Lala v Narayan [2011] FJHC 675; HBC186.2011 (24 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 186 of 2011

BETWEEN:

RINDRA LALA aka Rindar Lal aka Rind Lal (f/n Shri Pal) of Lot 28 Nasilivata Road, Nadera, Nasinu, Retired.
PLAINTIFF

AND:

AMAR NARAYAN (f/n Narayan Sami) of Kuku Nausori, Self Employed.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Nadan S. of Reddy & Nadan for the Plaintiff
Ex parte summons for extension of time

Date of Hearing: 19th August, 2011
Date of Ruling: 24th October, 2011.

RULING

1. INTRODUCTION
   

1. The Plaintiff is seeking extension of time to file the writ of summons since the time period for filing in terms of the Limitation Act has expired. The Plaintiff has filed an affidavit in support and there he claims that he suffered severe injuries and the delay was due to the negotiations with the insurance company which ultimately refused his claim and inadvertence of the Plaintiff. The Plaintiff's alleged 'severe injury' but it is not described in the affidavit in support of this application, he does not state how long he was hospitalized or in which hospital that he obtained treatment and no history of any treatment was filed or alleged in the affidavit in support, the only alleged 'medical report' produced is a one that was obtained on 20th May, 2011 nearly one month before the institution of this action and even that 'report' is incomplete as the signature at the end of the 'report' do not provide the name and or designation and or qualification of the person who is making that alleged 'report', which was issued more than three years after the incident, without reference to any previous medical history or of any records that links the present status of the Plaintiff to the motor accident. There is no reference to any medical history or other diagnosis or x rays or other treatment or any prescription referred in that report and cannot be relied upon to satisfy the requirements contained in Section 17(2) of Limitation Act which clearly required the party seeking extension to adduce evidence establishing a cause of action. At the same time there is no satisfaction of the requirements contained in Section16 (3), which required the Plaintiff to prove that facts of a decisive character were at all times outside his knowledge. In order to obtain leave for extension of time for personal injury action the Plaintiff has to satisfy above two factors and the Plaintiff has failed both on evidence adduced and the leave should be refused. It is also noted that without considering the above provisions of law on ex parte application, earlier the Plaintiff was granted an extension of time to file the writ, but the Plaintiff failed to file the writ within the extended time, to take advantage of that extension and that extension has expired and as at today there is no valid order for extension. So the plaintiff cannot rely on that expired order as it has failed to comply with it and it has expired. In any event Cozens v North Devon Hospital Management Committee [1966] 2 All E.R. 276, Lord Denning said at page 373, 'It must be remembered that, even when the judge grants leave, there is nothing final about it. It is merely provisional.' So, the provisional leave granted was not exercised within the time period stipulated and again seeking extension of time with an addition of another party.
   

2. LAW ON EXTENTION OF TIME IN PERSONAL INJURY
   

2. Part III-D of the Limitation Act refers to special provisions applicable to actions in respect of personal injuries, and Sections 16 -23 deals with the extension of time. The extension of time has to be sought from the court and court is required to follow the established principles in law on extension of writ and certain requirements has to be fulfilled by the Plaintiff, in order to grant the extension.
   
3. It is clear that section 16 and 17 has to be red together and state as follows.
   

"D – SPECIALPROVISIONS APPLICABLE TO CERTAIN ACTIONS IN RESPECT OF PERSONAL INJURIES

Extension of time limit for actions in respect of personal injuries

16.-(1) the provisions of subsection (1) of section 4 shall not afford any defence to an action to which this section 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, granted leave for the purposes of this section; and

(b) the requirements of subsection (3) are fulfilled.

(2) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(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.

(4) For the purposes of subsection (3), reference to the three-year period relating to a cause of action means a reference to the period of three years from the date on which that cause of action accrued:

Provided that-

(a) in relation to any cause of action in respect of which, by virtue of section 11, an action could have been brought after the end of the period of three years from the date on which that cause of action accrued, any such reference to the three-year period relating to that cause of action shall be construed as a reference to the period up to the end of which an action could, by virtue of that section, have been brought in respect thereof;

(b) in relation to a cause of action in respect of which, by virtue of section 15, the period of limitation did not begin to run until a date after the cause of action accrued, any such reference to the three-year period relating to that cause of action shall be construed as a reference to the period of three years from the date on which, by virtue of that section, the period of limitation began to run.

(5) Nothing in this section shall be construed as excluding or otherwise affecting-

(a) any defence which, in any action to which this section applies, may be available by virtue of any provisions of any Act other than those contained in subsection (1) of section 4 (whether it is an Act imposing a period of limitation or not) or by virtue of any rule of law or equity; or

(b) the operation of any Act or of any rule of law or equity which, apart from this section would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.

17.-(1) Any application for the leave of the court for the purposes of section 16 shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications which are made after the commencement of a relevant action.

(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-

(a) To establish that cause of action, apart from any defence under subsection (1) of section 4; and

(b) To fulfill the requirements of subsection (3) of section 16 in relation to that cause of action.

(3) Where such an application is made after the commencement of a 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 the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) To establish that cause of action, apart from any defence under subsection (1) of section 4; and

(b) To fulfill the requirements of subsection (3) of section 16 in relations to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 4.

(4) In this section, "relevant action", in relation to an application for the leave of the court, means any action in connection with which the leave sought by the application is required." (emphasis is added)

4. The fulfillment of the requirements is two prone in terms of Section 16(3) and Section 17(2). The method of application is described in Section17 (1) and fulfillment of Section 17(2) is required where the provisions contained in Section 16(3) was mentioned. Section 16 of the Limitation act also refers to Section 11. It is also noted that the Plaintiff has failed to indicate the relevant law in the summons seeking leave for extension of time and if the Plaintiff is suffering from a disability the applicable provision is contained in Section 11 of the Limitation Act which states as follows
   

'A-DISABILITY

Extension of limitation period in case of disability

11.-(1) If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom such right accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired:

Provided that-

(a) This section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims;

(b) when a right of action which has accrued to a person under a disability accrued, on the death of that person while still under a disability, to another person under disability, no further extension of time shall be allowed by reason of the disability of the second person;

(c) no action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiration of thirty years from the date on which the right of action accrued to that person or some person through whom he claims;

(d) this section shall not apply to any action to recover a penalty or forfeiture, or sum by way thereof, by virtue of any Act, except where the action is brought by an aggrieved party.

(2) In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person and in the case of actions to which section 6 applies-

(a) Subsection (1) shall have effect as if for the words "six years" there were substituted-

(i) As regards any action to which section 6 applies, the words "two years";

(ii) As regards any other action to which this subsection refers, the words "three years"; and

(b) This section shall not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action, or (as regards an action to which section 6 applies) the right to recover contribution, accrued to him, in the custody of a parent,

(3) For the purposes of this section, a person shall be deemed to be under a disability while he is an infant or of unsound mind, and, without prejudice to the generality of the foregoing provisions of this subsection, a person shall be conclusively presumed to be of unsound mind while he is detained in pursuance of any Act authorizing the detention of persons of unsound mind, including persons convicted of offences or awaiting trial, or while he is receiving treatment voluntarily under the provisions of the Mental Treatment Act.(Cap. 113)"

5. In this case from the affidavit in support and other supporting evidence adduced, the Plaintiff is not seeking extension due to disability and firstly, on the evidence adduced by or behalf of the plaintiff it should be sufficient to establish a cause of action in terms of Section 17(2) (a) and secondly he has to fulfill the requirements in terms of 16(3) by proof of material facts were outside the knowledge of the Plaintiff. This method of analysis was adopted in the case of Devi v Tarai [1998] FJHC 84 (29 June 1998) where it held as;
   

'Also under section 17 of the Act a Court has the discretion to grant leave in respect of a cause of action to which the application relates is, firstly, the evidence adduced on behalf of the applicant is sufficient to establish a cause of action and secondly, matter constituting the cause of action were outside the applicant's knowledge (actual or constructive) when the action commenced.'

6. After establishing a cause of action by adducing evidence, the Plaintiff has to establish that '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 that is stipulated in Section 16 (3) (a) and (b).
   
7. The interpretation of the words 'material facts relating to a cause of action' is contained in Section 19 of the Limitation Act and the interpretation is an exclusive interpretation and not an inclusive one since it has used the word 'means' as opposed to 'includes' where other similar circumstances can be included. So only the instances given in the interpretation can be considered in the interpretation since the word 'means' was used. It states 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.'

100. ANALYSIS
     

8. It is clear that Plaintiff's reason for the delay cannot be included in any of the above instances contained in either any disability contained in Section 11 or Section 19(a), (b) or (c). In the affidavit in support the Plaintiff states the reason for the delay was an inadvertence on his part which is clearly cannot be included in the above provisions of the law relating to the extension of time. It has to be understood that there is no general discretion granted to the court, except the express provisions contained in the Limitation Act as mentioned above in this ruling and development of the provisions by case law. Cozens v North Devon Hospital Management Committee[1966] 2 All E.R. 276, Lord Denning again said at page 373"It must be remembered that, even when the judge grants leave, there is nothing final about it. It is merely provisional." and in this case the provisional extension which was granted on an earlier ex parte application and it was not complied with and again the Plaintiff is seeking extension of limitation. The leave granted earlier is not final and even that has not been complied with and the said order has expired and there is no order to be extended in the said leave which was granted on an ex parte summons.
   
9. Inadvertence cannot be a ground for extension of writ as provided in the Limitation Act. Section 17(2), it also state that extension can be granted only if on evidence adduced by the Plaintiff is sufficient for the establishment of cause of action against the Defendant, but there is no evidence before me to establish a cause of action against the Defendant .
   
10. The Plaintiff in his affidavit in support state that he was severely injured in the said motor accident, but falls short of explaining that in his affidavit evidence. The requirements under the section 17(2) are that some evidence should be adduced by the Plaintiff and the only way is by way of an affidavit supported with or without documentary proof. The allegations in the statement of claim is not sufficient, and cannot be considered as 'evidence adduced' as the section 17(2) of the Limitation Act, clearly requires, and state 'evidence adduced' needs to be considered for the fulfillment of said provision. The only way evidence could be adduced at this stage is through an affidavit of the injured party describing the alleged injuries. The Plaintiff has not described his injuries and has failed to mention whether he was hospitalized or if so for how long. The Plaintiff has failed to mention anything on treatment from the alleged 'severe injury' in his affidavit and has also failed to file any documents relating to such proof. The alleged medical report was obtained in 2011 and nearly one month before the institution of this action. The said medical report in number 17 under 'Any disability physically' which has to be answered either affirmative or negative has answered it in both, negative as well as positive indicating that there is no physical disability and also answered it in positive indicting some disability, which is clearly impossible. This shows the irresponsible behavior of the person who made this 'report'. There is no name and or designation and or qualification of the person who made this 'medical report' leaving this to be speculated in the trial as well as in the preparation of any defence if extension is granted. This is exactly what was prevented in the Section 17(2) of the Limitation Act. The extension will be granted only to genuine claims and that is the reason that Section 17 requires the Plaintiff to adduce evidence to establish a cause of action even before the commencement of the action, at the time seeking an extension of limitation. So, it is clear that a person whose limitation time has expired, has to fulfill additional requirements in order to obtain an extension, clearly the intension of the legislature was to exclude any frivolous claims after the expiration of limitation, so that there is certainty and end to all claims against party. Such a provision will clearly preclude any bogus claims and any afterthoughts being utilized to claim money from a defendant after the limitation time has lapsed which would even amount to abuse of process. Extension of time for filing the writ in personal injuries are granted in limited circumstance and the case law on this issue is well settled in Fiji.
    
11. In the Fiji Court of Appeal in Fiji Electric Authority v Ganilau [1999] FJC 34 it was held that the provision contain in the Section 16-21 of the limitation Act are 'convoluted' and referred to the case of Halford v Brooker (1991) WLR 428 at 443 and stated as follows
    

'As pointed out in Halford v Brooker (1991) 1WLR 428 at 443, "knowledge" in this context does not mean 'know for certain and beyond possibility of contradiction'. The circumstances of their unfortunate accident were straight forward and obvious. Liability prima facie rested with whoever was responsible for erection and maintenance of the stay wire and with the occupier of the property, or both. A simple inquiry at any time could have ascertained that they were respectively the Electricity Authority and Public works Department. This appears to be a classical example of 'res ipsa loquitur' and were satisfied that the action could have been commence well before expiry of the limitation period. There was no basis for extending the time,......'

12. In that case death resulted from a live wire in a premises where official quarters were located and the Plaintiff could not obtain the statutory report of the Electricity Authority with regard to the incident in order to find out the liability of the parties, but the Fiji Court of Appeal held that such report was not necessary to file an action for damages though clearly there was an issue of liability as regard to identification of the parties. In this case the High Court decision that allowed the extension was overturned.
    
13. In the case Devi v Tarai [1998] FJHC 84(29 June 1998) it was held before the Fiji Court of Appeal in Fiji Electric Authority v Ganilau [1999] FJC 34 and in any event the facts of that case can be easily distinguishable from the present one before me. In Devi v Tarai the Plaintiff has sought legal advice in time, but due to a fault of the solicitor the Plaintiff was unable to institute the action in time it was held
    

'In the above situation it is apparent this was not the plaintiff's fault that the time to institute her claim has expired. Actually she did her best to have an action instituted as soon as possible but he circumstances of the case were such that she could not avoid the delay in doing so.

If anyone is responsible for the delay it is the Hospital which did not give the plaintiff's medical report in time and also Messrs H. M. Patel & Co who knowing that the claim has to be brought within 3 years did not ensure that the medical report was received in time.'

14. So, this can be clearly distinguishable from the case before me and it has to be considered in the light of the Court of Appeal decision of Fiji Electric Authority v Ganilau [1999] FJC 34 which is authoritative on this issue of extension of time in terms of Section 16 and 17 of the Limitation Act.
    
15. Cakau v Habib [1999]FJHC 54;[1999] 45 FLR 117(18 June 1999) again can be easily distinguished as in that case the Plaintiff's arm was amputated due to the accident while she was a minor as a passenger in a bus and the requirements under Section 17(2)(a) of Limitation Act was fulfilled and the court in that case held that Section 16(3) was also fulfilled where again held that
    

'Needless to say I cannot accepter that despite her father doing everything that reasonably could be expected to be done, the Plaintiff is, nevertheless, to be denied leave because of the fault of failings of her solicitor, to institute proceedings within the limitation period.'

16. The above quote again shows that the delay was not due to the fault of the Plaintiff, as opposed to the clear admittance of inadvertence on the part of the Plaintiff in this case.
17. In the said case of Cakau v Habib [1999]FJHC 54;[1999] 45 FLR 117(18 June 1999) Justice Fatiaki held that
    

'In any even as was emphasized by Vaugham Williams L.J in Thomson v Lord Cln,rris [1900] 1 Ch. D. 718 at p 728/729

'a statue of Limitation cannot begin to run unless there are two things present a party capable of suing and party liable to be sued.'

18. That case quoted the judgment of Lord Reid in Central Asbestos Co Ltd v Dodd [1972]2 All E. R 1135 and stated as follows.
    

'Lord Reid, in particular in identifying the necessary elements of a claim for damages for personal injuries said at p 1139;

'Before a person can reasonably bring an action he (or his advisors) must know or at least believe that he can establish (1) that he has suffered certain injures;(2) That the defendant (or those for whom he is responsible) has done or failed to do certain acts; (3) that his injuries were cause by those acts or omissions; and (4) that those acts or omissions involved negligence or breach of duty'.

19. Applying the above principles that was laid down by Lord Reid in Central Asbestos Co Ltd v Dodd [1972]2 All E. R 1135 it is clear that the Plaintiff in this case should have known if he suffered injuries and he was aware of the defendant's alleged negligent act and that alleged injury was cause due to that. So, the Plaintiff cannot state that he delayed this action because he made a claim to the insurance and the delay was due to the fault of the insurance. There is no evidence of any rejection from insurance and if rejected the date of rejection is also material but that is not given.
    
20. In any event the Plaintiff has not fulfilled the first requirement of establishing a cause of action as he has failed to adduce evidence that is acceptable to court. The 'medical report' cannot denote any treatments after the accident and no previous reports relating to the history of the alleged injury was made available either to this application or for the medical centre in preparation of the report made after 3 years from the alleged incident without any visible injury. The alleged 'medical report' is nothing but a hearsay, which merely recorded what was stated by the Plaintiff without any medical diagnosis or analysis and the person who made that 'report' has not made any expert comment or report. There is no name of the person who examined the Plaintiff and there is no designation or qualification of the person who made this alleged report. So, it is clear that this medical report cannot be considered as a piece of evidence as required in Section 17(2) of the Limitation Act to establish a cause of action.
    

4. CONCLUSION
   

In the circumstances the Plaintiff has failed to establish the requirements contained in Section 17(2) and also failed to fulfill the requirements laid down in Section 16(3). Inadvertence on the Plaintiff's part cannot be a ground for extension of limitation in terms of the provisions contained in the law as well as on decided case law. If inadvertence is considered as a ground for extension that clearly is a misnomer to the provisions contained in the provisions in the Limitation Act. So, this application seeking extension of time is struck off without cost.

5. FINAL ORDERS
   
   1. The summons for extension of time is struck off.
      
   2. No cost.
      

Dated at Suva this 24th day of October, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva