nd defendant company Sugrim Prasad in his affidavit in reply did not even state the plaintiff’s involvement in removing scaffoldings.

Having regard to the above facts I decide that the defendants have failed to produce any substantial evidence to establish the plaintiff’s contributory negligence.

Another argument advanced by the defendant’s counsel opposing the plaintiff’s request for an interim payment is that the plaintiff’s inability to repay if the judgment is given in favour of the defendants.

Nevertheless, considering the strength of the evidence of both parties I decide that the question of repayment will not arise because there is no even a remote possibility of granting a judgment in favour of the defendants.

The next issue to be considered is whether the defendants have raised any substantial question of fact which warrants a trial.

The medical reports tendered by the plaintiff marked as RN2 clearly establish that he suffers from permanent incapacity and unable to perform activities of day to day life without help.

The Medical Report dated 25th April 2008 issued by Dr A Murai also indicates that the plaintiff’s recovery from the present condition cannot be predicted.

However, the present medical condition of the plaintiff has not been assessed by the defendants yet.

The requirements to be satisfied in order to obtain a summary judgment are enunciated as follows in S. v. Gloucestershire county council [2000] 3 All ER 346.

For an application for summary judgment to succeed where a strike out application would not, the court first needs to be satisfied that all substantial relevant facts which are reasonably capable of being before the court are before it, that those facts are undisputed or that there is no real prospect of successfully disputing them and that there is no real prospect of oral evidence affecting the court’s assessment of the facts .

The plaintiff’s current disability and the likelihood of recovery are very relevant facts to this case.

Although the medical reports tendered by the plaintiff show his present medical condition, in order to assess the possibility of plaintiff’s recovery in future and the extent of his disability I am of the view that an expert medical witness should be examined in the trial. Therefore in my view this is not the most appropriate stage to grant a summary judgment in favour of the plaintiff.

Nevertheless, the evidence before me undoubtedly establishes that the plaintiff has lost his earning capacity due to the alleged accident and is in desperate need for financial assistance.

In deciding the issue of interim payment I would like to highlight the following passage from British And Commonwealth Holdings Plc. V. Quadrex Holdings Inc.[1989]Q.B 843.

That before the court could make an order for an interim payment of damages to the plaintiff under Order 29, it had to be satisfied that the plaintiff would obtain judgment for substantial damages; that where unconditional leave to defend had been granted a court could not be so satisfied and an order for an interim payment was impossible; but that, where a court had only granted conditional leave to defend in circumstances where it doubted the genuineness of the defence, it could be satisfied that the plaintiff would succeed at the trial; that the court was satisfied that the plaintiff would succeed in obtaining substantial damages at the trial; and that, therefore, taking into account the resources of the defendant, the court would grant leave to defend on condition that the defendant made an interim payment of $5m to the plaintiff.

In Ricci Burns Ltd v Toole and another [1989] 3 All E R 478 the Court of Appeal held that:

The distinction between proof to the high standard on balance of probabilities required to sustain an application for interim payment and the standard required for the summary judgment was a fine one, but that there was a conceptual difference between the two standards. A reasonable doubt as to the possibility of success of the defendant on some issue of fact raised on the affidavit evidence had to preclude summary judgment against him, because the doubt could not be resolved in summary proceedings. It was still open to the Court, however, to decide on the same evidence that, for the purposes for an order for interim payment, it was satisfied that the plaintiff would succeed against the defendant at trial, and hence that an interim payment was justified.

Under Order 29 r.11 (1) the court may make an order for interim payment if any of the following requirements are satisfied by the plaintiff:

(a) that the defendant against whom the order is sought has admitted liability for the plaintiff’s damages; or

(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or

(c) that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any one of them.

Under Order 29 .r.11 (2) in an action for personnel injuries an order for interim payment will only be made if, in addition to the court being satisfied of the existence of the above requirements, the court is satisfied that the defendant is either;

(a) A person who is 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 payments.

In this case the defendants have not admitted the liability in respect of the plaintiff’s claim for damages. The plaintiff has not obtained a judgment against the defendants. The defendants are also not a public authority and they are insured in respect of the plaintiff’s claim.

Therefore in deciding the issue of an interim payment in the present case the court has to consider following factors only.

1. Whether the plaintiff would obtain judgment for substantial damages,

2. Whether the defendant is a person whose means and resources are such as to enable him to make the interim payment.

One of the arguments advanced by the defendants’ counsel was that the plaintiff failed to verify the sum claimed and thereby failed to comply with O.29.r.10.3 (a) & (b).

In an application for an interim payment, the main issue to be considered is whether the court can satisfy that the plaintiff would finally succeed against the defendant in the substantive action which was based on common law of negligence and the Workmen’s Compensation Act.

Although the plaintiff has not produced any documentary evidence to verify the amounts claimed in Para: 18 to 21 the medical reports marked as RN 2 clearly establish the plaintiff’s present medical condition. Therefore it is obvious that the plaintiff is in desperate need of some financial assistance since he has lost his earning capacity due to the alleged accident.

In Stringman (a minor) v. Mcardle [1994] 1 W.L.R 1653 the English Court of Appeal held, that a plaintiff was not required to demonstrate any particular need beyond the general need to be paid his damages as soon as reasonably possible, and the court should not, when considering to order such a payment, investigate how the money was to be used.

The above judgment was quoted by Mr. Justice John Byrne in The A.G of Fiji and Ministry of Health v. Loraini Dre [ Civil Appeal No. ABU 022 of 2009] where he explicated the two basic principles involved in granting an interim payment as follows:

1. Unless there are exceptional reasons for not doing, where it reasonable to award an interim payment of damages the courts will make such an award.

2. There is no requirement for a plaintiff to show need or hardship before an order for interim payment can be made by a Court.

The annexure RN-A1 produced with the plaintiff’s affidavit in reply confirms the fact that the 1st defendant was dismantling the scaffolds when the plaintiff was working on the ground level. It further states that the plaintiff was hit on the head by a falling iron.

Hence it is obvious on a balance of probabilities that the plaintiff did suffer personal injury by accident occurred during the course of his employment with the defendants. Further, it appears that the plaintiff’s claim against the defendants for negligence and breach of duty of care would be successful at the trial.

Therefore on the available evidence, the court is sufficiently satisfied that if the action proceeded to trial the plaintiff would obtain substantial damages against the defendants.

The defendants are limited liability companies and therefore have sufficient means to make the interim payment.

For these reasons I am satisfied that the applicant should receive the interim payment pleaded in the summons.

Accordingly the defendants are ordered to pay the sum of $10000.00 as interim payment to the plaintiff within 21 days of the delivery of this ruling.

Costs for the application are summarily assessed at $ 300.00.

Pradeep Hettiarachchi
JUDGE

At Suva
30th June 2010