Masivou v Singh [2000] FJLawRp 39; [2000] 1 FLR 124 (13 June 2000)

[2000] 1 FLR 124

IN THE HIGH COURT OF FIJI

MAIKELI MASIVOU

v

SUKH DEO SINGH
& JAGAT NARAYAN
t/a Diamond Express

High Court Civil Jurisdiction
Fatiaki, J
13 June, 2000
HBC0247/99

Extension of time in which to bring proceedings - whether the plaintiff had knowledge that death of infant daughter resulted from defendant's negligence or was attributable to defendant's negligence - whether plaintiff had facts available to plaintiff to issue proceedings before 3 year limitation period expired - Limitation Act (Cap 35) ss4(1), 16(3) and 17(2); High Court Rules O.1 r.10 and O.18 r.21

The plaintiff's daughter died from personal injuries sustained as a result of alleged negligence when she was hit by a motor vehicle driven by the First defendant as she crossed a road from behind a parked bus. The First defendant driver was charged with causing death by dangerous driving but convicted of careless driving. The plaintiff applied more than a year after the statutory period of limitation had expired and four months after the grant of Letters of Administration.

Held - The object of the Limitation Act in ss16 and 17 is to ameliorate injustices in individual cases caused by imposition of a rigid limitation rule. The combined effect of ss16(3) and 17(2) of the Limitation Act is to postpone the running of the statutory time limit so long as plaintiff remains ignorant of material facts relating to the cause of action.

The plaintiff had sufficient knowledge of material facts to justify issuance of civil proceedings within the limitation period, bar the manner in which the first defendant drove his motor vehicle.

Obiter Dicta: there is a need to reform existing laws to simplify requirements and provide court with over-riding discretion.

Cases referred to in judgment
Appr Fiji Electricity Authority & Attorney-General v Miriama Ganilau [1999] ABU 50/97

[note: appl in Amelia Tuvalili v Samsun Subramani & James Narayan [2000] HBC0224D/99L 4 October 2000]

Robinson Prasad for the plaintiff
Viren Kapadia for the defendants

13 June, 2000.

JUDGMENT

Fatiaki, J

This is an application under the Limitation Act (Cap. 35) ('the Act') for an extension of time within which the plaintiff might be permitted to issue proceedings to recover damages for the loss of the life of his infant daughter who died as a result of a motor vehicle accident that occurred on the 1^st of June 1995. The first defendant was the driver of the vehicle at the relevant time and the second defendant the registered owner.

The particular circumstances in which the accident occurred are summarised in the following passages of the trial magistrate's judgment which reads (at p.4):

'This case before this Court is indeed a tragic one, where a young girl of 5 years was cut off from this life because of momentary inattention, by the mother, who was busy carrying a small baby at the time of accident.

This should be a lesson to mothers, that the children when accompanied by their mother to town, must be extra-careful with their movement.

This young child (the deceased) did not wait for her mother and ran across the road alone and met her death when she was run down by the defendant's vehicle which was travelling from Nausori to Suva. As the mother told the court, that the deceased ran across the road from behind the parked bus.

For the above reason the accused is guilty of Careless Driving. He ought to slow his vehicle when approaching a parked vehicle and a reasonable man should expect young children and old people to cross the road without giving warning. A reasonable man should foresee this possibility.'

Section 4(1) of the Act imposes a three (3) year limitation period 'in the case of actions for damages for negligence ... where the damages claimed ... consists of or includes damages in respect of personal injuries to any person' [See also: Section 8 of the Compensation to Relatives Act (Cap. 29)].

Quite plainly the plaintiff's cause of action accrued to his infant daughter's estate on the date of her death namely, 1^st June 1995 and expired on or about the 1^st of June 1998. The present application however was not filed until almost a year later on 19^th May 1999 some four (4) months after Letters of Administration were granted to the plaintiff.

Prima facie therefore unless the plaintiff can persuade the court to grant him an extension of the statutory time limit, any claim for damages for the negligent loss of his infant daughter's life must be considered statute-barred.

In this latter regard Section 17(2) of the Act relevantly provides:

'Where ... an application (for extension of time) is made before the commencement of any relevant (Court) 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 ... 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 evidence to the contrary, be sufficient -

(a) to establish that cause of action, apart from (any limitation) defence; and

(b) to fulfil the requirement of subsection (3) of Section 16 in relation to that cause of action.'

Section 16(3) provides:

'...., the requirements of this Sub-Section 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 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 case, was a date not earlier than twelve months before the date on which the action was brought.'

The combined effect of the above provisions in my view, is to postpone the running of the statutory time limit so long as the plaintiff remains ignorant of 'material facts relating to the cause of action' (See: Section 19) or 'facts of a decisive character' (See: Section 20).

In seeking to discharge the onus placed on him the plaintiff deposed that his five (5) year old daughter was struck down by a motor vehicle driven by the first defendant and died as a result of her injuries on 1^st June 1995; that the first defendant was subsequently charged in August 1995 before the Nausori Magistrates Court with an offence of Causing Death by Dangerous Driving and, after trial, was eventually convicted of Careless Driving on 21^st September 1998 (i.e. after the limitation period had already expired).

This was undoubtedly a difficult case for the trial magistrate involving as it did an infant child running across a road from the rear of a stationary bus from which she had alighted. Indeed it appears that prior to the trial and, on the trial magistrate's recommendation, the case was unsuccessfully referred to the Office of the Director of Public Prosecutions to consider a reduction of the charge.

However and despite that earlier indication, the trial magistrate convicted the 1^st defendant. If I may say so the trial magistrate's jurisdiction to enter a conviction for Careless Driving is not entirely clear but no appeal has been lodged against the conviction of Careless Driving and presumably it still stands.

The 'importance' of the first defendant's criminal conviction is made clear in the plaintiff's affidavit in support where he deposed (at para. 11):

'... the reason why I could not bring this action earlier was that I was advised (by an undisclosed person) that until the Police case against the 1^st defendant was finalised and it was proven to the Court that the 1^st defendant was negligent, I could not institute a civil action against the 1^st defendant. By the time the Police case against the 1^st defendant was finalised 3 years had lapsed ...'

In this regard it is noteworthy that the plaintiff's draft Statement of Claim does not seek to rely upon the 1^st defendant's criminal conviction in support of the allegation of negligence against him (See: Order 1 r.10 of the High Court Rules read with Order 18 r.21).

Additionally, the plaintiff deposed that he lived in an inaccessible and remote area of the country which made it '... very difficult ... to come to Suva and consult a solicitor and obtain advice and guidance'. Section 21 also bears some mention in so far as it provides that:

'... a fact shall, at any time, be taken to have been outside the knowledge, actual or constructive, of a person if, but only if -

(a) he did not then know that fact.'

Learned counsel for the plaintiff in supporting the application forcefully submitted that 'until the criminal charge was decided against the defendant, the deceased's death could not be attributed to the defendant's negligence.' This was so, in counsel's submissions, because of 'the contentious fact' that the deceased was at the relevant time an infant in the company of her mother who had crossed the road alone and was tragically struck down by a car driven by the defendant and, although a criminal charge had been laid against the 1^st defendant, presumably because the police considered that he was at fault, the 1^st defendant had denied the charge.

In counsel's submission, 'whether the 1^st defendant was at fault or not was a material fact within Section 19(a) & (c)', insofar as, given the particular circumstances of the case and the age of the deceased, it could not be said with any certainty or conviction that the deceased died as a result of personal injuries sustained as a consequence of the defendant's (or for that matter, anyone's) negligence.

What's more Counsel argues, unless and until there had been a successful prosecution of the 1^st defendant, there was no reasonable possibility of the plaintiff assessing or determining (even with appropriate legal advice) that, in the words of Section 20, 'an action would have a reasonable prospect of succeeding and resulting in the award of damages sufficient to justify the bringing of the action.'

Indeed, if I may say so, given the learned trial magistrate's judgment and defence counsel's submission that 'this was a case of significant contributory negligence if negligence was established on the defendant's part', even now, serious consideration must be given to whether or not any action would be justified.

Notwithstanding that, the submissions of plaintiff's counsel boils down to the question: Whether or not before 3 years had expired the plaintiff had 'knowledge (actual or constructive)' that the death of his infant daughter 'resulted from (the defendant's) negligence' or 'were attributable to (the defendant's) negligence'? If the answer is yes he had the necessary knowledge then plainly any action would be statute-barred, and, if the answer is no he didn't, then leave ought to be granted to him to proceed.

In this regard plaintiff's counsel cited from the judgment of the Court of Appeal (U.K.) in Nash v. Eli Lilly & Co. (1993) 4 All E.R. 383 where the Court was considering the meaning of 'knowledge' in the context of the U.K. equivalent of our Section 19 and where the Court:

'Held (inter alia): ... A firm belief held by the plaintiff that his injury was attributable to the act or omission of the defendant, but in respect of which he thought it necessary to obtain confirmation from experts, would not be regarded as knowledge until the result of his inquiries was known to him, or if he delayed in obtaining that confirmation, until the time when it was reasonable for him to have obtained it. Knowledge of the essence of the act or omission to which the injury was attributable was required but not proof of knowledge of the terms in which it would be alleged that the act or omission of the defendant constituted negligence ...'

In the often cited case of Davis v. Ministry of Defence (1985) Times 7 August May L.J. said:

'Knowledge is an ordinary English word with a clear meaning to which one must give full effect: 'reasonable belief' or 'suspicion' is not enough.''

Furthermore his lordship in rejecting a submission that 'attributable' [as it occurs in Section 19(c)] meant 'caused by' construed it as meaning 'capable of being attributed'. In other words the act or omission of the defendant must be a possible cause of the injury as opposed to a probable cause.

Finally reference may be made to the judgment of Lord Donaldson of Lymington M.R. in Halford v. Brookes (1991) 1 W.L.R. 428 where his lordship said at p.443:

'Knowledge clearly does not mean know for certain and beyond possibility of contradiction. It does, however, mean know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.'

[Cited with approval by the Fiji Court of Appeal in F.E.A. & A.G. v. Miriama Ganilau Civil Appeal No. 50 of 1997 (unreported).]

Defence counsel in opposing the application points to the paucity of the evidence or facts deposed in the plaintiff's affidavit and in particular, counsel highlighted para. 11 of the affidavit, wherein the plaintiff sets out his reason(s) for not issuing proceedings within the limitation period, and submits that '(it) ... is quite inadequate as an evidential basis to (qualify) as being facts of a decisive character'.

Needless to say counsel expressed some disquiet at any waiver of a limitation period on the basis of allowing a potential plaintiff to await the outcome of criminal proceedings which, as in this case, might only eventuate after the statutory limitation period had expired, and, what if there had been an acquittal altogether?

There is much force, on policy grounds, for the submission advanced by defence counsel but, whilst acknowledging that, the decision of this Court must ultimately turn on the meaning and effect of the provisions of Section 16 & 17 of the Limitation Act (Cap. 35) which undoubtedly have, as their primary purpose, the amelioration of the injustices that can occur in individual cases by the imposition of a rigid limitation period.

In this case plaintiff's counsel concedes that there can be no doubt that the plaintiff's daughter died from being hit by a motor vehicle driven by the 1^st defendant and that these 'material facts' would have been within the (actual) 'knowledge' of the plaintiff soon after the accident had occurred and certainly by the time the defendant was charged.

It would also have been obvious (perhaps with 'appropriate advice') that any one or indeed all of three (3) possible persons could have been responsible for the accident to some greater or lesser degree namely, the deceased infant, and/or her mother, and/or the driver of the motor vehicle involved in the collision. What's more the only act or omission of the 1^st defendant driver to which the accident could reasonably be attributed would be the manner of his driving of the motor vehicle.

In light of the above I am reluctantly but unavoidably driven to the firm conclusion that, within the limitation period, the plaintiff had sufficient knowledge to justify the issuance of civil proceedings and accordingly the application fails with costs to be taxed if not agreed.

Having so-ruled in this case I too would join Scott J. in urging the relevant authorities to consider reforming the existing law not only in simplifying its existing requirements but also in providing the court with an over-riding discretion in the matter.

Application refused with costs to be taxed if not agreed.

Marie Chan