Wati v SL Shankar Ltd [2008] FJSC 19; CBV0003.2008S (17 October 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0003 OF 2008S
(Fiji Court of Appeal No ABU0078 of 2006S)

BETWEEN:

KALA WATI
1st Petitioner

SMITA RAM
2nd Petitione

SANT RAM
3rd Petitioner

AND:

S.L. SHANKAR LIMITED
1st Respondent

RAM CHANDAR
2nd Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Monday, 13th October 2008, Suva

Counsel: Mr S. Maharaj for the Petitioners
Mr A. K. Narayan for the Respondent

Date of Judgment: Friday, 17th October 2008, Suva

JUDGMENT OF THE COURT

[1] On 2 March 1999 the third petitioner was driving a motor vehicle that struck a truck owned by the first respondent and driven by the second respondent.

[2] The accident injured the third petitioner and his two passengers, being the first petitioner, his wife, and the second petitioner, his daughter. All three claimed damages in a single proceeding in the High Court. The damages were assessed by Finnegan J in the High Court at $4,115 plus interest for the third petitioner; $40,000 plus interest for the first petitioner; and $60,000 plus interest for the second petitioner. Responsibility for the accident was found to lie equally with the two drivers. This led the trial judge to reduce the damages payable to each plaintiff by 50 per cent. Costs were summarily assessed against the respondents at $3,000.

[3] Two appeals were lodged in the Court of Appeal and they were consolidated.

[4] The respondents challenged the findings against them on liability and quantum: this appeal was dismissed on grounds that are no longer relevant.

[5] All three petitioners appealed but on the sole ground that the primary judge erred in reducing the awards in favour of the wife and daughter on the basis of the contributory negligence of the driver of their vehicle, the third petitioner. This appeal was upheld, but in circumstances that made their victory pyrrhic because of a contribution order made against the third petitioner, who was the main family breadwinner. He was ordered to contribute equally towards the burden of paying the now unreduced verdicts in favour of his wife and daughter entered against the respondents jointly. His obligation to do so would not have been covered by third party insurance because the first and second petitioners were his relatives (see Motor Vehicles (Third Party Insurance) Act, Cap 199, s 6).

[6] The claim for contribution was first propounded in the Court of Appeal in written submissions filed a few days in advance of the hearing. The respondents also filed a summons to amend the Defence to raise a counter-claim against the third plaintiff (the third petitioner in this Court) that he pay and/or contribute to any damages found payable by the defendants and/or the third plaintiff to the first and/or second plaintiff.

[7] The Court of Appeal (Pathik JA, Datt JA, Powell JA) acknowledged the general principle that parties are bound by the way they conduct proceedings at trial (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1). It was also stated that appeal courts have a discretion to allow new points of law to be raised, particularly where the new matter sought asserts a material error of law in the disposition of the proceedings below (for example where the alleged error of law relates to a point that is unanswerable: Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367). The Court acknowledged that different principles apply when a court is asked to exercise its discretion to bring proceedings or appeals outside of time limits.

[8] As to the particular application before it, the Court of Appeal correctly pointed out that any person liable in respect of any damage suffered by another may recover contribution from any other person liable in respect of the same damage, whether jointly with him or otherwise. The Court cited Halsbury's Laws of England 4th ed, vol 45, para 1235. The proposition correctly states the law in Fiji, because of the terms of s6 of the Law Reform (Contributory Negligence and Tortfeasors) Act, Cap 30.

[9] The nub of the Court of Appeal's reasoning was as follows:

"[49] Accordingly if the respondents had asked the trial judge to make the order for contribution now sought, the trial judge, having found Ram Chandar and Sant Ram equally liable for the accident, would have been obliged to make an order for 50% contribution. It may be that that is what the trial judge thought he was doing in a short-hand way when he, erroneously as this Court has found, reduced the general damages by 50%. However this is speculation.

[50] If the respondents are permitted to file the Amended Defence and Cross-Claim they will, therefore be successful in obtaining an order for 50% contribution against Sant Ram. The question is whether or not the respondents should be allowed to amend at this late stage.

[51] The respondents say that there is no prejudice to the appellants caused by the delay in making the application because if the matter had been pleaded at trial nothing could have been said against such an order, such an order following automatically once the trial judge apportioned liability between the two drivers.

[52] It follows that the amendment has overwhelming merit. Allowing the amendment does not require any fresh evidence or further hearing.

[53] The respondents say that the oversight in raising the matter at trial, whether by pleading or submission, must be seen in the context that the respondents denied liability completely. Be that as it may, delay in not raising the issue earlier in the appeal process, until 18 March 2008, is not explained

[54] The appellants oppose the amendment, which they say is made at the 11th hour. they say that they would be prejudiced because the appellants, Kala Wati [the wife] and Smita Ram [the daughter], would, by virtue of their family relationship with Sant Ram, would effectively have their damages halved.

[55] The prejudice referred to by the appellants is not prejudice in the relevant sense which has to be prejudice due to the delay in bringing the amendment, not just prejudice from the making of the orders sought in the amendment.

[57] The Court has a discretion as to whether or not to allow such an amendment and it can allow an amendment at any time. The question is whether the Court should.

.....

[59] [T]he Court's task in exercising its discretion whether or not to allow an amendment raising a new point of law is to give effect to the demands of justice by balancing, on the one hand, the entitlement of a party to have the case determined according to law and, on the other, the public and private interest in the proper conduct of the first instance proceedings: Burston v Melbourne & Metropolitan Tramways [1948] HCA 36; (1948) 78 CLR 143.

[60] In these proceedings that balancing act requires the Court to allow the respondents' proposed amendment. The point that is being raised is unanswerable, the litigation will not be extended and there is no prejudice in the relevant sense to the appellants.

[10] The Court of Appeal relevantly gave effect to its reasons by ordering judgment for the first and second petitioners against the respondents at the full rate determined by the trial judge plus interest. There was also an order for judgment for Ram Chandar against Sant Ram in the sum of $50,000 [being half the increased capital sum awarded to the first and second petitioners] plus interest. The respondents were ordered to pay the petitioners’ costs of the appeal because they succeeded on a ground not raised at first instance.

[11] The reasons set out above indicate that the Court of Appeal treated the respondents as having raised a point of law that could have been raised at first instance. In one sense this was the case. But, in truth, the respondents obtained judgment on a cause of action that only fully accrued when the original judgments in favour of the wife and daughter were doubled. The successful claim could have been propounded in separate proceedings brought after the Court of Appeal gave judgment, subject only to the unlikely possibility of the respondents being estopped by reference to the principles discussed in cases such as Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

[12] Contrary to the petitioners’ submissions, there was no difficulty stemming from the Limitation Act because (for limitation purposes) the respondents’ right to recover contribution is treated by that Act as having accrued when the respondents were held liable by Finnegan J and because the contribution claim only became barred if recovery action was not brought within two years of that date (see Limitation Act, Cap 35, s6). Finnegan J made his orders on 7 July 2006 and the Court of Appeal made its orders on 18 April 2008.

[13] The petitioners raise what they characterise as a jurisdictional objection to the effect that the respondents did not raise the counterclaim in a cross appeal filed in accordance with the Rules. But the Court of Appeal’s jurisdiction was duly invoked upon the filing of the two appeals that were consolidated. The Court’s power to dispose of the proceedings according to law was not dependent upon the precise form of the latest notice of appeal (see Court of Appeal Act, s17; Court of Appeal Rules, r22 (3) and (4)). The Court of Appeal’s power to allow the amendment of process filed in the court of trial is not in dispute.

[14] There is no merit in the petitioners’ submission that the Court of Appeal somehow exhausted its jurisdiction to permit the amendment and to make the ultimate contribution order by reason of having stated earlier in its reasons that the respondents’ appeal was dismissed. After all, the two appeals were consolidated and the orders pronounced at the end of the Court’s reasons proceed from the totality of those reasons.

[15] The petitioners were always entitled to procedural fairness, including an adequate opportunity to meet claims and arguments not previously ventilated. But they sought no adjournment and do not complain about the adequacy of the opportunity they had to meet the now critical point. After all, it was foreshadowed in written submissions and formulated in the summons seeking leave to amend the defence that was filed in the Court of Appeal.

[16] The petitioners complain about the exercise of discretion by the Court of Appeal. In effect, they reagitate the matters ventilated below. It is sufficient to state that we see no error in the manner in which the Court of Appeal addressed and resolved the late application to amend. The Court did not overlook the respondents’ absence of excuse for not having propounded the issue at first instance alongside the raising of the defence of contributory negligence that prevailed against the third petitioner. We agree with the Court of Appeal’s conclusion that the claim of prejudice raised by the first and second petitioners is not in itself the sort that would deflect an otherwise proper application to amend: here there was no prejudice of a procedural nature. As we have already pointed out, the Court of Appeal’s analysis was, if anything, generous in favour of the petitioners given that timely fresh proceedings could still have been launched for contribution that would inevitably have succeeded.

[17] Two matters of some generality were raised during the hearing. Neither has any bearing in the outcome, but each calls to be recorded in these reasons.

[18] First, as to the terms of the judgment ordered by the Court of Appeal. As indicated, the Court gave effect to the entitlement to contribution by ordering judgment for Ram Chandar against Sant Ram in the sum of $50,000 plus interest.

[19] The respondents’ entitlement to raise a counterclaim against the third petitioner for contribution as a concurrent tortfeasor stems from substantive right given by the Law Reform (Contributory Negligence and Tortfeasors) Act and the procedural right given by Order 15 r 2(1) of the High Court Rules. Nevertheless, the right of contribution remains inchoate unless and until the respondent actually meets more than his half share of his now established liability to pay damages to the first and second petitioners in the sums determined by the Court of Appeal (see Barclays Bank v Tom [1923] 1 KB 221; Andrews v Nominal Defendant [1963] SR (NSW) 110). In strictness, there should have been a declaration of entitlement, with liberty to apply for judgment when and if the second respondent pays more than half of the verdict sum: cf Andrews at 120 (albeit) that that case turned upon a special rule of court.

[20] Counsel for the respondents agreed that the practical situation was as we have indicated. Because of this and because the High Court has power to stay execution in part on the judgment against the third petitioner unless and until the second respondent actually pays more than half of the sums due to the first and second petitioners, we have determined that amending the form of the contribution order is unnecessary.

[21] The second matter concerns the position of the petitioner Smita Ram. She is an infant and sued by her father as next friend. Order 80 r 10 of the High Court Rules requires any money recovered on her behalf to be dealt with in accordance with the directions given by the Court and not otherwise. We were informed that it is the High Court’s practice to order that a verdict payable to an injured, infant plaintiff be paid to the Public Trustee.

[22] The petition should be dismissed with costs.

The Hon Justice Keith Mason
Judge of the Supreme Court

The Hon Justice Kenneth Handley
Judge of the Supreme Court

The Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:

Suresh Maharaj and Associates, Lautoka for the Petitioners
A K Lawyers, Ba for the Respondents