IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 341 of 2010

BETWEEN:

PENI KOROITACINA 
of Fiji Police Band Barrack 4 D, Nasova, Suva, Labourer.
PLAINTIFF

AND :

VITIANA TIMBERS (FIJI) LIMITED 
a limited liability company having its registered office at Nokonoko Place, Laucala Beach Estate.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. D. Singh for the Plaintiff 
Mr. V. Prasad for the Defendant 

Date of Hearing : 6TH September, 2012 
Date of Ruling : 17TH September, 2012

RULING

A.	INTRODUCTION

1.	The Plaintiff filed this application seeking interim payment for the injuries suffered to him while being employed by the Defendant. The injury occurred while the Plaintiff was shifting timber on the roller. The Defendant deny any negligence on their part and also state all the safety requirements were met and also refute the medical report. The Plaintiff has not satisfied the two prone test, namely that he will be successful in the claim and would obtain substantial damages.

B.	FACTS

2.	The Plaintiff on 21st October 2011 filed an application titled 'Summons for Interim Payment' The Summons supported with an Affidavit deposed by Peni Koroitacina on 21 October 2011 and filed on the same day. 

3.	An Affidavit was deposed in opposition to the Affidavit in Support by Niwaz Ali titled 'Affidavit in Opposition' on behalf Defendant in his capacity as a Managing Director of the Defendant on 30 August 2012 and filed on the same day. 

4.	The Plaintiff was employed by the Defendant at Defendant's job site at Nokonoko Place, Laucala Beach Estate, as a 'sawmill boy'. (see paragraph 1 of statement of Defence). The accident happened on 13th October, 2008 when he was shifting timber on the roller and one end of the timber got caught in the roller and the other end hit the Plaintiff's eye. (see paragraph 3 of the statement of defence)

C.	LAW AND ANALYSIS

5.	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.

6.	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

7.	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.'

8.	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.

9.	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

10.	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)

11.	The said case Schott Kem Ltd v Bentley and others (1991) 1QB 61 supports the proposition that interim payment application does not necessarily address the needs of the applicant, and Neill L.J at p 74 specifically, stated that production of evidence of need of an interim payment or prejudice if an interim award is not made, is clearly outside the scope of an inquiry of interim payment. So, a court would not consider those as necessary requirements in any interim payment application.

12.	 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.'

13.	Plaintiff at paragraphs 2 and 10 of the Affidavit in Support deposed the following:

"2. 	On 13th August, 2008 I suffered serious personal injuries during the course of my employment while I was shifting timber through the roller, the wasted timber which was cut too short by the operator got stuck in between the roller and the other end of the timber hit my eye causing serious injuries.

………….
………….
10.	That I am advised by my solicitor that there is no logical defence to my claim and it is only a matter of damage control in terms of the final award to be given by this Honourable Court." [emphasis added]

14.	The Defendant in its Affidavit in Opposition at paragraph 7 responded as follows:

"7.	THAT in response to paragraphs 2 and 10 of the said affidavit, I deny the allegations of the Plaintiff that the accident was caused in any manner whatsoever by the actions and/or conduct of any other employee of the Defendant company and/or by the actions and/or conduct of the Defendant company itself. I say that the Notice by the Employer of an Accident Causing Injury which I annex hereto marked as annexure "NA 1" which was prepared as required and pursuant to the provisions of the Workmen's Compensation Act by the Plaintiff's work supervisor proves that the Plaintiff had been wholly negligent. 

In further response I say that the Defendant Company had at the material time provided to the Plaintiff the requisite safety equipment being hard-hat safety helmet, safety eye goggles as well as provided the requisite training in respect of the proper use of the safety equipment provided and requisite training in respect of the operation of its machines, plants and equipment. In this regard, I annex hereto marked as annexure "NA 2" a letter dated 12 November 2007 written by the Ministry of Labour, Industrial Relations, Tourism and Environment (Ministry) to the Defendant Company which states that the inspection carried out by the Ministry on 8 November 2007 found the Defendant Company's machines, plants and equipment and its Occupation Health and Safety standards (OHS) compliant with the requirements of the Health and Safety at Work Act 1996 and that the Ministry had no objections recommending to the Conservator of Forest that the Defendant Company be issued with a Sawmill Licence for the year 2008. 

I annex hereto marked as annexure "NA 3" the Licence to Operate A Sawmill which was issued to the Defendant Company on 17 January 2008.

Accordingly I take serious objection to and vehemently deny the Plaintiff's allegations that the Defendant Company had breached its statutory duty or otherwise in any manner whatsoever in respect of providing the Plaintiff in the circumstances with the requisite safety equipment, requisite training in respect of the proper use of the safety equipment provided, requisite training in respect of the operation of its machines, plants and equipment, requisite training in respect of observation of all safety procedures whilst operating and using its machines, plants and equipment, a safe work environment and a safe and proper work system, as the evidence annexed hereto clearly proves otherwise."

15.	The Defendant has disclosed in the Affidavit in Opposition the fact that the Defendant Company at the material time was fully compliant with the Occupation Health and Safety standards (OHS) in its operation of its Saw Mill, but there is no guarantee that such safety standards are observed all the time and more particularly at the time of this accident, negligence can occur in spite of having OHS certificate, but if OHS was not obtained there was clear negligence on the part of the employer. The reverse of that is not equally applicable for actions based on negligence. Whether there was negligence or not on the part of the employer, has to be elicited by evidence and through affidavit I am not in a position to come to a firm conclusion that the Defendant employer was negligent. The burden of proof in an interim payment is high and not beyond reasonable ground, but a mere prima facie case is grossly insufficient (see Schott Kem Ltd v Bentley and others (1991) 1QB 61.)

16.	The Plaintiff has in his Affidavit in Support annexed a Medical Report on which he relies on in respect of his alleged disability caused by the alleged accident. At paragraph 4 of the Affidavit in Support, the Plaintiff deposes:

"4. That annexed herein are the following medical report on my injury suffered as a direct result of that accident on 13th August 2008:-

i.	Medical Report dated 3rd December, 2009 by Dr. C.B Rathod (Annexed herein marked "A")"

17.	The Defendant in its Affidavit in Opposition at paragraph 8 deposes as follows:

"8. THAT in response to paragraph 4 of the said affidavit, I refute the Medical Report dated 3 December 2009 marked as Annexure 'A' and say that the Defendant Company must be given the opportunity to test the evidence of the expert witness at trial by cross-examination. I further say that the Defendant Company has in preparation of the trial of this matter discovered the Plaintiff's driving record (as I had seen the Plaintiff driving a taxi on numerous occasions) from the Land Transport Authority which I annex hereto marked as annexure "NA 4". From the first page of the records annexed, that the Plaintiff had on 13 August 2011 obtained licence from the Land Transport Authority to drive Taxi, Hire and Light Bus which all are public service vehicles and the fourth page of the record shows the driving offences which the Plaintiff committed in 2011 and 2012. In consideration of the facts aforesaid, I truthfully contend that the Plaintiff would not have been able to obtain a public service vehicle driving licence if his vision was impaired or remained impaired as he alleges."

18.	The medical report dated 3/12/09 state that plaintiff was examined for a second opinion and the details of the first opinion was not revealed either in this application or in the affidavit verifying list so documents already filed in this action. This is the only document listed in the Plaintiff's list of documents and this create a doubt as to the reason of not producing the first opinion and the bona fide of the Plaintiff's application. The Plaintiff needs to submit all documentary evidence and if he refrains some, that can be held adversely in this application in the analysis of the evidence before me, as there was evidence of Plaintiff being able to drive a taxi.

19.	Before coming to the injury and the quantum of damages the primary consideration is that the Plaintiff should satisfy that he will be successful in this action. The prayers in the statement of claim are for general damages for pain and suffering and also for special damages and economic loss. All the claims are based on the alleged negligence on the part of the Defendant.

20.	The Plaintiff has cited the case of Abdul Razak V Ramesh 1979 25 FLR 01 but in that case the Plaintiff was awarded compensation on the basis that the alleged negligent act was encouraged by the employer and at page 4 it was stated as follows

'My reasons are that the defendant not only tolerated but encouraged the unsafe practice of starting the fire with rag soaked in paraffin. It was practice likely to induce indifference or careless approach on the part of employees to the possibility of danger from the use of explosively volatile liquids. The use of petrol soaked rag instead of paraffin could have been the next step in an unsafe practice. The Plaintiff went even further and poured petrol on to the stubborn fire. I do not think that that the plaintiff should be barred in the circumstances from receiving some compensation. It would, I think, be unfair to the defendant to award the full amount of compensation and…..' [emphasis is mine]

21.	I do not have such evidence to show that the Defendant has encouraged any such behaviour. How the accident happened needs more elaboration and Plaintiff without details alleges negligence. The Plaintiff state that he was not provided with eye protective glasses, but the Defendant state that such safety gear were provided, indicating that I cannot come to a conclusion as to the truth of such allegations upon the evidence before me. 

D.	CONCLUSION

22.	The Plaintiff has failed to satisfy the court that the Plaintiff would be successful in this action. The details of the accident are not revealed and upon the available evidence I am not satisfied that Plaintiff would obtain judgment in his favour. The Plaintiff's action is based on negligence. There are disputed facts as to the safety standards including the protective glasses. The Plaintiff state he was not provided with such glasses but the defendant state he was granted. Even if such glasses were worn whether it can withstand such an accident and protect the eye is another issue. The inertia of the wooden stem will determine the nature of the injury. On the available evidence it is not clear as to who was to be at fault.1979 25 FLR 01 Abdul Razak v Ramesh cannot be applied to this action as there was an unsatisfactory practice of using paraffin to ignite fire in workplace, where the employee poured patrol to coal and wood fire thinking it was diesel. In the said scenario it was held that the employer has tolerated or encouraged the unsafe practice, but I do not have such evidence of any unsafe practice being tolerated or encouraged by the Defendant. In the circumstances I reject this application for interim payment. The cost of this application will be cost in the cause.

F. 	FINAL ORDER

a. 	The application for interim payment is struck off.
b. 	The cost of this application is cost in the cause.
c. 	The registry is directed to separate all communications relating to interim payment including the ruling from the case file and not to be shown to a judge.

Dated at Suva this 17th day of September, 2012.

………………………………………….
Mr. Deepthi Amaratunga
Master of the High Court
Suva