Hussein v Pacific General Builders [2012] FJHC 1178; HBC235.2009 (21 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 235 of 2009

BETWEEN:

ASHIK HUSSEIN
of Lot 1, Velovelo, Temple Road, Lautoka, Unemployed.
PLAINTIFF

AND:

PACIFIC GENERAL BUILDERS
having its registered office at 5 Leonidas Street, Lautoka.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. Daniel Singh for the Plaintiffs
Ms. Swastika Narayan for the Defendants

Date of Hearing : 13TH June, 2012
Date of Ruling : 21ST June, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiff made the application for interim payment. The claim is bases on personal injury incurred while in the employment of the Defendant. The Defendant has pleaded contributory negligence and failure to exercise due diligence. The Defendant has failed to file an affidavit in opposition describing the manner in which the alleged contributory negligence occurred or fail to elaborate the alleged failure to exercise due diligence. The statement of defence is also silent on these vital issues.
   

2. FACTS
   

2. The following facts are admitted
   
   1. The Plaintiff was an employee of the Defendant for over 18 years before the alleged incident happened.
      
   2. On or about 10th February, 2008 while the Plaintiff was working in course of his employment with the Defendant company and he fell from a wooden scaffold when it gave way.
      
   100. The wooden scaffold broke and the Plaintiff fell from a height of 15 meters and this incurred serious injury to the Plaintiff.
        
3. The Defendant has admitted the paragraphs 3, 5, 6 of the amended statement of claim.
   
4. No affidavit in opposition is filed for the supporting affidavit filed by the Plaintiff.
   
5. The Plaintiff in his affidavit in support has submitted inter alia that he was 41 years old when the accident happened and that he had incurred special damages amounting $11,692.56 and substantial general damages due to present and future loss of amenities of life and total disability of 25% as a whole person.
   

100. LAW AND ANALYSIS
     

6. The law relating to the interim payment is contained in Order 29 rules 9 to Order 29 rule 18 of the High Court Rules of 1988.
   
7. In terms of Order 29 rule 10 an application for interim payment can be made anytime after the writ is served and the time limit for the acknowledgment of the writ has expired.
   
8. The mode of application for the interim payment is contained in Order 29 rule 10 (3) which reads as:
   

(3) An application under this rule shall be supported by an affidavit which shall-

(a) Verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application;

(b) Exhibit any documentary evidence relied on by the plaintiff in support of the application

9. The Order 29 rule 10(4) states that the applicant of an interim payment should file 'The summons and a copy of the affidavit in support and any documents exhibited thereto shall be served on the defendant against whom the order is sought not less than 10 clear days before the return day."
   
10. The Defendant neither filed an affidavit in opposition nor refuted the allegations contained in the affidavit in support, though they have filed a statement of defence and denied certain allegations in the statement of defence. The statement of defence cannot be considered as a material 'evidence' since it is a unsworn statement as opposed to the sworn affidavit of the Plaintiff. In the proper evaluation of evidence before me, though I considered the statements contained in the statement of defence, the evidential value is less compared to the affidavit evidence of the Plaintiff.
    
11. After an opportunity is granted for the Defendants to oppose the application, through an affidavit and or with supporting document, the matter was heard and Order 29 rule 11 deals with the requirements that has to be considered before an interim application is made. It states as follows:
    

Order 11(1) If on the hearing of an application under rule 10 in an action for damages, the Court is satisfied-

(a) That the defendant against whom the order is sought (in this paragraph referred to as 'the respondent') has admitted liability for the plaintiff's damages; or

(b) That the plaintiff had 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 of them the Court may, if it thinks fit and subject to paragraph(2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross – claim or counterclaim on which the respondent may be entitled to rely.

(2) No order shall be made under paragraph (1) in an action for personal injuries if it appears to the Court that the defendant is not a person falling within one of the following categories, namely:

(a) a person who is insure in respect of the plaintiff's claim.

(b) a public authority; or

(c) a person whose means and resources are such as to enable him to make the interim payment.

12. In Schott Kem Ltd v Bentley and others (1991) 1QB 61 the issue of interim payment was dealt comprehensively from page 69 to 75 and the legislative history and its development is dealt in the said judgment. The principles laid down in the determination of the interim payment can be summarized below: (as done in Schott Kem Ltd v Bentley and others (1991) 1QB by Neil L.J):
    
    • (1) That rules 11 and 12 of Order 29 form part of a single code; see Shearson Lehman [1987] 1 WLR 480, 492H, per Nicholls LJ. That under both rules the court approaches the matter in two stages;
      
    • (2) That at the first stage the court has to consider whether it is 'satisfied' of one of the matters set out in sub paragraphs (a) (b) and (c) of the rule 11 of Order 29;
      
    • (3) That in order for the court to be satisfied that the plaintiff would obtain judgment "something more than a prima facie case is clearly required, but not proof beyond reasonable doubt. The burden is high. But it is a civil burden on the balance of probabilities, not a criminal burden" This was held in the case of Shearson Lehman [1987] 1 WLR 480, 489A per Lloyd LJ.
      
    • (4) That at the second stage the court, if satisfied that the plaintiff would recover a substantial sum may then proceed, if it thinks fit, to order an interim payment " of such amount as it thinks just" At this stage under rule 11(1) the payment must not exceed 'a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross claim or counterclaim on which the respondent may be entitled to rely."
      
    • (5) That in an action for personal injuries rule 11(2) makes express provision concerning the means and resources of he defendant. Thus rule 11(2) (c) places an absolute embargo on the making of an order for interim payment in personal injury case where the means and resources of an uninsured defendant are inadequate. In other cases the means of the defendant are relevant though they are not decisive. Thus if a defendant's resources are such that an order for interim payment would cause irremediable harm which cannot be made good by an eventual adjustment or repayment under rule 17, that is a very relevant factor to be taken into account in fixing the amount of any interim payment .This was decided in the case of Quadrex [1989] QB 842, 867B per Sir Nicolas Browne- Wilkinson V.C.
      
    • (6) 'That interim payment procedures are not suitable where the factual issues are complicated or where difficult points of law arise which may take many hours and the citation of many authorities to resolve.' Schott Kem Ltd v Bentley and others (1991) 1QB 61 at p73
      
13. In the application of the abovementioned principles to the facts before me, the Plaintiff was an employee of the Defendant for a considerable time period spanning, over 18 years and the Defendant has admitted that the injury happened while he was employed in the course of his duties.
    
14. In the statement of defence the Defendant is alleging contributory negligence, but this fact is an unsworn allegation and in any event the particulars of the alleged contributory negligence is not stated.
    
15. The injury incurred on 10th February, 2008 due to the falling from the height of third level of a building while he was engaged in the work of plastering of walls, since the scaffold he was standing broke.
    
16. The Plaintiff has submitted number of medical reports. The first one is dated 24th April, 2008 issued by the surgical registrar of CWM Hospital, to the effect the Plaintiff fell from 15 meter height and the condition of the Plaintiff at that time before the surgery. The treatment was complete bed rest for 6 weeks with DVT prophylaxis.' The Plaintiff was transferred to the Tamavua Rehabilitation Hospital on 3.3. 2008.
    
17. The Medical report dated 3.8.2009 issued from the National Rehabilitation Medicine Hospital, at Tamavua states inter alia
    
    1. The Plaintiff was transferred from CWM Hospital to the Rehabilitation Hospital for investigation and acute medical management on 3.3.2008
       
    2. CT scan revealed burst compression fracture of first lumbar vertiebra
       
    100. Initial management included bet rest, deep venous thrombosis prophylaxis, and insertion of the in doweling urinary catheter.
         
    4. On admission to Rehabilitation Hospital, he was found to be incontinent of bowel and bladder function, and lower limb motor strength in all major muscle groups and impaired sensation from his hip level down, with complete sensory loss in the sacral region.
       
    5. A diagnosis of incomplete L1 paraplegias secondary to burst fracture of L1 vertebra secondary to fall was made.
       
    6. The Plaintiff continued the complete bed rest requiring total nursing care for 6 weeks and sat up on 3.4.2008 after 8 weeks from the fall.
       
    7. He was mobilized on wheel chair and daily physical therapy programs and training activities of daily living skills was administered.
       
    8. For the relief of pain oral analgesics and anti-depressant was administered.
       
    9. Discharged on 18.4.2008 and followed with out patient clinic.
       
18. The medical report of 1st June, 2009 issued by CWM Hospital applying the American Guide to Evaluation of Permanent Impairment, assessed the total impairment to whole body at 25%. It also state 'one year later he still has some difficulty on walking and backache. He also is constipated and sometimes has urinary retention required intermittent catheterization.'
    
19. In the proper evaluation of the evidence before me at this inquiry, on the preponderance of evidence, it can be safely deduce that the Plaintiff will obtain substantial damages at the conclusion of the trial. The mere allegation of contributory negligence cannot be a reason for the refusal of interim payment. At least some particulars as to the alleged failure to observe due diligence is needed, but I have not been provided with any.
    
20. In the said case of Schott Kem Ltd v Bentley and others (1991) 1QB 61 at p 73 & 74 it was further held that:
    

'The first submission was that it is for a plaintiff to satisfy the court of his need for an interim payment of that he will suffer prejudice if he does not obtain one and that in the present case Schott Kem had produced no evidence of need or prejudice.

In support of this submission counsel relied on the dictum of Croom Johnson LJ. in Breexe v R McKennon & Son Ltd. (1985) 32 B.L.R. 41, 50, where he said that the plaintiff's evidence should explain why the order is required and cover "the need for the plaintiff to have the money" In addition reliance was placed on the following passage in the judgment o Nicholls L.J in Shearson Lehman [1987] 1 W.L.R. 480, 492 G, where he said:

'the underlying purpose of [rules 11 and 12] is the same: to mitigate hardship or prejudice to a [plaintiff] which may exist during the period from the commencement of an action to the trial.'

Moreover, reference might also have been made to a similar dictum as to the underlying purpose of the rules of Ralph Gibson L.J in Ricci Burns Ltd v Toole [1987] 1 W.L.R. 993, 1002b.

Counsel for Schott Kem, on the other hand, relied on the fact that in Shearson Lehman [1987] 1WLR 993, Lloyd L.J. rejected an argument on behalf of the defendants that this Part of Order 29 was only intended to apply in very special circumstances where the plaintiff can show real hardship.

As I understand the present practice, it is customary in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need. This is a sensible course because large interim payment in such case may lead to difficulties is an order of or repayment is subsequently made under Ord 29 r 17.

I am not satisfied, however that there is any restriction implicit in the rules which prevent an interim payment order being made in the absence of evidence of need or prejudice. By the use of the words "if it thinks fit' both rule s11 and 12 confer discretion on the court whether to order an interim payment at all. Moreover the amount of the payment is expressed to be 'of such amount as [the court] thinks just' with that additional limitation in the case of damages the amount is not to exceed' a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff' after taking into account the matters specified. For my part I can see no basis for any further limitation on the jurisdiction of the court to order interim payments other than those set out in Order 29 itself.

I would therefore reject the argument that it is necessary for Schoott Kem to produce evidence of need or prejudice."(Emphasis is mine)

21. In claims due to the personal injury, the need for speedy and quick interim relief is fully justified considering the plight of the Plaintiff. The Plaintiff has already suffered pain and even present and future economic loss. Even the award of interest in final award for the damages, for the delay, would not sufficiently compensate the victim, and an interim payment will give some solace though the full payment is delayed due to reasons beyond control of the court.
    
22. In Fiji Court of Appeal it case of AG v Ministry of Health Civil Appeal ABU 022 of 2009(on a Ruling delivered on 8th June, 2010 upon a hearing on 16th February,2010) Justice John E Byrne quoted Stingman (a minor) v McArdle ( 1994) 1 WLR 1653 and said 'the English Court of Appeal held, dealing with the requirement of order 29 of the High Court Rules of Fiji that a plaint was not required to demonstrate any particular need beyond the general need to be paid his damage 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.'
    
23. In a more recent Fiji Court of Appeal Decision of Resident Justice of Appeal William R. Marshall, adopted the test applied in British Commonwealth Holding plc v Quadrex Holding inc [1989] QB 842, Andrews v Schooling [1991] 1 WLR 783 and Yeung Sek Sung v Cheung For Ming [1991] 1 HKR 1.
    
24. In White Book(2010) Vol 1, p 285 It was stated the interim payment is not suitable for factual issues are complicated or where difficult points of law arises which many citations or many authorities are referred Chiron Corporation et al Vs Murex Diagnostics Ltd [1996] Fleet Street Reports 153, it was held that if the factual issues are complicated
    
25. The action before me is not a complicated one and the defendant has not raised any complicated legal issues as a defence. The only issue of contributory negligence is not elaborated adequately to be considered as worth of attaching weight in the proper analysis of evidence at this stage. The Plaintiff was 41 years of age when this accident happened. He lost his employment due to this injury and I do not have any evidence of him being presently employed by another employer. The plaintiff state that he was the sole breadwinner of the family and it indicates that his earning capacity has severely affected due to the injury and he is not in a position to be engaged in the kind of work that he used to do on higher elevation due to his poor health condition after the injury. He has suffered severe pain from the injury. Though there is an allegation of contributory negligence the details has not been provided and I cannot see any contributory negligence at this stage on the evidence before me. The Defendant also state that the Plaintiff failed to exercise 'due diligence' but again falls short of explaining or elaborating it. Even the so called defence was unsworn allegation contained in the statement of defence without sufficiently particularization for the purpose of consideration of the interim payment. Considering the severe pain and loss of amenities of life and the total percentage of the impairment which was assessed at 25% I would grant an interim payment of $15,000 to be paid by the Defendant to the Plaintiff within 21 days. I assess the cost of this application summarily at $1,500.
    

4. FINAL ORDERS
   
   1. The Plaintiff is granted an interim payment of $15,000 to be paid by the Defendant with in 21 days.
      
   2. The Plaintiff is also granted the cost of this application, summarily assessed at $1,500 to be paid by the Defendant within 21 days.
      
   100. The Registry is directed to remove all the communication relating to interim payment from the file forthwith. No communication relating to the interim payment should be shown to the judge before the judgment.
        
   4. The action to take normal cause.
      

Dated at Suva this 21th day of June, 2012.

Master Deepthi Amaratunga
High Court, Suva