IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 31 OF 1993

BETWEEN:

PENIASI DOBUI
of Nasigatoka Village, Rewa,
General Worker and Ex-Soldier.
Plaintiff

AND

PIONEER MACHINERY LIMITED,
a limited liability company having its office in Fiji.
Defendant

R.I. Kapadia: For the Plaintiff
R. Matebalavu: For the Defendant

Dates of Hearing: 2nd June, 14th July, 20th August 1993
Date of Interlocutory Judgment: 20th December 1993

INTERLOCUTORY JUDGMENT

In High Court Civil Action No. 220 of 1991 judgment was given in favour of the Plaintiff by Scott J. against Pioneer Machinery a firm, for the sum of $192,000.02 together with costs.

The Plaintiff had claimed damages against Pioneer Machinery for injuries sustained on the 18th of October 1991 when he was being temporarily employed as a labourer. He alleges that on that day he was told to enter and clean an in-ground concrete mixer. While squatting at the base of the mixer it was accidentally switched on by another employee. The mixer began to rotate and the two blades inside it inflicted terrible injuries on his legs, successively cutting into his ankles, shins and thighs. A fellow-employee of the Plaintiff who was inside the mixer with him named Manoa Suguta was killed almost immediately as a result of the accident.

The Plaintiff's injuries are described in his judgment by Scott J. and I need not repeat them here. The action before Scott J. was not contested by the Defendant Pioneer Machinery which apparently held no insurance cover for personal injuries. However the Defendant in the present proceedings, Pioneer Machinery Limited, appears to hold a full insurance cover for public liability.

In the earlier proceedings No. 220 of 1991, on the 9th of March 1993 it was ordered by consent by Fatiaki J. that Queensland Insurance (Fiji) Limited should pay out to the Plaintiff's solicitors the sum of $84,554.00 which appears to have been the maximum liability of the company towards Pioneer Machinery, the firm.

The present proceedings were begun by the Plaintiff on the 28th of January 1993 because it appeared that the assets of the firm were not adequate for payment of the full amount due to the Plaintiff under the judgment of Scott J.

The Plaintiff has therefore instituted the present action against the Defendant company as a joint tortfeasor in the hope that he may be able to recover the full amount of compensation due to him for the injuries which he sustained on the 18th of October 1990.

When served with the present Writ the Defendant did nothing, apparently being under the impression that the present proceedings were merely a duplication of Civil Action No. 220 of 1991, and so on the 15th of February 1993 Interlocutory Judgment was entered in favour of the Plaintiff against the Defendant for damages to be assessed, the Defendant not having entered any appearance in the action.

Presently before me is a Summons to set aside judgment issued by the Defendant. The Summons is supported by two affidavits, the first by Apisalome Bai Baro who, according to the written submissions I have received from the Defendant, is the proprietor of the firm Pioneer Machinery and also from Mr. Baro's affidavit, a director of Pioneer Machinery Limited the Defendant which he says was incorporated on 22nd November 1989.

The other affidavit in support of the present application was sworn by Apisalome Rabo Matebalavu the Defendant's solicitor and his present counsel.

Mr. Matebalavu deposes that in his view the Defendant has a good or arguable defence, a draft of which he annexes to his affidavit.

In this the Defendant admits that the Plaintiff suffered personal injuries in the Defendant's factory at Lami but denies any negligence or, alternatively alleges contributory negligence by the Plaintiff.

Four particulars of contributory negligence are then pleaded, namely:

(i)	that the Plaintiff had no right to be in the mixer machine because he had no orders from the Defendant to be in it;

(ii)	that he was in the machine when he knew or should have known that it was not intended for use by him for shelter or other related unauthorised use;

(iii)	failing to inform the Defendant of his presence in the machine;

(iv)	failing to obey or heed the Defendant's instructions not to be in the machine unless specifically authorised by the Defendant.

In its submission on the present application the Defendant states that upon registration of the Defendant as a limited liability company, registration of the firm or business name Pioneer Machinery was not cancelled as is normally the case. But the business continued to trade in exactly the same undertaking but this time as a limited liability corporate entity. It is stated that at the time the Plaintiff suffered his injuries the Defendant's business was already operating "under the umbrella of a limited liability company".

In the next breath however, the Defendant states that when the Plaintiff commenced Civil Action No. 220 of 1991, in essence Pioneer Machinery no longer existed. How that statement can be reconciled with the earlier statement that the registration of the firm was not cancelled escapes me.

The Defendant then submits that the Plaintiff, having recovered a substantial sum in Civil Action No. 220 of 1991 should not be allowed to recover twice for exactly the same injuries from the same principal.

The Defendant then alleges that it has various defences both factual and legal to the Plaintiff's claim and should be allowed an opportunity to present them in Court.

It is convenient to deal with the penultimate submission I have just mentioned first.

This submission cannot be sustained as a matter of law. It is clear that Pioneer Machinery and Pioneer Machinery Limited are separate entities and, following Townsend v. Bishop (1939) 1 All E.R. 805, I hold that the doctrine of res judicata does not apply so as to bar the Plaintiff's present action.

In that case Lewis J. held that as the action he was then trying was not one between the same parties as those in an earlier action although both actions arose out of the same motor-vehicle collision, the plea of estoppel failed.

The rule is that the Plaintiff cannot bring any action against the same party for the same cause. In the instant case, the Defendants in the two actions are different. The only restriction on the Plaintiff is under Section 6(1)(b) of the Law Reform (Contributory) Negligence and Tortfeasors Act Cap. 30 which states if more than one action is brought in respect of damage by the person by whom it was suffered the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given.

Also by Section 6(1)(a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage.

I therefore reject this first principal submission by the Defendant.

The Defendant next submits that it should be given an opportunity to contest the issue of liability. It quotes the well-known remark of Webster J. in Paclantic Financing Co. Inc. and Others v. Moscow Narodny Bank Ltd. (1983) 1 W.L.R. 1063 at 1067: 

"But in the absence of an opportunity to test the defendant's veracity, it seems to me that the court should never give summary judgment for the plaintiff where, upon the evidence before it, even a faint possibility of a defence exists." 

Later at letter (H) on the same page Webster J. said:

"But I conclude that I should not reject the defendant's evidence if, merely because of its inherent implausibility or its inconsistency with other evidence, I find it incredible or almost incredible."

In Suncourt (Wholesalers) Ltd. v. Ambika Prasad Civil Action No. 733 of 1987 in a ruling I delivered on the 17th of July 1989 I applied Webster J's remarks and gave a Defendant leave to defend.

Reading the copy ruling of the Resident Magistrate in Inquest No. 8 of 1991 in the case of the death of Manoa Suguta, which is annexed to an affidavit by the Plaintiff sworn in these proceedings on the 24th of May 1993, it seems to me that the Defendant can take little solace from the Magistrate's findings. If the learned Magistrate's findings as to the circumstances of the accident are established by evidence at the trial of this action I would only say that the Defendant would then have very serious problems on the question of liability.

However in the light of Webster J's decision and my own in Suncourt (Wholesalers) Ltd. v. Ambika Prasad I consider that I should not shut the door at this stage against the Defendant. In my view it is entitled to attempt to prove the defence which it proposes to plead. If it transpires that this is but a sham and a waste of the Court's time then this may be reflected in the Court's judgment. Here I observe that to date the Plaintiff has not made any claim for punitive damages. The Defendant will accordingly be given leave to defend and I order that the default judgment entered against it on the 15th of February 1993 be set aside. However this must be subject to two conditions, first that no later than 17th January 1994 it file in this Court a Bank Bond in the sum of $85,000.00 in a form to be approved by the Court as a security that any judgment entered for the Plaintiff will be satisfied.

The second condition is that the Defendant pay the Plaintiff's costs of this application which are to be taxed in default of agreement.

There will be orders accordingly.

JOHN E. BYRNE
JUDGE
HBC0031J.93S