Mati v Vinesh [2018] FJHC 1063; HBC212.2018 (2 November 2018)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 212 of 2018

IN THE MATTER OF an application for leave to commence proceedings in which the limitation period has lapsed.

AND IN THE MATTER OF section 16 (3) & 17 (i) of Limitation Act 1971.

BETWEEN: INDU MATI of Solovi, Nadi, Self Employed Farmer.

Applicant/Plaintiff

AND: AJNESH VINESH of Togo, Nadi, and Occupation unknown.

Respondent/Defendant

Before : Master U.L. Mohamed Azhar
Counsel: Ms. J. Singh (L/A) for the Applicant/Plaintiff

Date of Ruling: 02. 11. 2018

RULING

01. The applicant and the intended plaintiff filed this ex-parte notice of motion on 25.09.2018 pursuant to section 17 (1) of the Limitation Act 1971 (the Act), seeking extension of time to bring an action for damages against the defendant for the injuries allegedly caused to her as a result of the road traffic accident occurred on 17.05.2015. The application is supported by an affidavit sworn by her. On the day the motion was listed for support, the legal aid counsel who represented the intended plaintiff sought leave of the court to file the written submission in support of the motion and the court allowed the application. Accordingly, plaintiff’s counsel filed the written submission supporting motion.

02. The proviso under section 4(1) of the Act clearovides that, an acan action in respect of personal injuries should be commenced within 3 years from the date on which the cause of action accrued. However section 16 of the Act confers the diionary power to the court turt to extend the time limit for actions in respect of personal injuries, upon fulfilling the certain requirements. For the court to consider the extension of time, the application shall be made in accordance with section 17 of the Act, which provides;

Application for leave of court

17.-(1) Any application for the leave of the court for the purposes of section 16 shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications which are made after the commencement of a relevant action.

(2) Where such an application is made before the commencement of any reny relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) to esth that cause of actioaction, apart from any defence under subsection (1) of section 4; and

(b) to fulfilrequits of subsectbsection (3) of section 16 in relation to that cause of action.

(3) Where such an applicati made after the commencement of a relevant action, the court may grant leave in respect of t of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-

(a) to establhat cause of actioaction, apart from any defence under subsection (1) of section 4; and

(b) to fulfil the reqents of suof subsection (3) of section 16 in relation to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 4.

(4) In this section, "relevant action", in relation to an application for the leave of the court, means any action in connection with which the leave sought by the application is required.

03. The above section stipulates that, whether application is made before or after the commencement of any action, the court may grant leave only if it appears to the court, on evidence adduced by or on behalf of the plaintiff, that it establishes a cause of action and it fulfills the requirements of section 16 (3) of the Act, if such an action were brought forthwith. The relevant sub-section that provides the requirements is as follow;

16 (3) The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which-

(a) either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period; and

(b) in either, was a date not enot earlier than twelve months before the date on which the action was brought.(Emphasis added).

04. The Act in sections 19 and 20 also provide the meaning of material facts relating to a cause of action and the facts of decisive character for further convenience. Those sections are;

Meaning of "material facts relating to a cause of action"

19. In sections 16 and 18 any reference to material facts relating to a cause of action means a reference to any one or more of the following:-

(a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

(b) the nature ornt of the pers personal injuries resulting from that neglig nuisance or breach of duty duty;

(c) the fact tha personal injurinjuries so resulting were attributable to tegligence, nuisance or brea breach of duty, or the extent to which any of those personal injuries were so attributable.

ign="center">Meaning of g of "facts of a decisive character"

20. For the purposes of sections 16 and 18, any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 22 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that, apart from any defence under subsection (1) of section 4, an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.

05. It should be noted that, though the Act gives meaning for several phrases used therein, the interpretation of these provisions seems to be notoriously difficult for the purpose of ascertaining the meaning which was intended to bear. In fact, the section 16 and 17 of the Act are the verbatim of Limitation Act 1963 (U.K.) The relevant provisions of that Act was considered in several English cases and the English courts have repeatedly been critical of the provisions of that Act. The House of Lords in Central Asbestos Co. Ltd. v. Dodd (1972) 2 ALL E.R. 1135 esedessed it displeasure over its drafting. In that case, Lord Reid said at page 1138ollows;
kquo>Normally one expects to be able to find at least some clue to the general purpose and pand policy of an Act by reading it as a whn thet of the circumstances which existed when it was was passepassed or of the mischief which it must have been intended to remedy. But here I can find none. The obscurity of the Act has been frequently and severely criticized; indeed I think this Act has a strong claim to the distinction of being the worst drafted Act on the statute book. But even so I cannot believe that it could have been so elaborately drafted if it had been intended only to have the very limited application for which the appellants contend.

06. Lord Pearson at page 1148 said that;

The provisions of s7(3) of the Limitation Act 1963 are notoriously difficult to construe. I think one must try to ascertain the general intention which presumably prompted these provisions and to envisage the task which confronted the draftsman.

07. Lord Salmon held at page 1159 thr>

This Act has been before the courts on many occasions during its comparatively short life. I do not think that there are many judgeshave had to consider it who have not criticized the wholly olly unnecessary complexity and deplorable obscurity of its language. It seems as if it were formulated to disguise rather than reveal the meaning which it was intended to bear.

08. However, Lord Denning M.R in Goodchild v Greatness Timber Co Ltd [1968] 2 All ER 2plained thed the operation of these provisions despite their obscurity at page 257 and held that;