Kumar v Abdeans Electrical Services Ltd [2012] FJHC 1165; HBC78.2007 (18 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 78 of 2007

BETWEEN:

SATISH KUMAR of Muslim League, Nabua, Electrician.
PLAINTIFF

AND:

ABDEAN'S ELECTRICAL SERVICES LIMITED a limited liability company having its registered office at 52 Mukta Ben, Vatuwaqa AND KOOLINE REFRIGERATION LIMITED, a limited liability company having its registered office at Freeston Road, Walu Bay, Suva.
DEFENDANTS

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. D. Singh for the Plaintiff
Mr. S. Singh for the Defendants

Date of Hearing : 18th May, 2012
Date of Ruling : 18th June, 2012

RULING

1. INTRODUCTION
   

1. The 2nd Defendant has filed the summons seeking setting aside of the default judgment. The claim is based on personal injury to the Plaintiff, due to electrocution. Admittedly, the Plaintiff was employed by the 1st Defendant, but the case against the 1st Defendant has been discontinued and the relationship between the 1st and 2nd Defendant is not clear from the statement of claim. The 2nd Defendant claims contributory negligence and there are disputed facts and judgment is set-aside.
   

2. THE FACTS AND ANALYSIS
   

2. The Plaintiff filed the action for recovery of damages upon the injury caused to him, due to electrocution, while engaged in the installation of the air conditioning units.
   
3. Admittedly, the Plaintiff was employed by the 1st Defendant, against whom the Plaintiff has discontinued this action.
   
4. The relationship between the 1st and 2nd Defendant has not been clearly pleaded either in the statement of claim or in the affidavit in support.
   
5. The particulars of the negligence as stated in the statement of claim against the 2nd Defendant are as follows
   
   1. Leaving a live wire lying on the floor when they knew or ought to have known that the employees of the first defendant and in particular the plaintiff was also working in the same area.
      
   2. Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known.
      
   100. Failing to disconnect the power in the wire coming out of the air-conditioner before leaving it lying on the floor where the employee of the 1st Defendant, and in particular, the plaintiff were also working.
        
   4. Failing to take any or any adequate precautions for the safety of the said plaintiff while he was engaged upon his duties.
      
   5. Failing to warn the employees of the first defendant and in particular the plaintiffs the existence of the floor of a live wire.
      
   6. Failing to make regular inspections and examinations to switch off the flow of electricity into the exposed connecting 3- pin wire lying on the floor.
      
   7. Failing to select proper and competent persons to supervise and direct work on the said job site.
      
   8. In the premises, failing to provide a safe or proper system and place of working.
      
6. In the affidavit in support of the summons for setting aside in paragraph 18 there are two contemporaneous documents which allege that the 2nd Defendant was not involved with the electrical supply, but only to supply of air conditioning units and further state that the electrical work was done by another company.
   
7. The annexed to the paragraph 18 further allege contributory negligence on the part of the Plaintiff and state that the Plaintiff was adequately warned of the alleged electricity supply being connected to the grid of supply and the 'wires being live' at the time of the installations are carried on. The factual matters are disputed and there is an allegation of contributory negligence with particulars and the manner of the alleged contributory negligence.
   
8. The Supreme Court Practice 1997 (Volume 1) page 145, as follows:-
   

"Regular judgment – if the judgment is regular, then it is an (almost) 13/9/5 inflexible rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits (Farden v. Richter [1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124. "At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason, "per Huddleston B ibid. p. 129 approving Hopton v Robertson [1884] 8. T.L.R. 445, and Watt v Barnett (1978) 3 Q.B.D. 1983. p 363)

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression, see Alpine Bulk Transport Co. Inc. v Saudi Eagle Shipping Co. Inc. The Saudi Eagle [1986] 2 Lloyd's Rep. 221, C.A., and note 13/9/14, "Discretionary powers of the court," below. On the application is set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application, even if the explanation given by him is false (Vann v Awford [1986] 83 L.S. Gaz. 1725; The Times, April 23, 1986, C.A.). The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the court should exercise its discretion (see para 13/9/14, below)".

9. In Subhodh Kumar Mishra v Car Rentals (Pacific) Ltd (1985) 31 FLR 49 The Court stated as follows at page 52:-
   

"We now turn to consider the question of whether or not the judgment was entered irregularly or regularly. And we preface our observations by saying that in the application of similar rules as to that which is here under consideration, both in England and New Zealand, the cases in which a default judgment may be set aside have been grouped accordingly as the judgment was regularly or irregularly obtained. The distinction is clearly stated by Fry L.J. in Anlaby v Praetorious [1888] UKLawRpKQB 55; (1888) 20 Q.B.D. 764 at page 769 where he said:

"There is a strong distinction between setting aside a judgment for irregularity in which case the Court has no discretion to refuse to set it asideand setting it aside where the judgment though regular has been obtained through some slip or erroron the part of the defendant in which case the Court has a discretion to impose terms as a condition of granting the defendant relief."

100. CONCLUSION
     

10. The affidavit in support indicate the alleged contributory negligence and or arguable defence as the position of the 2nd Defendant has not been clearly pleaded in the statement of claim, though alleged negligence is pleaded with particulars. The Default judgment against 2nd Defendant is set aside and the 2nd Defendant is granted 14 days to file and serve the statement of Defence. The cost of this application is cost in the cause.
    

4. FINAL ORDERS
   

1. The Default Judgment entered against the 2nd Defendant is set aside.
2. The 2nd Defendant is directed to file and serve the statement of defence within 14 days from today.

100. The cost of this application is cost in the cause.
     

Dated at Suva this 18th day of June, 2012.

Master Deepthi Amaratunga
High Court, Suva