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High Court of Fiji |
IN THE HIGH COURT of FIJI
AT LABASA
NORTHERN DIVISION
Civil Action No: HBC 50 of 2004
BETWEEN:
SHEIK ASIF KHAN by his next friend and father
NASIR KHAN of Taveuni
Plaintiff
AND:
MINISTRY of HEALTH
1ST Defendant
AND:
THE ATTORNEY GENERAL OF THE REPUBLIC of
FIJI
2nd Defendant.
----------------------------------------------------
IN THE HIGH COURT of FIJI
AT LABASA
NORTHERN DIVISION
Civil Action No: 49 of 2004
BETWEEN:
FILIMONE MASARAU by his next friend and father
TEVITA SALIVALIVA of Korotari Labasa
Plaintiff
AND:
MINISTRY of HEALTH
1st Defendant
AND:
THE ATTORNEY GENERAL of FIJI
2nd Defendant
Counsels: Mr. Sen of Maqbool & Co for the Plaintiff;
Ms. Lee of Attorney General's Chambers for the Defendants
Date of Ruling: 27 April 2012.
RULING
INTRODUCTION
The above two matters arose from an incident at the Labasa Hospital in which two mothers walked away from the maternity ward with the "wrong" babies. The causes of action are the same and so are the applications made in respect of them which are before the court for determination. It is therefore appropriate in my view to deal only with one matter and apply the decision to both actions. The action which will be dealt with is Civil Action No: 50 of 2004 which is that of Sheik Asif Khan –v- Ministry of Health & Anor.
THE APPLICATION
There are currently two applications before the Court, the first is an Order 33 application by the Plaintiff dated 28 October 2010 seeking an order or orders that the following questions of law and or partly of law and of facts to be determined:-
1. Whether the claim is statute barred;
2. Are the Plaintiffs estopped from bringing this action by reason of High Court actions No: 45 & 46 of 1996 wherein a claim was brought by their next friends against the defendants and where damages were awarded to the parents and therefore does Res Judicata apply; and
3. Whether the state is liable to the Plaintiffs.
The second application by Summons was filed by the Defendants on the 16 March 2011 in which they sought an order that the action be struck out as it is statute barred and otherwise an abuse of process. This application is made under Order 18 rule 18(1)(d) and is supported by an affidavit sworn by one Ajendra Sharma, civil servant who deposed, very briefly so far as relevant the following facts.
1. That the Plaintiffs are claiming damages against the Defendants for negligence arising out of their being given to the wrong parents (or switched) at birth on the 1 August 1994;
2. That the Plaintiff's "parents" in September 1996 issued separate proceedings against the Defendants in legal actions No: 45 & 46 of 1996 for damages suffered by them arising from the said baby switch;
3. That on admission of liability by the defendants the "parents "were awarded damages to the sum of $20,000:00 on the 4th of March 1999;
4. That on the 24 August 2004 the Plaintiff children filed a statement of claim for the present action claiming damages for the distress they suffered as a result of the baby switch which has affected their social, physical and mental well being;
5. That the present action is statute barred in that the time ran from the 19 November 1996 when negligence was admitted by the Defendants and therefore the action is out of time by about five years;
6. That the Plaintiffs had actual and constructive knowledge of all the material facts relating to the cause of action when liability was admitted by the Defendants in November 1996;
7. That as there was no application for leave to issue proceedings and no extension of time granted to them to issue proceedings the action is an abuse of process and the action ought to be struck out.
BACKGROUND
Before we proceed any further it is appropriate in light of the uniqueness of this matter to provide a brief outline of the facts. In the words of Justice Scott, when he dealt with the parties in a prior action "the facts of these two cases are without precedent in the Courts of Fiji", the reason is that there has never been a "baby switch" case in our jurisdiction.
The facts very briefly is that on the 1st of August 1994 two mothers gave birth to two boys at the Labasa Hospital, one a ITaukei Fijian lady and another of Fijian lady of Indian extraction. The ITaukei Fijian lady, Mrs. Sofia Maleti named the boy she took home Filimone Masarau while Mrs. Farida Bi named the boy she took home Sheik Asif Khan. A few months later the respective parents and their relatives noticed that the physical characteristics of the two children were different from their parents. This created a lot of confusion and suspicion to the extent that accusations of extra-marital affairs were directed in particular at Farida Bi by her husband Nasir Khan. When the boys were about eight (8) months old enquiries were made at the Labasa Hospital by two lady friends of Mrs. Sofia Maleti about the possibility of the babies being given to the wrong mothers. After this visit by the ladies, arrangements were made for them to meet Mrs. Farima Bi at Seaqaqa. After the visit they told her that the child in her custody and care was Mrs. Sofia Maleti's and that her son was in the custody and care of Mrs Sofia Maleti.
Although the parties now knew the location of their sons no action for habeas corpus was initiated by the parents, rather the parties chose instead to issue proceedings for damages for the distress caused by the negligence of the Labasa Hospital as a result of the switch. The Defendants after the admission of liability were ordered by the Court to pay damages to the parents. One of the points raised by the Defendant's at the assessment of damages hearing was that the parents did not mitigate their loss in that they had ample time to exchange the boys but did not. To this date the two boys are still with the couple who took them home.
THE CURRENT ACTION
In August 2004 when the two boys were ten years old, they, by their next friend, their de-facto fathers issued claims for damages arising from the switch. For simplicity and because the ruling will be the same for both matters I will deal only with the claim of one of the Plaintiffs, namely Sheik Asif Khan. The young Sheik Asif Khan by his next friend Nasir Khan issued a claim against the defendants and the statement of claim stated the following:-
1. THE Plaintiff is a minor born on 1st day of August 1994 and brings this action through his father de-facto (as per certificate of birth) and next-friend Nasir khan.
2. THE Plaintiff was born at Labasa Hospital on 1st of August 1994 his natural parents being Tevita Salalivaliva and his mother Sofia Maleti both ethnic Fijians.
3. FOR the reasons of negligence of the servants and agents of the First Defendant, the Plaintiff was handed over to Farida Bi who also on 1st of August 1994 had given birth to a male baby. (The negligence shall hereinafter be referred as "BABY SWITCH").
4. THAT the First Defendant is sued as a representative of the Government of Fiji, which owns and operates various hospitals in Fiji including Labasa Hospita1.
5. THAT the second defendant is liable for this claim under section 3 of the Crown Proceedings Act Cap 24.
6. THE Plaintiff continues to reside with his de-facto parents as opposed to his natural parents.
7. THE plaintiff was a student in class 4 at South Taveuni Indian School at beginning of year 2004 but has since dropped out for reasons as pleaded hereinafter.
8. WHEN the Plaintiff began attending class 4 in the year 2004 he began questioning his de-facto parents of his physical features that was more akin to ethnic Fijians and unlike to his Indian parents and his de facto family members
9 SOMETIMES this year the plaintiff was advised by his de-facto parents that his natural parents were in fact ethnic Fijians and the reasons for him being in their custody was due to "BABY SWITCH".
10. THEREAFTER the plaintiff's health and wellbeing was adversely affected and he continues to suffer.
PARTICULARS OF PAIN AND SUFFERING
(a) Plaintiff is not being accepted in the ethnic Indian community.
(b) Plaintiff is discriminated by members of his local community.
(c). Plaintiff is ill treated by his school teachers and fellow students.
(d). Plaintiff is subjected to dissolute and profligate remarks.
(e). Plaintiff is being abused.
PARTICULARS OF SPECIAL DAMAGES
(a). His parents move back to Labasa and stay together with natural parents – costs $200,000;
(b). Costs of private professional help particulars of would be provided to court at the date of hearing.
In its defence the defendant states, so far as is relevant, the following:-
1. The Defendants deny the allegations of negligence made by the Plaintiff and say that the claim is void for uncertainty;
2. The Defendant's deny that they are liable for the claim under s.3 of the Crown Proceedings Act and say further that the Crown can only be vicariously liable if the allegations of negligence and the loss are proved by the Plaintiff;
3. The defendants are not aware of the allegations contained in paragraphs 6 to 9 inclusive of the Statement of Claim, and therefore deny the same and put the Plaintiff to strict proof of the allegations contained therein;
4. The defendants are not aware of the allegations contained in paragraph 10 of the Statement of Claim, and therefore deny the same and put the Plaintiff to strict proof of the allegations contained therein. The Defendants further deny the particulars of pain and suffering, and put the Plaintiff to strict proof of the allegations contained therein;
5. The defendants deny the allegations contained in paragraphs 11 and 12 of the Statement of Claim, and the particulars of special damages, and put the Plaintiff to strict proof of the allegations contained therein;
6. The defendants further say that the Plaintiff's alleged claim of negligence accrued in 1994. In any event, the Plaintiff (by his guardian and next friend) was aware or ought to have been aware of the alleged loss in or around 1999, when this Honourable High Court alerted the Plaintiff's next friend to the problems inherent in leaving the Plaintiff with his de-facto parents. Accordingly, the Defendants say that this action is barred under the statute of limitations and the Defendants will rely on the Limitation Act (Cap. 35);
7. The defendants further say that in 1999, this Honourable Court had expressly indicated that the Plaintiff should return to his natural parents. At that time, the Plaintiff's father and next friend was made aware and clearly knew or ought to have known about the problems inherent in not returning the Plaintiff to his natural parents. In spite of this actual knowledge, the Plaintiff (by his father and next friend), decided to remain with his de-facto parents. The Defendants say that the Plaintiff therefore consented and willingly and voluntarily adopted the course of conduct to remain with his de-facto parents, and therefore in the circumstances, no action lies against the Defendants;
8. In reply to the particulars contained in paragraphs 10 to 12 inclusive of the Statement of Claim, the Defendants say that the Plaintiff failed to mitigate his losses by refusing to return to his natural parents; and
9. Further and in the alternative, the Defendants say that the Plaintiffs next friend brought proceedings against the Defendants in 1996 and made allegations of negligence against the Defendants. The Plaintiff's next friend sought and obtained damages for the alleged negligence in 1999, accordingly, the Defendants say that the Plaintiff's claim for the same alleged negligence is barred or estopped and is res judicata.
10. The Defendants therefore pray that the Plaintiff's claim be dismissed with costs.
The Plaintiff in reply to the Defendant's Statement of Defence states that: -
1. That an acceptance by the Defendants that there was a baby switch is an acceptance of negligence and that the pleadings are sufficient to establish negligence;
2. That in the Labasa High Court action No:45/96 was instituted by the mother of the Plaintiff and that negligence was accepted by the Defendant;
3. That the action for damages accrues from the time the loss is discovered or is known;
4. That the Plaintiff admits that that he was made aware in 1999 that there may be a loss in future and that even if time did accrue from 1999 (which is denied) the Plaintiff is within time to bring these proceedings;
5. That the Plaintiff says that in 1999 the Defendants were alerted of the inherent problems in leaving the children with the de-facto parents and possibility of a further action for damages;
6. That the Defendants were aware that it was their duty to provide professional help and mitigate its losses and that they refused and or neglected to provide professional help;
7. That the Plaintiff denied that the action is barred under the Limitation Act;
8. That the Plaintiff denies that the Court expressly indicated that the children should return to his natural parents and that in 1999 the Defendants were aware of the inherent problems that would be encountered by the Plaintiff;
9. That in 1999 the Defendants were aware or knew or ought to have known that it was encumbent upon them to provide a carefully managed programme to return the Plaintiff to his natural parents and that they refused and /or neglected to provide professional help to the Plaintiff;
10. That the Plaintiff made various attempts to exchange the children but were unable to do so without professional help;
11. The Plaintiff says that the Defendants have failed to mitigate its losses and further say that the loss has been further aggravated by their refusal to provide professional help;
12. That the civil action in 1996 was brought by the mother of the Plaintiff for damages suffered by her and the Court in deciding the damages in that action made it transparently clear that the children were not parties to the proceedings.
DETERMINATION of the APPLICATION
The questions which need to be determined are:-
1. Are the claims statute barred;
2. Are the Plaintiffs estopped from bringing this action for reasons of High Court actions No: 45 & 46 of 1996 wherein a claim was brought by their "parents" against the defendants and therefore does Res Judicata apply; and
3. Whether the state is liable to the Plaintiffs.
For jurisdictional reasons this Court cannot determine the question of liability but could only answer the first two questions. The first question was asked by both the parties and appears most appropriate to be dealt with first but more importantly the decision will affect the second question. Hence if the claim is statute barred it will not then be necessary to answer the second question or for that matter the third.
Is the claim statute barred?
Both parties provided helpful submissions after the hearing of the application. The Defendant submits that the present action is statute barred because of the following reasons:
a) That time began to run from 19 November 1996, when negligence was admitted by the Defendants in Civil Actions 45 & 46/1996 when the parent plaintiffs had actual and constructive knowledge of all the material facts relating to the cause of action therefore under section 4 of the Limitation act the action is statute barred;
(b). With the above knowledge the parent plaintiff can, with sufficient confidence embark on the preliminaries to take legal action;
(c) If the parent plaintiff knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not an excuse;
(d) Pursuant to section 11 (2) (b) the extension of time limitation in the case of a minor does not apply if the minor was in the custody of a parent;
(e) Pursuant to section 16 of the Limitation Act the leave of the court has not been granted for the extension of time before the present action was instituted.
The Plaintiff in its submission states that the children are not in the custody of their parent because they were switched at birth and that the whole purpose of the action is that "the children want damages or compensation or a program being put in plan so that the children can be returned to their respective biological parents. The children are not in custody of their biological parents by reasons of the negligence which gives rise to the cause of action". Therefore the Defendants contention that the action had accrued to them when the negligence were discovered means that they were in the custody of their parents cannot be upheld in the circumstances. Accordingly, defendant's argument that the action had accrued to them at the time when the negligence was discovered means that they were in custody of their parents cannot be upheld under the circumstances. It is submitted that the children have a right to bring an action under section 11 after the expiry of six years as the right to recover damages had not accrued to them as they were not in custody of their parents.
From the above the Plaintiff concluded that:-
1. Children were never under the custody of the parents to bring this action thereby bringing this action within the ambit of section 11 (exception) of the Limitation Act – where the children are minors, are deemed to be under disability and accordingly they were entitled to bring this action until they attain the age of 21 years.
2. Although the tort was committed more than six years ago, the right to bring an action for damages only become necessary when damages are quantifiable and apparent.
Both parties briefly addressed the issue of the effect of the extension of time, in an action by a child, under the Limitation Act where a child is in the custody of a parent. That is whether the child is considered to be under a disability at the time at which a cause of action is said to accrue. This issue being the determining one it is therefore appropriate to look at how Section 11 of the Limitation Act affects this action. This provision states:-
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 (emphasis added):
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 effects 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 (emphasis added).
What does this provision mean?
Section 11 sub-section (1) simply means that a right of action, for which the Limitation Act applies, accrues to someone with a disability six years from the date in which he/she ceases to be under disability or when he/she dies whichever event comes first. That is, a person has six years from the time at which he/she is no longer under disability to proceed with the action. This is in keeping with the idea of having fixed periods of limitation but it accepts the proposition that it is necessary to allow the extension of time to cover situations where persons are unable to bring actions due to legal impediments as a result of being minors or of unsound mind. Of course the period of six years is reduced to three years under sub-section 2 of section 11 in actions of negligence such as this. Under Section 11 sub-section 3 a person is said to be under a disability if he/she is a minor or of unsound mind.
However the above provision does not affect or apply in cases where the right of action first accrued to some person not under disability through which the person under disability claims. That is, it does not apply in cases in which the person under disability sues with the help of a parent or is in the custody of a parent. The most important qualification for the right of actions which accrues to someone under a disability is that which is provided for under Section 11 sub-section 2 (b) which states:-
(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.(emphasis added)
The onus is therefore on the Plaintiff to prove that the person under the disability was not at the time at which the right of action accrues, in the custody of a parent. Three things are therefore necessary for the Plaintiff to prove and these are:-
(a). The plaintiff was under a disability;
(b). That the Plaintiff at the time of disability was not in the custody of a parent; and
(c). That the above conditions were present when the cause of action accrues.
The parties submissions on the issues
The Plaintiff submits that right of action for damages must be brought when the actual damages was realised and not before that and provides Cartledge –v- E Jopling & Sons Ltd (1963) AC 758 and Sparham-Souter –v- Town and Country Developments (Essex) Ltd as authority for the proposition. He states on page 4 of his submission that:-
This is a case where the damages had not been apparent after sometimes of commission of the tort. For example; exposure to dust may damage a plaintiffs lungs in an irreversible way but the condition may not be severe enough to give rise to damages.
Accordingly, the existence of loss was not known to the plaintiffs until such time the children had grown up and it was desirable that a program be arranged so that both parents of the children could be together until such time the children grow up and move on with their lives.
As stated in paragraphs 8 to 10 of the claim that when the Plaintiff was in class 4 in 2004 he began to question his "de-facto parents about "his physical features that was more akin to ethnic Fijians and unlike to his Indian parents and his de-facto family members. He was then advised that his natural parents were in fact ITaukei Fijians and the reason for him being in their custody is that he was switched at birth. Thereafter his health and well being was adversely affected. So as far as the Plaintiff was concerned his cause action starts to accrue sometime in 2004. In other words the damage, if any, manifests itself in the form of a realisation of his physical features being different resulting in adverse health and well being at precisely that point in time. The claim was then issued in the same year, August 2004 to be precise, which was as far as the Plaintiff was concerned, well within the three (3) year period at which the action is to be instituted.
The Defendants contention is that the time starts to run from the 19 November 1996 when liability was admitted by the Defendants in the previous proceedings.
In respect of the second question or issue the Plaintiff on whom the onus lies submits that:-
"both the children namely Filomone Masarau and Sheik Asif Khan are not in custody of their parents by virtue of the fact that the respective children were switched. It would be preposterous to suggest that the children are in custody of their parent(s) when they were switched .... The children are not in custody of their biological parents by reasons of the negligence which gives rise to the cause of action"
Put simply, the babies were switched at birth and could not possibly be with their parents. In the Plaintiff's view the biological parents are the only person who could rightly be called parents for the purpose of this action.
The Defendants on the other hand took the view expressed in Todd v Davidson [1971] 1 WLR 898; whereby the House of Lords defined the phrase "custody of a parent" as no more than 'in the care of a parent' and denoted a state of fact.
In order to correctly follow the legal logic sufficient for this court to determine the above issues it is important in my view to determine the question of disability first. Under the Limitation Act a person is presumed to be under a disability if he/she is an infant or of unsound mind. The Plaintiff was ten (10) years old when the writ was issued and therefore it is not in dispute that he is an infant but what is in dispute is whether the Plaintiff was in the custody of a parent during the period of disability and when the right of action accrues.
The Custody of a parent
The mere fact that the Plaintiff is an infant does not operate to postpone the accruing of the limitation period unless the Plaintiff can show that he was not in the custody of a parent at the time the cause of action arose. This is what section 11 sub-section 2(b) is stating and has become known widely as the custody of a parent rule. This section presumes that a person under disability can expect his/her parent to look after his/her interest and to bring an action within the limitation period. The consequence of this is that time will start to run as if the infant was not under any disability. The test for custody is whether there is effective care and control. The onus is on the Plaintiff to prove that he was not in the custody of a parent at the time at which the cause of action accrues. What did the Plaintiff offer as proof that the child was not in the custody of a parent at the time? The Plaintiff's submission is simply that by virtue of the "switch" he is not with his parents and that it would be preposterous to suggest otherwise "...the children are not in custody of their biological parents by reasons of the negligence which gives rise to the cause of action" There was no other evidence offered to advance the position any further notwithstanding the onus because it appears to be the obvious position to take under the circumstances.
However there are numerous decisions in other jurisdictions similar to ours where the meaning of custody of a parent were determined and in those early decisions the distinction between legal custody and actual custody became moot. In 1883 Brett MR in the course of his judgement in "In re Agar –Ellis [1883] UKLawRpCh 194; (1883) 24 Ch.D. 317 stated that:-
"...the law of England, which is that the father has the control over the person, education, and conduct of his children until they are 21 years of age"
In 1928 in a dispute between husband and wife over a separation agreement which contained a provision relating to the custody of a child, Lord Hanworth MR said that the term custody (in the agreement) does not mean actual physical custody, but the right to control, Willis v. Willis (1928). In Hewer v. Bryant (1970) 1 Q.B. 357 Lord Denning criticised the above decision as reflecting the attitude of a Victorian parent to his children and thought that the common law should declare that the legal right of a parent should end when the child attains the age of 18 years. He also said that this right of custody was a ... "dwindling right which the courts will hesitate to enforce against the wishes of the child, ....It starts with a right of control and ends with little more than advice". Lord Viscount Dilhorne in Todd v. Davison (1972) AC 392 agrees with the view of Lord Denning in that the custody of a parent denotes a state of fact and not a state of law and states at p.407 that:
While evidence that no effective parental control was exercised may be relevant to the question of whether there was actual custody, to whether the infant was being cared for and looked after, departure from what a normal parent might be expected to do does not, in my opinion, negative the existence of actual custody. If a child say ten is living at home with his parents and is fed and clothed by them, it would not, in my opinion, be right to say that he was not in their care in consequence of the failure of a parent to take some action which it might be regarded as his duty to take."
Lord Denning in Hewer-v. Bryant (1970) 1 Q.B. 357 said at 369 that:-
" ... an infant is "in the custody of a parent" if he is, in point of fact, in the effective care and control of a parent at the time of the accident. I stress the word "effective" because I am firmly of opinion that Parliament must have had in mind a parent so circumstanced that can be confidently expected that he will take whatever action is necessary or desirable on behalf of the infant; so much so that, if the parent fails to take action, the blame falls on him, and on no one else. To that extent Parliament has said that the sins of omission of the father are to be visited on the children. But no further. If the circumstances are not such that the father can confidently be expected to take action, the child should not suffer.
Further in Todd –v.- Davison Lord Viscount Dilhorne at p.408 is of the view that:-
" ...the relationship between parent and infant must be such as to leave no doubt that there was effective care and control for it to be held that there was actual custody, but it must be borne in mind that time will begin to run against an infant unless it is proved that he was not in the custody of a parent at the time when the right of action accrued"
The Plaintiff in this matter should prove that the child who he now represents as next friend was never at any point in his custody and care during the period at which the cause of action arose. There was no evidence provided by the Plaintiff to confirm this. The child as far as the Court is aware has been in his care, has been fed, clothed, educated by him and his wife from the day they took the child from the Hospital to this day. I am satisfied that the child Sheik Asif Khan has not been in the custody of any other person accept Nasir Khan and his wife from 1 August 1994 to the date of this action.
Who is a parent?
The Limitation Act defines a parent as:-
"include(s) father and mother, and grandfather and grandmother, and stepfather and stepmother, whether any such relationship is legitimate, illegitimate or in consequence of adoption"
The interpretation as can be seen is inclusive and does not exclude any other relationship. In other words for the purpose of the Limitation Act a parent could be anyone apart from those referred to above. The definitions of "a parent" appears to vary depending on the relationship between an adult and an infant. The Macquarie dictionary defines a parent as "a father or a mother or protector or guardian". The Family Law Act does not define it per se, but identifies it as a consequence of relationships arising from an acceptance of parental responsibilities (see s 45). Hence a parental responsibility in relation to a child under the above act means all the duties, powers, responsibilities and authority which by law, parents have in relation to children. For the purposes of certainty (if certainty could be adduced from a presumption) section 133 of the Family Law Act states that a person is a parent of a child if his/her name is entered as a parent in the register of births. What is clear from the above definitions is that it is not only the biological mother or father that can be identified as a parent and for the purposes of the Limitation Act in particular they are included in the wide definition of a parent.
Can Mr. Nasir Khan be a parent of young Asif Khan, a young boy whose biological parent is ITaukei Fijian? The Plaintiff's position is that he could not be a parent because of the switch but offers no other evidence which could enlighten the court that Mr. Nasir Khan was never a parent. Mr. & Mrs Nasir Khan took a young boy from the Labasa Hospital on the 1 August 1994 and to the couple this infant was theirs and indeed it was. The infant's birth certificate stated that Mr. Nasir Khan is his father, (para. 1 of claim). They had custody of this child and performed all the duties expected of them as parents to the infant. When it became apparent that the child did not look like them they suspected that something was amiss. Not too far from where they then lived in Seaqaqa a couple at Korotari realised that the infant in their custody and care did not look like them either, they too and their relatives knew that something was amiss. It was at the initiative of two elderly ITaukei Fijian ladies and their subsequent visit and enquiries at the Labasa Hospital which led them to the home of Mr. & Mrs Nasir Khan whereupon the switch was confirmed. They then told Mrs. Nasir Khan that the child she and her husband had cared for and looked after was the son of Sofia Maleti and Tevita Salalivaliva of Korotari and that her child was being cared for and looked after by this couple. The infants were then about eight months old. Justice Scott commented in his decision in the previous action that the two couples finally met six months later when the children were 14 months old and that although the parents wanted to exchange, the children wept bitterly and so did their mothers.
The children at the date of this action in 2004 were about ten years old and to this date are still with the parents who took them home from the Labasa Hospital. Mr. Nasir Khan could not be in my view be anything else but a parent of Asif Khan as much as Mr. Tevita Salivaliva is the parent of Filimone Masarau both of them are for the purposes of the Limitation Act included as parents. It is the circumstances of the switch which has made them parents of the infant irrespective of their expectations and not the other way around.
The next friend
An infant can sue or be sued but he/she must do so by his/her guardian or some other person, that person is the next friend. The next friend must initiate proceedings on behalf a disabled person. In the case of a person disabled because of an unsound mind the next person who sues on his/her behalf is not a party to the proceedings. This is different in the case of the next friend who sues on behalf of an infant, the next friend is a party to the proceedings and is therefore responsible for costs. The legal logic is based on capacity, the capacity or ability to take part in legal proceedings. Order 80 of the High Court Rules specifically states that a person under disability must sue by a next friend whether by appointment or otherwise. Order 80 rule 2 states:-
"A person under disability may not bring, or make a claim, in any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment, order, notice of which has been served on him, except by his guardian ad litem."
Master Udit in Nilesh Chand –v- Yakesh Naidu & Hometown Motior Company & Sun Insurance Compsany Ltd (2007) HBC 8/02B stated that:-
There are many and varied reasons for appointment of a next friend. Kennedy LJ, in Masterman Lister -v- Brutton Co. (Nos. 1 and 3) [2003]1 WLR 1151 at paragraph 31 said that "In the context of litigation, rules as to capacity is designed to ensure that plaintiffs and defendants who otherwise be at a disadvantage are protected and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained". Chadwick LJ, at paragraph 65, said "The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity, and the court is concerned not only to protect its own process but to provide protection for both parties.........". It is also to ensure that there is a person who would be answerable to the costs of litigation; NSW Insurance Ministerial Corporation -v- Abualofaul [1999] FCA 433. The next friend is liable to pay all costs incurred in the action brought by an infant; Bligh –v-Tredgett [1851] EngR 903; (1851) 64 ER 1024.
What is clear though is that the position of the next friend is a special one. In early English legal commentaries it is considered a natural duty of a parent to uphold and maintain a child in law: 2 Coke's Institutes (1797) Vol. 2 p.563. Blackstone in his commentaries says that:-
From the duty of maintenance we may easily pass to that of protection, which is also a natural duty, but rather permitted than enjoined by any municipal laws; nature, in this respect, working so strongly as to need rather a check than a spur"
And again in "Chambers on Infancy" in (1842):-
The party so instituting the suit on behalf of the infant is called his next friend, because it is presumed that the person who will step forward to assert his rights, and to avenge his wrongs, will be his nearest relation..."
It follows therefore that Mr. Nasir Khan being the next friend of young Sheik Asif Khan has done what a responsible parent would do under the circumstances that is acted on the child's behalf to protect his interest. The child is, for all intents and purposes in his custody and care, he is by virtue of that relationship a parent as defined under the Limitation Act. For these reasons the child Sheik Asif Khan was not under a disability and in my view, never was notwithstanding the switch.
When did the cause of action arise?
The history of this case was described above but very briefly the two boys were born on the 1 August 1994 at the Labasa Hospital. The boys unfortunately were not taken home by their biological mothers. The mistake when discovered created a lot of problems within the household in which they were now being cared for. The opportunity to have the boys returned to their biological mothers was present when they were eight months old. The parents could have, in my view, done all that was required and necessary to exchange the boys but did not. By the time the mothers set eyes on their biological sons sixteen months later, nature's bond had taken over and separation was difficult for both mother and child. The parents now knew that there was a wrong which gave rise to a cause of action. On the 2 September 1996 Mr. Nasir Khan and his wife issued proceedings against the Defendant for damages arising from the switch. They said that they were denied the opportunity as a consequence of the switch to bring up and give love and affection to their biological child. The Defendant admitted liability on the 29 April 1998 and judgment was entered by consent with damages to be assessed. The consent judgement was sealed and became an Order of the Court on the 7 May 1998.
The Defendant submits that the cause of action arose at the time at which liability was admitted and not after. That is from the 7 May 1998. The Plaintiff on the other hand submits that the cause of action arose when the wrong manifests itself, that is, when the young Sheik Asif Khan became aware of the physical difference or characteristics between himself and his parents and that the said characteristics or difference resulted in his being discriminated against and abused by his school teachers, friends and members of the community. That he suffered injury physically and mentally because of the discrimination and abuse.
What is the wrong which gave rise to this action? A wrong is defined as a violation or infringement of a right. It is indeed the right of the young infant Sheik Asif Khan after his birth on the 1 August 1994 to be taken home from the Labasa Hospital by his biological parents as much as it is the right of his biological parents to take him home. It is the undisputed fact that young Sheik Asif Khan whose biological parents were iTaukei Fijian was not taken home by his biological parents from the hospital. The "baby switch" was the wrong, a fact which became visibly apparent sometimes later, eight months after to be precise. It is this wrong which gave rise to the cause of action initiated by the parents of the children in September 1996 and it would also be in my view the same wrong which will give rise to the cause of action of the children. There are in fact two different rights which were affected by the one wrong, the right of the infants and the right of the parents, both rights are separate and exclusive but most importantly simultaneous. In the exercise of his right Mr. Nasir Khan as a parent of the infant Sheik Asif Khan issued proceedings in the High Court for damages arising from the baby switch. It is also a fact that as a result of the above proceedings that the Defendants admitted liability on the 7 May 1998 in that action and that the said Mr. Nasir Khan was paid damages.
The question now is, how will the infants exercise their right which was infringed by the switch? That right could only be exercised on their behalf by a parent or a person acting as his next friend. The next friend, in this case his father, is duty bound to sue on his behalf but he must do so within three years from the date from which they knew they had a cause of action. I agree with the Defendants view that the date at which the cause of action arose was from the date at which the defendant admitted liability for the negligent act. That is, from 29 April 1998 but as the consent judgement was sealed on 7 May 1998, the Plaintiff has to issue civil proceedings within three years from that date, that is, by 7 May 2001.
The Plaintiff's position that the cause of action arose in early 2004 when young Sheik Asif Khan noticed that his physical features was different from his parents and that this manifestation was the beginning of the cause of action is wrong on a number of grounds. The first is that this court can take judicial notice of the fact that the different physical features became apparent when the children were eight months old and again when they were sixteen months old when the biological parents first set eyes on the children. It is this fact which gave rise to the cause of action by the parents. It is also this fact which gave rise to the cause of action by the children. The second is that the proposition by the Plaintiff that the right of action for damages must be brought when actual damages was realised and not before is although true does not help his cause of action. This is so because the negligent act which gave rise to the damage was identified by the Plaintiff in 1997 and accepted by the Defendant in 1998. The Plaintiff in whose care and custody the infant Sheik Asif Khan was, knew of the negligent act and was duty bound to bring an action within three years from that date. The realisation of the damage ten years later is one of the matters which could have been considered at the assessment of damages stage had the matter been litigated then.
Does "res judicata" apply.
As stated above the rights infringed by the switch or the wrong were separate, exclusive and in this instance simultaneous. The rights of the infants to sue, was not in my view, part of the cause of action of the parents and as a consequence "res judicata" does not apply.
CONCLUSIONS
Given the above reasons I am satisfied of the following:-
1. That for the purposes of the Limitation Act Mr. Nasir Khan is the parent of the infant Plaintiff Sheik Asif Khan;
2. That the Plaintiff Sheik Asif Khan was at the time at which the cause of action arose was in the custody of Mr. Nasir Khan;
3. That for the purposes of the Limitation Act Cap 35 the Plaintiff Sheik Asif Khan was not under a disability when the cause of action arose;
4. That the cause of action arose from the 7 May 1998 when liability was admitted and perfected and that the Plaintiff had three years from this date to institute proceedings;
5. That for the above findings this action is statute barred.
In a similar way I am satisfied of the following in the second action HCA No. 50 of 2004:-
1. That for the purposes of the Limitation Act Mr. Tevita Salivaliva is the parent of the infant Filimone Masarau;
2. That the Plaintiff Filimone Masarau was at the time at which the cause of action arose was in the custody of Tevita Salivaliva;
3. That for the purposes of the Limitation Act Cap. 35 the Plaintiff Filimone Masarau was not under a disability when the cause of action arose;
4. That the cause of action arose from the 7th May 1998 when liability was admitted and perfected and that the Plaintiff had three years from this date to institute proceedings;
5. By virtue of the above the action is statute barred.
I make no orders as to costs in both matters.
.........................................
Master Harry Robinson
High Court, LABASA
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