IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No.09 OF 2005

BETWEEN:

DICK IAUKAS
Claimant

AND

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
First Defendant

AND

URIEL LEO
Second Defendant

Mr Hillary Toa for the Claimant; 
Mrs Viran M.Trief for the First Defendant, Government of the Republic of Vanuatu;
The Second Defendant in person (not legally represented ).

REASONS FOR JUDGMENT

Introduction

1.	On 20 February 2007, the Court issued an Order granting leave to the Applicant to file his claim for damages for personal injuries out of time.

2.	Below are the reasons of the Judgment.

3.	This was an application by the Applicant dated 22 October 2003 seeking leave of the Court to file his claim out of time. It was filed on 24 January 2005. The Applicant filed sworn statements in support of his application exhibiting a copy of an unfiled Supreme Court claim of 2003 and a copy of the same Supreme Court claim filed on 24 January 2005.

4.	The brief facts show that on 25 January 1998 the Applicant was assaulted by the Second Defendant (police officer) while in custody in Port-Vila. 

5.	On 27 January 1998, the Applicant was admitted to Vila Central Hospital for a period of one (1) month, two (2) weeks and three (3) days. 

6.	After his release from hospital, he was very afraid of the police and said he was concerned that they would repeat the assault. He left Vila and went into Teouma bush where he stayed for 3 months and had his injuries treated by custom medicine.

7.	On the following occasions he returned to Port-Vila for examination and assessment of his injuries.

•	On 5 May 1998 he was examined at the ESU Dental Surgery;
•	On 20 April 1998, he was examined by Dr. Spooner;
•	On 31 May 2002, he was examined at the Dental Heal Department.

8.	He was informed that the extent and permanency of his injuries could not be confirmed.

9.	On 16 August 2002, he attended Dr. Basil MacNamara at the Vila Central Hospital. It was then, that Dr. MacNamara confirmed the extent and permanency of the Applicant’s injuries.

10.	On 22 October 2003, the Applicant filed an application seeking leave to file a claim out of time attached with a copy of his claim at Port-Vila Supreme Court Registry. On the same date, he filed a sworn statement in support of his application.

11. On 22 October 2003, the Court Registry issued the Applicant an invoice of VT20,000 court fees for the application and sworn statements and instructed the Applicant to pay the Court filing fees.

12. The Applicant did not have VT20,000 for the Court fees so he had to go and look for the money which he later paid by small instalments as follows:

•	2,000VT on 30 April 2004;
•	3,000VT on 17 August 2004;
•	3,000VT on 17 September 2004;
•	2,000VT on 10 October 2004;

13. On 12 December 2004, the Court Registry handed back the Applicant’s documents as the Court filing fees were not completed.

14. The Applicant went back to see his counsel and the remaining balance of VT10,000 was paid on 22 December 2004.

15. On 22 December 2004, the Applicant returned to the Court Registry with his application and sworn statements and receipts in support. The Court Registry told him to re-file his application and sworn statement as the date of 22 October 2003 was already expired.

16. The Claimant’s counsel then re-filed the second application for leave to file the claim out of time with a copy of his claim and sworn statements in support on 24 January 2005.

17. The hearing was an inter-partes hearing. Counsel for the First Defendant provided written submissions. There was no sworn statement filed. The Second Defendant provided no submissions nor sworn statement.

18. The First Defendant opposes the application on the ground that the Applicant is not entitled to leave as he does not meet the requirements of Section 15 of the Limitation Act No.4 of 1991 ("the Act").

19. The Law

20.The provisions of the Limitations Act of 1991 are the relevant law to apply.
Sections 3(1); 15(1), (2), (3), (5); 16; 17; 18; 19; 20 and 21 are the relevant provisions. They provide as follows:

21. "3. Limitation of actions of contract and tort and certain actions

(1)	The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-
(a)	action founded on simple contract or on tort;
(b)	action to enforce a recognizance;
(c)	actions to enforce an award, where the submissions is not by an instrument under seal;
(d)	actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:

Provided that-

(i)	in case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contact or such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; 
…"

22."15. Extension of time limit for actions in respect of personal injuries

(1)	The provisions of subsection (1) of section 3 shall not afford any defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which-
(a)	the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and 
(b)	the requirements of subsection (3) are fulfilled.

(2)	This section applies to any action for damages for negligence, nuisance or breach of duties (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(3)	The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which-
(a)	either was after the end of the three-year period relating to that cause of action or was not earlier that 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.

(4)	…

(5)	Nothing in this section shall be construed as excluding or otherwise affecting-
(a)	any defence which, in any action to which this section applies, may be available by virtue of any provisions of any Act other than those contained in subsection(1) of section (3) (whether it is an Act imposing a period of limitation or not) or by virtue of any rule of law or equity; or
(b)	the operation of any Act or of any rule of law or equity which, apart from this section would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued."

23.	"16. Application for leave of court

(1)	Any application for the leave of the court for the purposes of section 15 shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications which are made after the commencement of a relevant action.

(2)	Where such an application is made before the commencement of any relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-
(a)	to establish that cause of action, apart from any defence under subsection(1) of section 3; and
(b)	to fulfil the requirements of subsection (3) of section 15 in relation to that cause of action.

(3)	Where such an application is made after the commencement of a relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient-
(a)	to establish that cause of action, apart from any defence under subsection (1) of section 3; and
(b)	to fulfil the requirements of subsection (3) of section 15 in relation to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 3.

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

24. 17. Application of sections 15 and 16 to actions after death of injured person

(1)	In relation to any action to which section 15 applies being in respect of one or more causes of action surviving for the benefit of the estate of a deceased person by virtue of any Act, subsections (1), (3) and (5) of section 15, and section 16, shall have effect subject to the provisions of subsections (4) and (5).

(2)	Subsections (1), (3) and (5) of section 15, and section 16, shall have effect subject to the provisions of subsections (4) to (6), in relation to any action brought by virtue of any other Act for damages in respect of a person’s death, as they have effect in relation to an action to which section 15 applies.

(3)	In subsection (4), (5) and (6), and in sections 15, and in section 16 as modified by those provisions, "the deceased" means the person referred to in section (1) or (2), as the case may be.

(4)	Subsection (1) of section 15 shall not have effect in relation to any action falling within subsection (1) of (2) unless the action is brought before the end of the period of twelve months from the date on which the deceased died.

(5)	For the purpose of the application of subsection (3) of section 15 to an action falling within subsection (1) or (2)-
(a)	any reference in the said subsection (3) to the plaintiff shall be construed as a reference to the deceased; and
(b)	the requirements of that subsection shall be taken to be fulfilled in relation to a cause of action if either the matters specified in that subsection (as modified by paragraph (a)) are proved or it is proved that the material facts relating to that cause of action were or included facts of a decisive character which at all times until his death were outside the knowledge (actual or constructive) of the deceased and any reference to the requirements of the said subsection (3) shall, in relation to an action falling within subsection (1) or (2), be construed as a reference to the requirements to the said subsection (3) as modified by this subsection.

(6)	In the application of sections 15 to 21 to an action brought by virtue of any other Act-
(a)	any reference to a cause of action which an action relates shall be construed as a reference to a cause of action in respect of which it is claimed that the deceased could, but for his death, have maintained an action and recovered damages; and
(b)	any reference to establishing a cause of action shall be construed as a reference to establishing that the deceased could, but for his death, have maintained an action and recovered damages in respect thereof.

25. 18. Meaning of "material facts relating to a cause of action"

In sections 15 and 17 any reference to material facts relating to a cause of action means a reference to any one or more of the following-
(a)	the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;
(b)	the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;
(c)	the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.

26.	19. Meaning of "facts of a decisive character"

For the purposes of sections 15 and 17, any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 21 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that, apart from any defence under subsection (1) of section 3, an action would have a reasonable prospect of succeeding and resulting in the award of damages sufficient to justify the bringing of the action.

27.20. When facts will be taken as outside the knowledge of a person

(1)	Subject to the provisions of subsection (2), for the purposes of sections 15 to 17 a fact shall, at any time, be taken to have been outside the knowledge, actual or constructive, of a person if, but only if-
(d)	he did not then know that fact;
(e)	in so far as that fact was capable of being ascertained by him, he had taken all such action, if any, as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice as aforesaid with respect to those circumstances.

(2)	In the application of subsection (1) to a person at a time when he was under a disability and was in the custody of a parent, any reference to that person in paragraph (a) or (b) of that subsection shall be construed as a reference to that parent.

28. 21. Meaning of "appropriate advice"

In sections 19 and 20 "appropriate advice", in relation to any fact or circumstances, means the advice of competent persons qualified, in their respective spheres, to advice on the medical, legal or other aspects of that fact or those circumstances, as the case may be."

29.The Judgment of the Court of Appeal in Raffey Taiwia of South Pacific Construction Ltd v. Robson Edward; Civil Appeal Case No. 2 of 1998[1998] VUCA 14, constitutes the jurisprudential authority and shall be applied in the present case.

30.	 Application of the law to the facts.

The Judgement of the Court of Appeal in the case of Edward provides the test consideration (at page 6) as follows:-

"The power to extend time is essentially conditioned on fulfilment of the requirements of s.15 (3) within the time frame specified. That time frame, in effect, requires that the potential plaintiff ascertain a material fact of a decisive character within 12 months before the day on which leave to extend time is sought. Three critical expressions used in s.15 (3), namely "material facts relating to that cause of action", "facts of a decisive character" and "outside the knowledge (actual or constructive) of the plaintiff" are precisely defined in ss 18, 19 and 20, with s.21 giving further definition to the concept of knowledge of the plaintiff".

31. 	In the present case, the Claimant has stated in his sworn statement filed on 24 January 2005 that he suffered personal injury during an alleged assault on 25 January 1998. In a medical report dated 16 August, 2002 Mr. McNamara concluded that the Claimant has permanent disability as a result of his injury during an alleged assault on 25 January 1998 in the form of difficulty with eating and pain associated with his maligned bite on the right side of his jaw. The extent of the claimant’s personal injuries from the alleged assault in January 1998 were not confirmed till 16 August 2002 when Dr McNamara made his report. The extent of the personal injuries resulting from the assault (which arose due to either negligence or barely of duty) were a "material fact relating to that cause of action" as defined in section 18 of the Act, and were "facts of a decisive character" as defined in section 19 of the Act.

32. 	It is a fact that the extent of the claimant’s personal injuries were "outside the knowledge (actual or constructive) of the claimant" until 16 August 2002 when he obtained "appropriate advice" as defined in section 21 of the Act by obtaining medical advice in the form of Dr McNamara’s report.

33. 	Counsel of the First Applicant government submitted, therefore, that under s. 15(3) (b) of the Limitation Act of 1991, the claimant (now respondent in this application) was required to commence action within 12 months of obtaining that knowledge, that is, before 16 August 2003. They said the Claimant did not commence proceedings by way of lodging a claim with the Court until 22 October 2003, that is, 1 year and 8 months. It was submitted that this is outside the time frame set by subsection 15(3) of the Act so the Claimant cannot be granted the leave sought as the requirements of s. 15(3) are not met.

34. 	In exercising the discretion, I grant leave to the claimant to file his claim out of time. In so doing, I bear in mind that " if the fact was capable of being ascertained by him the question will arise whether he had taken all such action as it was reasonable for him to have taken for the purpose of ascertaining it". Smiths (and Dodd) –v- Central Asbestos Co. Ltd at 539-540 cited in Robinson Follard. That question is a subjective test: "Less is expected of a stupid or uneducated man than a man of intelligence and wide experience."

In this case, Mr. Dick Iaukas was unfamiliar of his legal rights or at least the extent of his legal rights and did not know that the circumstances of the assault could give him an entitlement to claim damages until he received legal advice from the Public Solicitor. Further, having that knowledge, the evidence shows that he has very limited financial resources to file his claim.

35. 	The evidence does not indicate why it was that Mr. Dick Iaukas did not see the Public Solicitor until after 23 August 2003.

36. 	It is reasonable to infer on the basis of his unchallenged sworn evidence filed on 24 January 2005 that it was necessary for Mr. Iaukas to make an appointment which would be some time ahead. The Claimant was not cross-examined on his sworn statement nor was it otherwise suggested that he could have seen the Public Solicitor sooner after the report by Dr McNamara. Further, there was no evidence showing any prejudice from the First Defendant government nor the second defendant as to the granting of the application to file the claim out of time.

37. 	On my assessment of the facts, it is a material fact of a decisive character which was outside Mr. Iauka’s knowledge until within 12 months of the commencement of the proceedings, and that the claimant fulfilled the requirements of s. 15(3) of the Act. The leave is so granted. Those are the reasons of the oral judgment of 20 February 2007. 

DATED at Port-Vila this 12th day of November 2007

BY THE COURT

Vincent LUNABEK
Chief Justice