Radravu v Tuimavana [2012] FJHC 1196; HBC258.2009 (4 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 258 of 2009

BETWEEN:

SUNIA VULA RADRAVU aka SUNIA BURUWA RADRAVU of Lot 30, Lakeba Street, Samabula, Suva, Fiji, Clerk, as the husband and administrator of the ESTATE OF SALOME DIDRODRO deceased.
PLAINTIFF

AND:

KAMINIELI TUIMAVANA of Cautata Village, Tailevu in Fiji, Driver.
1ST DEFENDANT

AND:

RAIWAQA BUSES LIMITED a limited liability company having its registered office at G.H Whiteside & Co, 211 Ratu Sukuna Road, Suva in Fiji.
2ND DEFENDANT

AND:

THE NEW INDIA ASSURANCE COMPANY LIMITED a limited liability company having its registered office at New India Assurance Building 87 M.G. Road, Fort Mumbai – 400 001 and having its principal place of business in Fiji at Harifam Centre, 2nd Floor, Cnr Renwick Road and Greig Street, Suva in Fiji.
1ST NAMED THIRD PARTY

AND:

LAND TRANSPORT AUTHORITY a statutory body duly established under the Land Transport Act 1998 and empowered under Section 6 (2) to sue and be sued upon, having its principal place of business at Lot 1 Daniva Road, Valelevu in Fiji.
2ND NAMED THIRD PARTY

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. A. Chand for the Plaintiff
Ms. Vulimaninadave Kele for the 2nd Defendant
Mr. Krishna for the 1st named Third Party
Mr. Fung L. for the 2nd named Third Party

Date of Hearing: 29th June, 2012
Date of Ruling: 4th July, 2012

RULING

A. INTRODUCTION

1. The Plaintiffs instituted the action against the Defendants for negligence due to the injuries as a consequence of the bus that they were travelling being ignited by a fire. Several passengers including the Plaintiff's wife succumbed to injuries due to the said fire that engulfed the bus. The 2nd Defendant has added 2nd named third party, Land Transport Authority, and a statement of claim was filed against the said 2nd named third party and a statement of defence was filed by the 2nd named Third Party. All the parties to the action has filed their respective affidavits verifying lists of documents and pre trial conference was held and the minutes of the pretrial conference is also filed. The 2nd named Third Party, opted not to be a signatory to the pre trial conference and now it seeks further and better particulars. The 2nd named Third Party was added to the action on the basis of the certificate it issued to the bus that ignited. The certificate was issued on 27th May, 2008 and the bus got ignited on 28th August, 2008. The 2nd Defendant is alleging inadequate or unprofessional and or negligence based on the said inspection by the 2nd named Third Party.

B. FACTS

2. The Land Transport Authority under the law is statutory body that issued the certificate of roadworthiness to the omnibus on 27th May, 2008 and just three months after the said certificate the bus was ignited and several passengers were killed and some were severely injured.

3. The third party statement of claim was filed on 28th April, 2010 and under the 'particulars of claim against third party' paragraphs 8,9,10 deals with the 2nd named Third Party and stated as follows

"[8] that the 2nd Defendant denies liability and negligence on its part on the grounds that the alleged incident was unforeseeable and was caused or contributed to by the negligence of the Land Transport Authority who had examined, assessed and certified the bus as roadworthy on 27th of May, 2008. The Land Transport Authority did not give an indication as to any defects or faults in the bus.

[9] That Land Transport Authority had provided the certificate of fitness confirming that the standard of the bus was inconformity with the proper standards and was mechanically and electronically sound and safe to be driven on public roads and to carry passengers.

[10] That the bus registration No RBL001 was inspected by qualified vehicle inspectors or professionals at Land Transport Authority." (emphasis is added).

4. The 2nd named Third Party filed a statement of defence and the action proceeded in the normal cause and all the parties have filed their respective affidavits verifying lists of documents and a pre trial conference minutes was also filed, without the concurrence of the 2nd named third party who opted to file the present application for further and better particulars.

5. The summons for the further and better particulars state as follows

'1. The Second Defendant do serve on the Second named third Party within 7 days of the Court making such order forth and better particulars of paragraph [8], [9] and [10] of the Third Party Statement of Claim dated 23 April 2010 and filed herein on 28th April 2010 as follows

A. Of the alleged negligence, stating:

(i) The particulars of negligence alleged against the Second named Third Party.
(ii) In each case the acts, facts and circumstances which it is alleged constituted the breach.

B. Of the failure by the Second name Third Party to give indication as to defects or fault, stating:

(i) the source of the alleged duty on the part of the Second named Third Party to give indication as to defects and faults, identifying with precision the statutory provision or contractual term under which it had a duty to give indication as to defects or fault
(ii) stating those defects or faults which the Second named Third Party should have indicated.

C. Of the confirmation that the standard of the bus was in conformity with proper standards and was mechanically and electronically sound and safe to e driven on public roads and carry passengers, stating:

(i) The source of the confirmation and identifying with precision where such confirmation was made and how

D. Of the allegations of breach of statutory duty against the Second named Third Party, stating:

(i) The exact statutory provisions, it is alleged were breached by the Second named Third Party.
(ii) In each case the acts, facts and circumstances which it is alleged constituted the breach, and the date or dates thereof.
(iii) If any of the acts, facts and circumstances are in writing, identifying the document or documents, in which it is alleged it was embodied, and setting out so much of the document as it is alleged had that effect.

E. THE LAW AND ANALYSIS.

6. Order 18 Rule 7(1):"A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, ... fraud or any fact showing illegality –

(a) Which he alleges makes any claim or defence of the opposite party not maintainable; or
(b) Which, if not specifically pleaded, might take the opposite party by surprise ..."

7. Order 18 Rule 11(1): "... every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words –

(a) Particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and
(b) Where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies."

Order 18 rule 11 (3) states as follows

'(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in this or her pleading, or in any affidavit of his or her ordered to stand as pleading, or a statement of the nature of the case on which he or she relies, and the order may be made on such terms as the Court thinks just.'

8. The principles on grant of further and better particulars are set out in the judgment of Byrne J in In re Estate of Harry Janson Ho [1993] FJHC 43:

"The general principle governing the delivery of further particulars of any pleading is that these will be ordered by the Court if it considered desirable to elucidate the issues to be tried and prevent "surprise" at the trial. No hard-and-fast line can be laid down as to the degree of particularity which is required of a pleader and which an opponent may demand of him when formulating either a claim or defence.

It is, however, essential that each party should give his opponent a fair outline of the case which will be raised against him at the hearing, and for this purpose he must set out in the body of his pleading all particulars which are necessary to enable his opponent properly to prepare his case for trial.

Particulars need be given only of facts and not of evidence but as much certainty or particularity will be directed in a particular case as is reasonable having regard to the circumstances and the nature of the acts alleged – see Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532. In Bullen and Leake and Jacob's Precedents of Pleadings 12th Edition the authors remark at p.113 that the tendency of modern practice is to give full particulars as may be necessary of the maters pleaded, and to respond to a request for further and better particulars of pleading more fully than previously. However, the law has always held against a party to litigation attempting to obtain information by way of particulars which can only be obtained by interrogatories – see Lister & Company Limited v. Thompson (1891) 7 T.L.R. p.107. The practical reason for this rule of practice is that whereas when interrogatories are delivered, the answers must be on oath and various objections to provide the answers such a privilege, oppressiveness and fishing and may be taken by the other party, the same is not true of further particulars. In addition, because answers to interrogatories must be sworn if, when the matter comes to trial the person interrogated when giving evidence appears to resile from or vary his answers to interrogatories, an attack may be made on his credibility.

This is not true of further and better particulars so that a party may obtain an advantage over his opponent if further and better particulars are supplied when they would not necessarily have been if interrogatories had been delivered."(emphasis added)

9. The 2nd Defendant at this stage is alleging that the 2nd named Third Party while examining the bus three months prior to the incident failed to examine it property and if there was a defect in the bus, that would have brought to their notice. Particulars need be given only of facts and not of evidence but as much certainty or particularity will be directed in a particular case as is reasonable having regard to the circumstances of the case as held in Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532. The circumstances of this case is that the cause of the fire is not an external factor and the bus was ignited when it was driven by 1st Defendant and in such circumstances whether there was a defect of the bus at the time of the inspection is a matter of evidence that the 2nd Defendant has to prove at the trial. Applying the example given in the Australian Civil procedure and Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532 the statement of claim against third parties explain the alleged negligence.

10. In Pacific Green Industries (Fiji) Ltd v Sun Insurance Company Ltd [2006] FJHC 60; HBC070.2005 (9 August 2006) it was held

"[6] The nature of the distinction between fact and evidence is often difficult to apply. The example discussed by the learned author of Australian Civil Procedure 4th edition at page 182 provides a simple illustration by example of the distinction between fact and evidence, and I quote:

"To take an obvious example, in an action for negligence, the plaintiff must prove a duty of care and a breach of that duty by the defendant. The plaintiff alleges the duty of care and the defendant's breach of it. The facts that constitute the breach are evidence. If, for example, the defendant owes the plaintiff a duty to provide a safe system of work, facts that the defendant maintained machinery by a particular ineffective method are evidence. The ultimate fact in support of the breach of duty is, inter alia, that the defendant failed to properly maintain the machinery. What constitutes the actual impropriety is evidence".

[7] A fact which is relevant only to establishing an ultimate fact is evidence. Those facts must not be pleaded. I must decide what facts constitute the defence and what facts go to prove the existence of those facts. Only the former facts are required to be alleged in the pleadings, since the latter class of facts are evidence.

[8] Denman CJ explained the nature of the distinction between fact and evidence in Williams –v- Wilcox, [1838] EngR 305; 112 E. R. 857 at 863 referred to in the above text on the same page as follows:

"It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation ...It is true that this mode of pleading does not disclose to the defendants the case on which the plaintiff relies: but to object to it on this ground, is to misconceive one object of pleading, and to forget another: the certainty or particularity of pleading is directed, not to the disclosure of the case of a party, but to informing the court, the jury, and the opponent of the specific proposition for which he contends, and a scarcely less important object is the bringing the parties to issue on a single and certain point, avoiding that prolixity and uncertainty which would very probably arise from stating all the steps which lead up to that point". (emphasis added)

11. The statement of claim against the 2nd named Third Party has indicted that 2nd Defendant is claiming indemnity on the alleged negligence in the issuance of the roadworthiness certificate to the bus that ignited.

12. The 2nd named Third Party issued the road worthiness certificate to the bus that ignited three months prior to the incident and whether that certificate adequately dealt all the aspects of the bus is a fact that has to be elicited by evidence. At this moment all the oral evidence cannot be discovered by an application for further and better particulars.

13. The 1st Defendant's position at this moment is that since the bus was ignited within 3 months of the inspection of the bus by the 2nd named Third Party, without outside cause, the defect of the bus that let to fire would have been prevalent at the time of the inspection and the cause of the fire was preventable. This has to be elicited in the trial as this will invariably need oral evidence as to the nature of the bus and its condition and how it was maintained by the 2nd Defendant Company. These are all evidence which will mostly dealt by oral evidence and cannot be elicited by a summons for further and better particulars.

14. This action was filed in 2009 and the statement of claim of the 2nd named third party was filed in 2010 and when the matter is almost ready with pre trial conference being held, this application for further and better particular in the absence of new discovery in the pre trial conference is a belated one and would further delay the trial.

F. CONCLUSION

15. Applying the principles laid down in Pacific Green Industries (Fiji) Ltd v Sun Insurance Company Ltd [2006] FJHC 60; HBC070.2005 this application should be struck off on merits as well as on belateness. The 2nd named third party has not explained any reason for the delay. The particulars sought by the summons cannot be allowed applying the example in Australian Civil Procedure quoted in the above case.

G. FINAL ORDERS

1. The undated summons filed on 21st March, 2012, seeking further and better particulars is struck off.
   
2. Cost of this application is cost in the cause.
   

Dated at Suva this 04th day of July, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva