Q.B.E Insurance (Fiji) Ltd v Prasad [2011] FJSC 14; CBV0003.2009 (18 August 2011)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0003 OF 2009

BETWEEN:

Q.B.E. INSURANCE (FIJI) LIMITED
Petitioner

AND:

RAVINESH PRASAD
Respondent

Coram: Hon. Chief Justice Anthony Gates, President of the Supreme Court
Hon. Justice William Marshall, Justice of the Supreme Court
Hon. Justice William Calanchini, Justice of the Supreme Court

Counsel: Mr F Hanif for the Petitioner
Mr R Chaudhary for the Respondent

Date of Hearing: Wednesday, 12th October 2010

Date of Judgment: Thursday, 18th August 2011

JUDGMENT

Anthony Gates, President

1. I agree with the judgment and reasons of Justice William Marshall and with Justice William Calanchini on the power of the Supreme Court to award interest. I agree with Justice William Marshall's conclusion that the Petition for special leave of QBE Insurance (Fiji) Limited should be refused. I agree also with the proposed orders. I agree with the criticism of Justice William Marshall in respect of the Petitioner's Grounds of Appeal in this Court. I hope that practitioners will take note of these remarks.
   

Justice William Marshall

2. This is another case where an insurer seeks to avoid paying out under the statutory liability imposed in the first instance by the United Kingdom in the Road Traffic Act 1934 section 10 which is section 11 in the Fiji Motor Vehicles Third Party Insurance Act, Cap 177. What was legislated in the United Kingdom in 1934 was that the third party can recover directly from the insurance company even if the insured would be unable to enforce the contract of insurance entered into with the insurance company because the insured or his driver was in breach of a condition of the third party liability policy. However where the insurer has to pay out to the third party under the statutory liability and the insured is in breach, the insurer can recover the amount paid to the third party from the insured. The interests of third parties are accorded priority by the statute and the insurance company is relegated to a right of recovery against the insured who is in breach of contract. This means that the insurer has to calculate his premium on the basis of primary liability under statute to the third party. No doubt in most cases the calculation will be made that the insured is unlikely to be able to reimburse the insurer.
   
3. When the present case was heard on 13th October 2010 the judgment of the Supreme Court in Sun Insurance v. Pranish Prakash Chand had not yet been delivered. When it was given on 15th October 2010 the matters relating to Section 11 of Cap 177 in Fiji were fully explained. This means that in the present case, had there been a breach of condition on the part of the insured which arguably entitled the insurer to avoid liability under the contract, it would on 13th October 2010 have been a matter of public importance that the law of Fiji be clarified. It was argued by Mr Hanif that the point decided in Sun Insurance would have arisen also in this case. So what this application for special leave turns upon is whether there was a breach of condition of a term of the policy on the part of the insured which arguably entitled the insurer to avoid contractual liability to the insured.
   
4. The scheme of section 10 of the 1934 Act in the United Kingdom, which is Section 11 of Cap 177 in Fiji, was to a limited extent a compromise between the legislators and the approved insurers. It has been superseded in practice in the United Kingdom and in all the major common law countries that adopted the United Kingdom legislation of 1930 and 1934. The main escape for the insurers from Section 10 (3) of the 1934 Act was, if there had been misrepresentation by the insured in his proposal form which could be held to avoid the policy. Experience proved that this escape provision would not often be available to be used by the insurers.
   
5. The scheme of section 10 (section 11 in Fiji) turned upon the third party suing the users of the vehicle in tort. If negligence of the driver and vicarious liability on the part of the owner were established, the owner (the insured) and the driver would have judgment entered against them. But a hard edged provision in the operating of section 10 (United Kingdom) statutory scheme was that the third party must give notice to the insurance company within seven days of issuing his writ against the tortfeasor and the owner. This allowed the insurer to do two things. Firstly under the scheme he could give notice that he intended to attempt to escape from liability to the third party arising from fraud or misrepresentation on the part of the insured when he incorrectly filled out his proposal for insurance. Under the statutory scheme, the insurer had to give notice of this attempt to the third party. The insurer has also to commence his action against the insured within three months of receiving notice of the third party claim. It is a certainty that non compliance with these requirements terminates the insurer's chance to explore this option.
   
6. The second action for the insurer to consider when he received notice within 7 days from the third party, related to getting involved in the negligence action. In many cases it would be possible for the insurance company, using its powers of subrogation, to adduce evidence and successfully argue that the alleged tortfeasor had not been negligent or that there was contributory negligence on the part of the Plaintiff. However in many cases the insurer would take the view that on the facts it was not possible to prevent the third party succeeding 100 percent. If so, judgment, often in default of defence would be entered for the third party Plaintiff. Particularly so if the tortfeasor had been convicted of careless driving in a court of criminal jurisdiction. The insurance company may also using its powers raise and argue issues such as the driver's permission or authority to drive which goes to the vicarious liability of the insured.
   

The Facts and Court Proceedings

7. In a traffic accident the driver of a twin cab truck with a tray on the back with registration number CI317 was 16 years old Amitesh Kumar Sharma. The vehicle was used in businesses including a coach building business operated by the Sharma family company. For some reason although used by the family coach building business the twin cab was owned and licensed and insured by Amitesh Sharma's mother Mrs Nirmala Sharma. She was probably a director of the company.
   

One of the company's employees, a driver, was one Mahendra Raj. Mahendra Raj was licensed and was a driver of heavy and other vehicles used in the company's business. From the document produced it is clear that Amitesh Sharma, born on 24th September 1980, was issued upon application with a provisional driving licence on the 18th of March 1997. This permitted him "to drive an unladen motor vehicle on any road". There were two provisos:

"Provided that:

(i) Except in the case of a motor cycle, he is accompanied for the purpose of instruction by a licensed driver sitting next to him; and

(ii) There is exhibited on the front and back of the vehicle, a plate bearing the letter 'L' in red on a white background in such a manner as to be easily discernible to other users of the road."

8. On the 2nd April 1997 Amitesh Sharma was working in the family business. Mahendra Raj drove him in motor vehicle CI317 to the family home where an item was dropped off. Then Amitesh Sharma and Mahendra Raj were to take CI317 to his father's coach building premises in Leonidas Street, a side street in Lautoka. At the house Mahendra Raj told Amitesh Sharma to drive since he was learning to drive. Mahendra Raj then sat in the nearside front passenger seat. There were no "L plates" displayed on the vehicle as required by law.
   
9. At about 5.45 p.m. Amitesh Sharma was driving in Vomo Street a main street in Lautoka and therefore to reach his father's coach building premises had to make a right turn into Leonidas Street. Amitesh Sharma turned on his traffic indicator to turn right. He then stopped to allow two or three cars travelling in the other direction to pass by.
   
10. After they passed, Amitesh Sharma thought it was clear to turn right. Unfortunately he did not see Ravinesh Prasad on his bicycle who like the cars was travelling in Vomo Street in the other direction. The rear of motor vehicle CI317 collided with Ravinesh Prasad and his bicycle. Ravinesh Prasad was seriously injured and his bicycle was a "write-off".
    
11. Rajesh Kumar was "jogging" along Vomo Street and immediately became aware of what had happened. He saw two men alight from the motor vehicle which had collided with the cyclist. They were concerned about Ravinesh Prasad. They took Ravinesh Prasad into the motor vehicle and straight to a nearby hospital. Rajesh Kumar offered to help but it was not needed.
    
12. Ravinesh Prasad was almost the same age as Amitesh Sharma and was working in a clothing factory and was riding home from work at the time of the accident.
    
13. Justice Finnigan first heard the action in Civil Action No. HBC 223 of 1997L substantively on 4th August 2005. That is about 8 years after the issue of the writ. There may have been difficulty in hearing matters in Lautoka in this period. However in normal cases such a delay is too long.
    
14. On 4th August 2005 Mr H A Shah appeared and then withdrew immediately because Amitesh Sharma and his mother Mrs Nirmala Sharma (the Defendants) had both migrated permanently to the USA. Obviously QBE Insurance (Fiji) Limited had not shown interest on the proceedings or taken up their rights of subrogation. They had been given Notice within 7 days of the issue of Ravinesh Prasad's proceedings as required by the scheme under section 11 of the Motor Vehicles (Third Party Insurance Act) Cap 177. However they chose to do nothing about it.
    
15. Counsel for the Plaintiff then sought that the defence be struck out which motion was immediately granted by Mr Justice Finnigan. The hearing proceeded very thoroughly on quantum of damages.
    
16. Mr Justice Finnigan on 11th August 2005 ordered damages as set out below. An order was sealed by the Deputy Registrar on 16th August 2005:
    

"IT IS ADJUDGED that the Defendants do pay the Plaintiff the sum of $96,425.00 made up as follows:-

General Damages [past]:	-$15,000.00
General Damages [futures]:	-$25,000.00
Interest on $15,000 at 6% from July 1997 until August 2005:	-$7,200.00
Loss of earnings capacity:	-$46,800.00
Special Damages	-$925.00
TOTAL	-$94,925.00__

AND Judgment is entered for the Plaintiff in the sum of $94,925.00 [NINETY FOUR THOUSAND NINE HUNDRED TWENTY FIVE DOLLARS] plus costs in the sum of $1,500.00 [ONE THOUSAND FIVE HUNDRED DOLLARS]."

17. The judgment of Mr Justice Finnigan of 11th of August 2005 describes serious and permanent head and facial injuries with permanent headaches and periods of painful inflammation of the left septum which is permanently blocked. There is clear evidence of loss of future earnings given the continuing disabling pain and suffering caused by the accident. Remedial surgery is not available in Fiji. This accident has blighted the life and earning capacity of a sixteen year old at the outset of his adult life and his working life. There has never been a complaint either from the Defendants in the 1997 action or the insurer on the issue of quantum of damages.
    
18. I am surprised to find that an application to set aside judgment was made in the 1997 action on 19th June 2006 was partially acceded to by Mr Justice Finnigan. It remains an unanswered question for me also, why since the Plaintiff was operating the statutory scheme of Section 11 of Cap 177 prompt action was not taken in late 2005 against QBE Insurance (Fiji) Limited. By that time they may have repudiated the claim. If they had not they should have been put on seven days notice to make up their mind.
    
19. This application of 19th June 2006 does not seem to bear any sign of involvement on the part of the insurance company. It seems rather that Mrs Nirmala Sharma (First Defendant) hoped that she might escape liability (and execution against property in Fiji) on the basis that she did not use the vehicle and had not authorized her son on this occasion to drive it. There is no evidence of QBE Insurance (Fiji) Limited being involved in this application.
    
20. The evidence always was that Mrs Nirmala Sharma had de facto allowed general use and control in respect of motor vehicle CI317 to the family company. No doubt the company through its authorised employees made the decisions as to which of them being legally able to drive CI317 on company business should do so. There is no doubt that the motor vehicle CI317 was occupied by Amitesh Sharma and Mahendra Raj on 2nd April 1997 and that they were engaged on company business. They were both legally able to drive. Mahendra Raj was a senior employee. Since Amitesh Sharma had recently taken out his learner's driving permit and was working in the business of the family company it was in the family company's interest that he learn to drive and then become a "full" driving licence holder without unnecessary delay. Since Mahendra Raj was a very experienced driver he was well qualified to supervise Amitesh Sharma's driving sitting in the front passenger seat.
    
21. Although Mr Justice Finnigan found nothing new other than assertion and nothing that would likely lead to a successful outcome for Mrs Nirmala Sharma, on 5th July 2006 after a hearing Mr Justice Finnigan allowed the liability to be re opened by adjourning the application until the evidence on liability was heard.
    
22. Since he had pleaded "guilty" to careless driving in the Magistrates Court, it was inevitable in view of the evidence to be adduced at the hearing of 7th August 2006 that Amitesh Sharma would be found liable to the Plaintiff Ravinesh Prasad in tort. But if the owner of motor vehicle CI317, Mrs Nirmala Sharma, the First Defendant, could succeed in establishing that she had not permitted her son to drive motor vehicle CI 317 on the day of the accident she would not be a user of the vehicle through her permitted driver and would not be vicariously liable for the tort of her son Amitesh Sharma. At one time her argument seemed to be that Amitesh Sharma had not been accompanied by the very experienced driver Mahendra Raj, who had passed away by 2006. But all the evidence was against this including the independent witness Mr Rajesh Kumar.
    
23. Looking ahead to the liability of QBE Insurance (Fiji) Limited, if Mrs Nirmala Sharma was not vicariously liable as a "user" through her son being a permitted driver, that would mean that the insurer would not be liable under the policy for the negligent driving of Amitesh Sharma causing serious injury to a third party. Now in the Supreme Court QBE Insurance (Fiji) Limited plead that on the facts Amitesh was not authorised to drive and the finding of fact of Mr Justice Finnigan should be overturned in these proceedings.
    
24. In his judgment of 22nd August 2006 Mr Justice Finnigan found the facts as stated above. He then considered whether Ravinesh Prasad might have contributed to the event by not having lights on his bicycle. The learned judge concluded:
    

"However, it was not yet dark and the Plaintiff on his bicycle was there to be seen. The Second Defendant turned his vehicle into the path of the moving bicycle and when he did so the bicycle was very near to where he steered his vehicle because almost instantly the collision occurred. He failed to see another road user into whose path he was turning. That is my clear finding. There was no contribution in negligence by the Plaintiff."

25. In his judgment upon permission or authority Mr Justice Finnigan first of all reviewed the evidence of Mrs Nirmala Sharma and her son Amitesh Sharma. He found that Mrs Nirmala Sharma was not truthful and was evasive. Her son's evidence was found to be truthful on this issue.
    
26. I now set out the reasoning on this issue of Mr Justice Finnigan:
    

"Was the Second Defendant Driving with Proper Authority?

[10] The facts as I see them are these. The vehicle though registered in the name of the First Defendant was used freely by her husband for the purposes of his business. His employee was driving the vehicle that day and the clear suggestion is that this employee was permitted by either husband or wife or both to drive the vehicle. He felt he had authority to give the Second Defendant some driving practice while he himself was using the vehicle for an authorised journey from the husband's business to home and back. His employer's son was with him. The son had previously driven the vehicle with the approval of one or other of the parents. Nobody has given evidence that for some reason on this particular day neither mother nor father would have permitted something which they both had permitted previously.

[11] Counsel for the Defendants invited me to make my decision by reference to Chandra v. Narain Civil Appeal ABU0051 of 1996S judgment 14 November 1997 (FCA). I do so, and ask myself the question, has the presumption of agency that arises from the relationship between the First Defendant and the Second Defendant and from the evidence about who had authority to drive the vehicle been rebutted by the Defendants?

[12] There was no evidence from either Defendant that the First Defendant disapproved of the action of the husband's employee handing control of the vehicle to the son to do what the son had previously done in the vehicle with his parents' authority. The First Defendant simply stated over and over that on that day she did not give authority for that journey. Had this collision not occurred, what does the evidence reveal she would have done about her son's driving the vehicle? Nothing. Did she give evidence that she disapproved it? No. Is there any evidence that her husband disapproved what his employee had done? No. Is there any evidence that either of them would have refused permission for the Second Defendant to drive the vehicle on that day when it was being driven between the business and the residence and back? No. There is no evidence upon which to build any rebuttal of the presumption of agency. To the contrary, the Second Defendant was driving the vehicle to get supervised driving practice which was something that both his parents normally permitted him to do. I can only find that he was an authorised agent of the actual owner of the vehicle which may have been both his parents and of the registered owner who was his mother the First Defendant.

Conclusion

[13] Thus I must find on the merits that the Plaintiff's claim in liability is made out against the First Defendant as well as the Second Defendant. My substantive judgment of 11 August 2005 can only be affirmed."

27. This is a case where the trial judge had the advantage of hearing and seeing the witnesses examined and cross-examined. It is not a case depending on inference to be drawn from admitted evidence. While there are many leading cases of high authority on the point, in my opinion, the words of Lord Reid in the House of Lords in Benmax v. Austin Motor Company Ltd (1955) 1 All AER 326 at 328 and 329 are the most applicable to the present case and the judgment of Mr Justice Finnigan set out above.
    

"Apart from the cases where appeal is expressly limited to questions of law, an appellant is entitled to appeal against any finding of the trial judge, whether it be a finding of law, a finding of fact or a finding involving both law and fact. But the trial judge has seen and heard from the witnesses, whereas the appeal court is denied that advantage and only has before it a written transcript of their evidence. No one would seek to minimise the advantage enjoyed by the trial judge in determining any question whether a witness is, or is not, trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that. The trial judge may be led to a conclusion about the reliability of a witness's memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is, and should be, slow to reverse any finding which appears to be based on any such considerations."

28. In my view Mr Justice Finnigan cannot be faulted on his analysis and conclusions. Thus not a case where an appeal court could have doubts about the correctness of the first instance finding on this point. In any event this point is only available on an appeal in the action in which the judge at first instance made the finding of fact.
    
29. It should be noted that QBE Insurance (Fiji) Limited could have used their subrogation powers to ensure that an appeal by Mrs Nirmala Sharma was entered from Finnigan J's judgment to the Court of Appeal. If Mrs Nirmala Sharma did not succeed in the Court of Appeal there could have been an appeal by way of petition for special leave to the Supreme Court. No appeal was ever filed from Finnigan J's judgment of 22nd August 2006. I consider below whether the intention of the statutory scheme under section 10 of the 1934 Act (in Fiji section 11 of Cap 177) was that the insurance company could refuse to pay the successful third party in the tort action, compelling an action by the third party against the insurer. Further I consider below whether the insurer in such an action has locus standi under the statutory scheme to require the Court hearing the action by the third party against the insurer to act as an appeal against the findings of fact and law made in the tort action.
    
30. It is not surprising that when the present proceedings in Civil Action No. HBM 27 of 2006 were heard at first instance before Mr Justice Jiten Singh, the insurer did not advance that Amitesh Sharma was uninsured under the policy because he had not been permitted to drive the vehicle by the insured person. The insurer must have held the view that the "no authority" issue on the facts of the case and of the hearing before Mr Justice Finnigan was unarguable.
    
31. The same position was taken in the Court of Appeal by the insurer. There was no argument advanced that Mr Justice Finnigan was wrong in concluding that Amitesh Sharma had been authorized or permitted to drive by his mother the insured person on 2nd April 1997.
    
32. The first time the insurer raised the "no authority" argument was in paragraph 7G(ii) of the Petition for Special Leave. Neither then, nor in their written submissions did the insurer indicate that the point was neither raised nor dealt with at First Instance or in the Court of Appeal. Neither in the Petition nor in their written argument did the insurer refer to the findings of fact stated above by Mr Justice Finnigan or state that they were inviting the Supreme Court to overturn a judge's finding of fact in a new action when that judge had heard and seen the witnesses and then come to a well reasoned conclusion on the facts under consideration. Neither in their Petition did the insurer refer to the fact that they had failed to use their powers to appeal the First Instance judgment in the tort action and the judgment of Finnigan J of 22nd August 2006.
    
33. The way in which appeal ground 7G(iii) is pleaded is further undesirable in another way. It states and I set it out in full:
    

"7(G) The Learned Justices of the Court of Appeal erred in failing to find that the Petitioner was entitled to avoid the Policy on the grounds of the following breaches:

(i) that the condition of the Policy was breached by the driver of the Motor Vehicle Registration No.CI 317 by contravening the provisions of his learner's permit;

(ii) the First Defendant in Civil Action No.223 of 1997 accepted that the driver of Motor Vehicle Registration No. CI 317 did not have her permission to drive the vehicle, in breach of Clause 6(b) of the Policy."

34. But it had not been put to the Court of Appeal either in the Notice of Appeal or in the insurer's argument, that the Court of Appeal should firstly, find (contrary to Finnigan J's express finding) that Amitesh Sharma was uninsured when driving without the permission of policy holder and insured person who was his mother. Secondly, the Court of Appeal had never been invited to consider and find that Amitesh Sharma's non permission was a breach of 6(b) of the Policy, entitling the insurer to repudiate liability under the policy. So it is misleading to say: "the Court of Appeal erred in failing to find (etc)."
    
35. Any pleader of grounds of appeal must:
    
    1. only include matters that are factually correct in stating a ground.
       

2) where it is the case, state that he wishes to raise a new ground of appeal for the first time in the Supreme Court of Fiji which is the Court of Final Appeal.

3) state that in the tort action (which is part of the section 11 scheme) Mr Justice Finnigan had found as a fact that the insured had permitted and authorized the driving of the tortfeasor on 2nd April 1997 and that there had been no appeal from this finding.

4) Justice Finnigan had in finding the insured liable for her son's tort found, in effect, Amitesh Sharma was insured under this policy. Any pleader should have stated that he wished the Court to overturn a final judgment based on a judge's finding of fact: the pleader should also have explained how a second chance in a new action to contest factual issues could arise within the statutory scheme.

36. It should be clearly stated that the legal framework enacted in the United Kingdom in 1934 amending the 1930 legislation, provided a transparent scheme. It is a scheme in which, if the insurer wishes to intervene in the tort proceedings or in the question of the permission of authority of the tortfeasor to drive the vehicle he must do so in the tort proceedings. After all whether the owner is vicariously liable is the other side of the same coin as to whether the owner as insured policy holder is covered by insurance in respect of third party liability for the event or accident. If the insurer wishes to appeal he can use the powers of subrogation to do so. The insurer did not appeal in this case. The judgment of Finnigan J became final judgment on all the issues therein decided.
    
37. These issues cannot be re raised if the insurer instead of paying out, requires the successful plaintiff in the tort proceedings to re engage with the same issues in his statutory claim and action against the insurer. After all the whole point of section 10(2)(a) (In Fiji Cap 177 section 11(2)(a) ) is that the third party must give notice to the insurer of his action in tort within 7 days of its commencement.
    
38. It is said Mrs Nirmala Sharma applied to reopen the case before Finnigan J because she did not wish execution against her property. But surely she and her solicitor knew that she was insured and that the Plaintiff had given notice to her insurers of his intention to have the insurer pay his damages under the statutory scheme. It is strange in any event that at this point the insurer was not openly involved in the tort proceedings. Surely theirs was the main interest to be served. If the owner was found not to have permitted her son to drive that would mean that his mother was not vicariously liable as a user. That would also mean that Amitesh Sharma was a lone uninsured tortfeasor. The insurer would not be liable under the policy.
    
39. Since the evidence at trial on 7th August 2006 was so clear that Amitesh Sharma was accompanied and supervised by the experienced Mahendra Raj, the following passages in report of insurance investigator Mr Panapasa Matailevu's document of 15th August 1997 raise a lot of unanswered questions. This, in the handwriting of Mr Matailevu, records Amitesh Sharma's answer to his questions. The following extracts are of interest:
    

"Q2. Can you explain as to how accident happened?

A2. I was driving our company van CI317 along Vomo Street on 2/4/97 at about 5.45 p.m. I was travelling alone. ...

... As I had turned to Leonidas Street I heard a loud bang and I immediately stopped the truck to check what had happened. It was then that I realized that a Cyclist Ravinesh who was travelling on Vomo Street from the opposite direction had bumped the left side of the tray of the van. I saw that Ravinesh was hurt. My uncle namely Chetty arrived immediately after he then drove the van CI317 and we rushed Ravinesh to Lautoka hospital ...

...Q10. Who is the owner of CI317?

A10. My mother Nirmala Sharma who is a Director with my father Jitendra Sharma of our family company United Coach Builders.

Q11. Did your mother allow you to drive the van CI317?

A11. Yeah. ...

... Q14. Was any licensed driver travelling with you?

A14. No.

Q15. Was "L" plates displayed on the vehicle?

A15. No, since I was just coming from home back to our garage which is only a very short distance."

40. At trial we have three witnesses all swearing on oath that there were "two boys" in the cab at the time of the accident. The three witnesses were Amitesh Sharma, Mrs Nirmala Sharma and the independent witness, the "jogger" Mr Rajesh Kumar. Presumably "Chetty" is Mahendra Raj. Ravinesh Prasad, the third party, is indeed fortunate that Chetty should be so psychic as to be able to turn up exactly at the moment an unpredictable accident happened so that Ravinesh Prasad could immediately be driven to hospital by him.
    

If in fact Amitesh Sharma had been driving unsupervised -
would it have made any difference?

41. In the 1930 Road Traffic Act section 36(1) (which is section 6(1) in Fiji's Cap 177) it says:
    

"36 – (1) In order to comply with the requirements of this Part of this Act, a policy of insurance must be a policy which –

(a) ...

(b) Insures such persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle on a road."

The policy in this case defines the persons or classes of person insured as follows:

"6. PERSONS OR CLASSES OF PERSONS ENTITLED TO DRIVE AND INSURED UNDER THIS POLICY

(a) The Owner, and

(b) Any person who is driving on the Owner's order or with his permission:

Provided that the person driving holds a licence permitting him to drive a motor vehicle ... and is not disqualified for holding or obtaining such a licence."

42. So the driver, if he is driving with the permission of the owner and if he holds a licence permitting him to drive is covered in respect of any bodily injury to any person caused by or arising out of the use of the vehicle on a road.
    
43. Whether it is a full licence or a learner's licence it matters not that at the time of causing the bodily injury, the driver was committing a criminal offence. Whether the tortfeasor holds a full licence or a learner's licence it is often the case that the licence holder commits the criminal offence of careless driving at the time when he causes the bodily injury to the third party.
    
44. The words in standard learner driver permits in Fiji are set out in paragraph 7. These provisos merely set out that in addition to all the other driving offences which the holder must or should not commit, there are two offences parasitic and unique to the holder of a learner driver's permit. These two offences are 1) driving unsupervised and 2) not displaying "L" plates. The words are in the Permit to draw the attention of the learner driver to these very relevant driving offences.
    
45. It is to be noted that at no time in these two sets of civil proceedings under scrutiny has the fact the no "L Plates" were displayed been mentioned. This is an offence on the part of Amitesh Sharma and it seems he was summoned in the Magistrates Court in respect of it. The erroneous logic that an "L driver" is no longer a holder of a driving permit if he commits the offence of driving unsupervised must apply in the same way in respect of the offence of driving without displaying "L plates". Yet this point is never taken by the insurer or by the owner of the vehicle.
    
46. The position is that the commission of traffic offences by a tortfeasor driving on a public road has never been held to have the effect of removing or vitiating the insured owners permission to drive or of somehow making it that the driver does not "hold" a valid driving licence. This universal rule applies to "learner" driver offences in the same way as it does to any other offences committed by drivers and to "L drivers" and to full licence holders in the same way.
    
47. In the Civil Action against the insurer HBM 27 of 2006 the judgment of Mr Justice Jiten Singh was delivered in December 2007 with some minor errors corrected in a supplementary judgment in January 2008.
    
48. Justice Jiten Singh expressed skepticism as to whether there was an arguable defence. He said:
    

"The plaintiff has established that the judgment relied upon was against a person whose liability was covered by the terms of the policy. The setting aside of the judgment will serve no purpose. On the material before me I remain unpersuaded that the insurance company even has an arguable defence let alone a defence which carries with it any degree of conviction or prospect of success."

49. Justice Jiten Singh was also critical about the points raised. He described it as "a disturbing argument". He said:
    

"The defendant's arguments that the judgments of Justice Finnigan in Civil Action 223 of 1997 between Ravinesh Prasad v. Nirmala Sharma and Amitesh Kumar Sharma are judgments in personam and therefore not binding on the insurance company cannot be sustained in the face of clear statutory obligation imposed on the insurance company under Motor Vehicles (Third Party Insurance) Act. The insurance company is duty bound to pay the judgment sum to the plaintiff. The plaintiff is asking for what he is statutorily entitled to under Section 11(1) of the Act. This is a disturbing argument by an insurance company to evade its statutory obligations."

50. Earlier in his judgment Mr Justice Jiten Singh had referred to the argument that Amitesh Sharma was not "holding" a learners permit if he was driving without a qualified supervising driver and was alone in the vehicle. It is surprising perhaps that he described this argument as follows:
    

"Impressive as this argument might appear on the face of it."

51. An appeal by the insurer was heard on 14th February 2008 by Byrne JA (as he then was) Goundar JA and Hickie JA. The judgment of 5th February 2009 is correct in dismissing the appeal but unfortunately there is an egregious error of fact and some matters of law where error crept in. The error of fact arises from the following passage and the reference is to Mr Justice Finnigan's judgment of 11th August 2005 which commenced with striking out the defence and was wholly concerned with quantum of damages. The passage in question is at paragraph 3 of the judgment of the Court and says:
    

"[3] The Judge found that on the 2nd of April 1997 the Respondent was riding his bicycle across the junction of Vomo Street and Leonidas Street when the 2nd Defendant, Amitesh Kumar Sharma, who although only a probationary driver was alone in his mother's car made a right-hand turn without giving any indication and collided with the Respondent and his bicycle. The Judge held that he was satisfied that on the 4th of June 1997 Amitesh Kumar Sharma was convicted in the Magistrates Court of Careless Driving and was fined $30.00 in default 30 days imprisonment."

52. The true position is that Finnigan J only considered the unsupervised learners driver point on one occasion. That one occasion was at the hearing commencing 7th August 2006 which resulted in Finnigan J's final ruling of 22nd August 2006. After considering the relevant evidence, which was overwhelming, Finnigan J found that Amitesh Sharma had been supervised while driving by Mahendra Raj.
    
53. The Court of Appeal however would seem to have taken the view, as Jiten Singh J had, that if Amitesh Sharma being a learner driver unsupervised by a qualified driver, the fact that this is one of two road traffic offences unique to learner drivers mentioned on the Learner Drivers Permit or licence, would have somehow meant that he was no longer "holding a driving licence".
    
54. This legal point must be decided upon authoritatively. I have no doubt that the 1930 Road Traffic Act in the United Kingdom, which incidentally introduced driving tests and provisional driving licences for the first time, intended that provisional drivers would have to be insured on the same terms as those holding and driving upon a full driving licence. The mischief which the legislature was dealing with was the liability in tort of negligent drivers who were also at the same time as injuring a third party, committing any of a larger number of (criminal) road traffic offences. Although driving while unsupervised and driving without displaying "L plates" are only applicable to provisional licence holders, their effect when committed contemporaneously have no impact on the societal need for tortfeasing drivers to hold or be covered by valid third party insurance policies. Generally the only interaction of road traffic offences and negligent driving causing third party injury or death is only that if an offence, particularly that of "careless driving" is proved, it will render it more likely that the driver sued by the injured person will be found liable in tort. If insurance policies were allowed to stipulate that no indemnity would arise if the tortfeasor was also committing a road traffic offence, the statutory scheme of the 1930 Road Traffic Act in the United Kingdom, let alone the scheme of the 1934 Act would never have been enacted in the form it was.
    

The Relevance of Section 10(3) of the 1934 Act (in Fiji section 11[3] of Cap 177)

55. Some explanation is also required in respect of the complete non-applicability of section 10(3) of the 1934 Act (section 11[3] in Fiji Cap 177) on the facts of this case.
    
56. I have referred to this aspect of the statutory scheme in paragraphs 4 and 5 of this judgment. Section 11(3) refers to proposers for motor insurance who have failed to answer material questions contained in the proposal form accurately or truthfully.
    
57. The following was said in Jiten Singh J's judgment:
    

"The investigator's interview was conducted on 15th August 1997. The insurance company had the necessary information with it to seek declaration from the court that it was entitled to avoid the policy under the provisions of Section 11(3) of the Act. The insurance company did not do this and is now coming ten years later to obtain the same result."

58. The same matters concerning section 11(3) are discussed in the Court of Appeal judgment. I refer to paragraphs 13 – 15 inclusive:
    

"[13] Section 11(3) of the Act allows an insurer to obtain a declaration from the Court that, apart from any provision contained in the insurance policy, the insurance company is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in a material particular.

[14] The Investigator's Interview

The insurance company's investigators interviewed Amitesh Kumar on the 15th of August 1997. Singh J found that the Insurance company then had the necessary information with it to seek a declaration from the Court that it was entitled to avoid the policy. It failed to do so but, as the Judge remarked 'is now coming ten years later to obtain the same result'.

[15] In the view of this Court this is a clear example of estoppels by conduct."

59. The matter being referred to as coming under section 11(3) is the statement attributed to Amitesh Sharma by insurance investigator Mr Panapasa Matailevu on 15th August 1997. It refers (again) to the allegation that Amitesh Sharma was driving unsupervised with no one else in the vehicle.
    
60. I set out section 11(3) of the Motor Vehicles Third Party Insurance Act Cap 177:
    

"(3) No sum shall be payable by an approved insurance company under the provisions of this section if, in an action commenced before or within 3 months after the commencement of the proceedings in which the judgment was given, the insurance company has obtained a declaration that, apart from any provision contained in the policy, the insurance company is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in a material particular or if the company has avoided the policy on the ground that it was entitled to do so apart from any provision contained in it:

Provided that an insurance company which has obtained such a declaration in an action shall not thereby be entitled to the benefit of the provisions of this subsection in respect of any judgment obtained in any proceedings commenced before the commencement of that actions unless, before or within 7 days after the commencement of that action, it has given notice thereof to the person who is plaintiff in the action under the policy specifying the non-disclosure or false representation on which it proposes to rely and that it intends to seek a declaration and any person to whom notice of such action is given may, if he desires, be made a party thereto."

61. There is no doubt that the language used
    

"a declaration that ... the insurance company is entitled to avoid [the policy] on the ground that it was obtained by the non-disclosure of a material or by a representation of fact which was false in a material particular ..."

is the language used of contracts that may be wholly avoided on account of material innocent or fraudulent misrepresentation. In insurance contracts this refers to questions and answers in the proposal form.

62. For two reasons I conclude that the meaning of the above language refers to the proposal form and matters antecedent to formation of the insurance contract. These are:
    

(1) the statutory language is very clear that it refers to pre contract matters and (2) the leading case of Zurich General Accident and Liability Insurance Company Limited v. Morrison (1942) 1 All AER 529 at 540 EF per Goddard LJ as he then was, states this in express terms:

"It is not surprising, therefore, that by 1934 Parliament interfered, and, by the Road Traffic Act, 1934, s10, took steps towards remedying a position which to a great extent nullified the protection that compulsory insurance was intended to afford. Generally speaking, sect.10 was designed to prevent conditions in policies from defeating the rights of third parties; but insurers were still allowed to repudiate policies obtained by misrepresentation or non-disclosure of material facts. This right, however, was made subject to certain conditions and restrictions contained in sect.10(3). It seems to me that what the legislature had in mind was that, if an insurer was intending to repudiate a policy, it was only fair that the injured third party should know the grounds on which repudiation was sought before he went to the expense of endeavouring to establish his claim against the insured, who, if not entitled to indemnity, might be unable to satisfy a judgment."

63. Nothing at all in Mr Matailevu's evidence refers in any way to the proposal form which must have been signed by Mrs Nirmala Sharma prior to the issue of the policy. That proposal form has never been produced or relied on by the insurer in any proceedings in or connected to this case.
    
64. It follows that the references to section 11(3) by Jiten Singh J and the Court of Appeal are misconceived.
    
65. If there had been a section 11(3) application, by the insurer there are two applicable time limits which are required to be complied with. Against the insured the insurer has three months from the commencement of the tort proceedings against the insured or his driver. Against the third party the insurer has to give Notice within seven days from the commencement of third party's action against the tortfeasor setting out the particulars to be relied by the insurer against the insured person(s).
    
66. So if QBE Insurance (Fiji) Limited failed to give Ravinesh Prasad statutory notice of alleged misrepresentations relied on against Mrs Nirmala Sharma in her proposal form within 7 days of the Issue of the Writ in HCA 223 of 1997 by Ravinesh Prasad against Mrs Nirmala Sharma and Amitesh Kumar Sharma, it could not ever rely on a finding in its declaration action that the contract be avoided against Mrs Nirmala Sharma, against the injured third party Ravinesh Prasad.
    
67. The insurance companies reliance on section 11(3) in this case was wholly invalid. But if it had been valid, once the seven day notice period to Ravinesh Prasad had passed, it could not even be relied on by the insurance company against him. Once the three months notice period from the issuing of the Writ in HCA 223 of 1997 had passed, it could not ever be relied upon against the insured Mrs Nirmala Sharma. Trying to raise section 11(3) matters in HCA No. HBM 27 of 2006 was always totally unarguable and an abuse of process. There was no need to rely on "estoppel by conduct" as the Court of Appeal did.
    

The Section 10 scheme; are points finally decided in the tortfeasor's action able to be re-litigated in the third party's action against the insurer?

68. The insurer has now taken five years in litigating two factual issues decided against their interest in 2006 by Mr Justice Finnigan. Using their rights of subrogation they could have appealed HCA 223 of 1997 to the Court of Appeal and then to the Supreme Court. In referring to two factual issues I am referring to the unsupervised driving issue and the authority/permission for Amitesh Sharma to drive issue.
    
69. The 1930 United Kingdom statutory scheme of compulsory third party insurance supplemented by the 1934 United Kingdom supplementary provision of the section 10 (section 11 in Fiji) statutory scheme of prioritising third parties rights and giving third parties a direct non contractual right to recover from the insurers is long established law applicable in Fiji. There is no doubt that when the third party issues his writ to the tortfeasor and/or the insured and gives the statutory notice required by section 10(2) of the 1934 Act (section 11(2) in Cap 177 in Fiji) the insurance company is locked in to operating the statutory scheme. Once the event injuring or killing the third party has occurred it is too late to cancel the liability for breach of condition. So the options for the insurer are limited. The insurer may operate the section 11(3) escape route and get out the proposal form from the file. An inspection of that usually shows that there is nothing to support going down this route. This leaves three things for the insurer using subrogation powers as required to investigate. Firstly, investigation of the event may show no negligence on the part of the insured or his permitted driver and/or it may show contributory negligence on the part of the third party. Secondly, as explained in Sun Insurance Company Limited v. Mukesh Chandra a Court of Appeal decision in Civil Action No.ABU 0031 of 2009 handed down on 18th March 2011, the insurer may investigate whether the tortfeasor has ever held a valid driving licence and whether (at the time of the event) he was disqualified from holding or obtaining a valid driving licence by order of a Court. Thirdly the insurer may investigate whether the vehicle was being used by the owner when a person other than the owner was driving at the time of the event; that is to say they can investigate whether the owner permitted and authorised the alleged tortfeasor to drive the vehicle.
    
70. If the insurer using his powers of subrogation in the tort action have taken one or more of these issues to Court and the First Instance Judge is against them on all or any matter, they can appeal on fact and law to the Court of Appeal. If they fail there, the insurer may appeal to the Supreme Court by petition for special leave.
    
71. If all these issues end in failure for the insurer in the Supreme Court or the insurer fail to appeal, these issues reach the end of the road; the insurer cannot raise them by refusing to pay the third party and then re raise these issues when the third party employs section 10(1) (which is section 11(1) in Fiji Cap 177) in proceedings to obtain his damages.
    
72. It follows that Mr Justice Jiten Singh at first instance and the Court of Appeal erred in hearing, insofar as they did hear, the issues of not holding a driving licence and the driver not having permission or authority to drive at the time of the event.
    
73. Because the insurer who has been given notice of the Court proceedings, fails to operate the statutory scheme when the third party is obliged to sue the tortfeasor and/or the insured, does not change the position in any way. Once these issues are decided the insurer has no locus standi to re raise them in an action by the third party against it because the insurer has not paid the damages, interest or costs, than if the insurer had been a party to the tort proceedings.
    
74. There was one play that the insurer by refusing liability and manipulating the third party to sue it can make. In that action it used to be the case in Fiji, that the insurer could raise breach of a condition of the insurance policy on the part of the owner and/or driver who were using the vehicle on a public road at the time of the event. I now turn to that matter.
    

The position when the insurer claims that at the time of the event the insured was in breach of a condition in the insurance policy and out of cover

75. In the present policy the following are conditions which bind the owner and his permitted driver(s):
    

"CONDITIONS

1. The person insured shall not use the motor vehicle nor shall owner permit or suffer any person to use such motor vehicle –
   
   • (a) whilst such motor vehicle is in an unsafe condition
     
   • (b) to convey any load in excess of that for which it was constructed
     
   • (c) to carry passengers for the hire or reward or in pursuance of a contract of employment in contravention of the license issued for the vehicle described herein
     
   • (d) whilst any such person is aforesaid
     
     • (i) is under the influence of intoxicating liquor, or
       
     • (ii) is as a result of age or some physical or mental condition rendered incapable of driving such vehicle with safety
       
2. The Insurer may, at any time by giving written notice to the Owner cancel this Policy Notice of cancellation may be delivered personally or posted to the Owner at the address last notified to the Insurer. After cancellation as aforesaid the Insurer will, on delivery of the Policy and Certificate to the Insurer, refund the Owner the amount of unearned premium, calculated on a pro rata basis."
   
76. Insurance companies may include further conditions in other parts of the text of the policy.
    
77. It will be seen that there are no breaches of these express conditions committed by the insured Mrs Nirmala Sharma and/or her permitted driver.
    
78. At the oral hearing of this petition on 13th October 2010, Mr Faizal Hanif for QBE Insurance (Fiji) Limited was pressed by the Court to say whether he was relying on any breaches of condition and if he was able to identify such condition. His response was to refer to the allegation that Amitesh Sharma had been driving alone and unsupervised at the time of the accident on 2nd April 1997. When pointed out that Mr Justice Finnigan had heard the witnesses, and decided to the contrary, from which finding of fact there had been no appeal, Mr Faizal Hanif could not identify any other alleged breach of condition. Earlier in this judgment I have explained why driving unsupervised would amount to a criminal offence but not to breach of a condition of the policy.
    
79. In paragraph 3 above it is observed that when this case was heard on 13th October 2010 the judgment in Sun Insurance v. Pranish Prakash Chand (supra) had not yet been delivered.
    
80. So if there had indeed been a breach of a condition of the policy alleged it would have been a matter of public importance requiring the grant of special leave. All the important issues decided on 15th October 2010 in Sun Insurance v. Pranish Prakash Chand were at large on 13th October 2010.
    
81. The result of Sun Insurance v. Pranish Prakash Chand is that the statutory framework has been fully explained. So far as breaches of condition are concerned the scheme of Section 10 relegates them to an action by the insurer against the insured person in breach of any material condition. In the scheme the third party is entitled to recover his damages directly from the insurer. In the case of Sun Insurance v. Pranish Prakash Chand, the tortfeasor was alleged to be carrying a passenger in his vehicle for hire or reward. The Supreme Court explained the proper interpretation of the statutory scheme. Sun Insurance could have recourse to recover what it had been ordered to pay to Pranish Prakash Chand from the insured. But under the scheme, the third party had to be paid out in full the amount he had been awarded in his action against the tortfeasor and the insured. It was nihil ad rem that the insured through the driver was in breach of a condition of her policy.
    
82. On 13th October 2010, in the present case, these points were undecided. But, in fact, none of the issues purporting to be grounds of appeal in this case, raised the issues relating to breach by the insured or her driver of the conditions in the insurance policy.
    

Should Special Leave be Granted or Refused?

83. In my opinion all the issues raised by the insurer and appealed to this Court were unarguable when Mr Justice Finnigan found the facts as he did. Their only remedy was to use their powers of subrogation to have Mrs Nirmala Sharma appeal until finality on the issues found by Mr Justice Finningan.
    
84. A young person aged 17 and badly injured at the time of the accident on 2nd April 1997 has had to wait about 14 years for his damages. These hopeless appeals verging upon abuse of process have taken time. It has been a little more than 5 years since QBE Insurance (Fiji) Limited decided to decline liability though under the statutory scheme they were clearly liable to pay the damages. Declining liability forced Ravinesh Prasad to take proceedings in Civil Action No.HBM 27 of 2006 which terminate with the handing down of this judgment.
    
85. While the law is that in civil cases hopeless appeals can be pursued to finality, those instructed to act in such cases have to be careful not to mislead the Court. In this case I have commented above on the undesirability of pleading in the way Paragraph 7G(ii) has been pleaded. Both the statement that the Court of Appeal had heard but failed to find on the issue of permission to drive, and the failure to state that this was a new ground of appeal now raised for the first time in the Supreme Court were misleading. The Supreme Court must be in position to know truly the state of the facts, the issues and the Grounds of Appeal. Should this occur in the future, Counsel may find that the matter is referred to the Legal Services Commission.
    
86. In my view this petition for special leave should be refused and costs of the petition assessed at $6,000 should be ordered to be paid by QBE Insurance (Fiji) Limited (the Petitioner) to Ravinesh Prasad in respect his costs in opposing this Petition for Special Leave. I propose also that interest at 8 percent on the damages awarded by Finnigan J be ordered to be paid by the Petitioner from 16th August 2005 until payment of these damages to the Respondent.
    

Justice William Calanchini

87. I agree with the reasons and the conclusions of Justice William Marshall.
    
88. On the question of interest I would adopt with respect the comments of the Court of Appeal in John Edward Byrne and Another v. J S Hill & Associates Ltd (unreported Civil Appeal No 33 of 1993 delivered on 19 August 1994) at page 26:
    

"Section 22 (1) of the High Court Act Cap 13 provides for the statutes of general application which were in force in England on 2 January 1875 to be in force in Fiji. The Judgments Act 1838 was such an Act. Its application to Fiji has not been repealed or varied by legislation. Section 3 of the Law Reform (Miscellaneous Provisions Death and Interest) Act Cap 27 gives the Courts a discretion as to the rate of interest to be awarded in respect of the period between when the cause of action arose and the date of judgment; but it contains no provision in respect of interest after judgment. Section 17 of the English Act is still the only one that does so. Its provisions are mandatory."

89. Section 22 (1) states:
    

"The common law, the rules of equity and the statutes of general application which were in force in England at the date when Fiji obtained a local legislature, that is to say, on the second day of January, 1875, shall be in force within Fiji subject to the provisions of section 24 of this Act."

For the purpose of the present proceedings section 24 limits the application of statutes of general application extended to Fiji to circumstances where the application of a particular English statute has not been replaced, repealed or varied by the Parliament of Fiji.

90. Section 17 of the Judgments Act 1838, as it was originally enacted, provided:
    

"And be it enacted, that every Judgment Debt shall carry interest at the rate of Four Pounds per Centum per Annum from the Time of entering up the Judgment ... until the same shall be satisfied, and such interest may be levied under a Writ of Execution on such Judgment."

91. The present form of section 17 of the Judgments Act 1838 provides:
    

"(1) Every judgment debt shall carry interest at the rate of eight pounds per centum per annum from such time as shall be prescribed by rules of court until the same shall be satisfied and such interest may be levied under a writ of execution on such judgment

(2) Rules of court may provide for the court to disallow all or part of any interest otherwise payable under subsection (1)."

92. Under section 17 the amount of interest payable was stated to be 4%. That amount had been increased to 10% pursuant to a number of statutory orders up to 1977 but was then reduced to 8% in 1983.
    
93. In Suresh Sushil Chandra Charan and Another v. Suva City Council (unreported Civil Appeal No. 12 of 1989 delivered on 27 October 1989) the Court of Appeal stated that subsequent revisions of the rate of 4% have no application to Fiji. The Court of Appeal in the Byrne case (supra) adopted a similar approach to the legislation and again considered 4% to be the appropriate rate.
    
94. However in my judgment section 9 of the Interpretation Act Cap 7 (as amended) has the effect of extending the application of the revised rates of interest to Fiji. Section 9 states:
    

"A reference in any written law to any imperial enactment or to any applied Act, or to any provision, part or decision thereof, shall, unless a contrary intention appears, be construed as a reference to the same as the same may be amended from time to time and as a reference to any such imperial enactment or applied Act, or to any provision, part or division thereof, submitted therefore, if such amendment or substitution extends or applies to Fiji."

95. In the absence of any provision on post judgment interest in any written law in Fiji it can be implied that not only does the Judgments Act 1838 still apply, but, as a result of section 9, so do any amendments to the Act in the form of interest rate revisions made from time to time.
    
96. There is now accepted to be a presumption that if the provisions of applied legislation are to be fixed as at the date to which reference is made in the referring written law, this should be spelled out in the written law. (See Switzerland Insurance Australia Ltd v. Mowie Fisheries Ltd 144 CLR 234). There is no reason why this presumption should not be applied to the task of clarifying any ambiguity that may arise when determining the scope of section 9.
    
97. In my judgment the purpose of the reference to 2 January 1875 in section 22 (1) of the High Court Act was to provide a point of reference in the sense that it was the date fixed for determining which statutes of general application were to be in force in Fiji. It does not necessarily follow that, just because Fiji has not introduced legislation on post judgment interest since that date, that subsequent changes to the Judgments Act 1838 are not to be part of the statute law in force in Fiji. As Beaumont J (dissenting) in the Switzerland Insurance case (supra) at page 246 said:
    

"... there is still a presumption at common law that legislation should be given an "updating" construction. It is presumed that parliament intends the court to apply to an on-going Act a construction that continuously "updates" its wording to allow for changes since the Act was initially framed."

98. It should be noted that section 22 does not expressly say that the statutes of general application in force as at 2 January 1875 will remain in force or fixed in the form they took on 2 January 1875. In the absence of such an express specification in section 22, the presumption now applied is that the legislature intended the reference to be ambulatory in the sense that it included amendments. It could not reasonably be expected that the intention of section 22 was that part of the statute law of Fiji should remain fixed or locked into the form it took in 1875 and thereby not be updated as and when subsequent amendments or changes were made to those statutes.
    
99. As a result I have concluded that interest is payable at the rate of 8% on the judgment debt. The date upon which the debt became due and payable is the date of entry of the judgment which appears to be 16 August 2005. The interest which accrues on the judgment accrues until the judgment is paid by virtue of the statutory provisions which have already been discussed. It is not discretionary and is automatically included in the amount for which execution may be levied. The interest rate of 6% awarded by the learned trial judge under section 3 of the Law Reform (Miscellaneous Provisions Death and Interest) Act Cap 27 has been included in the amount of the judgment debt. The post judgment rate of 8% is payable on that amount from 16 August 2005 to the date of payment.
    

Anthony Gates, President

ORDERS OF THE COURT

100. The orders of this Court are:
     
     • (1) that the Petition for Special Leave of the Petitioner (QBE Insurance [Fiji] Limited) be refused.
       
     • (2) that the Petitioner (QBE Insurance [Fiji] Limited) pay costs to the Respondent, Ravinesh Prasad in respect of his costs incurred in responding to this Petition assessed at $6,000.
       
     • (3) that the Petitioner (QBE Insurance [Fiji] Limited) pay interest on the damages in the sum of $94,925 at 8 percent from 16th August 2005 (being the date of the judgment of Finnigan J in respect thereof) until the date of payment to the Respondent Ravinesh Prasad.
       

Hon. Chief Justice Anthony Gates
President of the Supreme Court

Hon. Justice William Marshall
Justice of the Supreme Court

Hon. Justice William Calanchini
Justice of the Supreme Court