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Kumar v Attorney General of Fiji [2006] FJHC 64; HBC032.2006 (22 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 32 OF 2006

NO. 164 OF 2006

BETWEEN

VIREND KUMAR
Plaintiff

AND

ATTORNEY GENERAL OF FIJI
Defendant

Appearances: Singh & Chaudhry Lawyers for the plaintiff
Office of the Attorney General for the defendant

Hearing: 31 July 2006
Decision: 18 August 2006

JUDGMENT

[1] Before me is a motion filed by the plaintiff for an order that leave be granted pursuant to Section 16 (3) of the Limitation Act (the Act) to pursue the cause of action. The plaintiff, Mr. Kumar, has filed three affidavits in support of the application.

[2] The application is strongly opposed.

The pleadings

[3] The Writ of Summons commencing the plaintiff’s action was issued on 14 February 2006.

[4] The statement of claim alleges that on 14 August 2002 Ranjini Devi Kumar (deceased wife of the plaintiff) attended the Lautoka Hospital as a patient for advice and treatment in relation to a left ovarian cyst. She received advice from doctors at the hospital and she agreed to be treated – particulars are set out at paragraph 5 of the statement of claim.

[5] It is alleged that the doctor (s) who treated her were servants of the defendant who owed her a duty of care and skill and alternatively that an essential term of the agreement was that the operation would be performed with the highest skill and care. The plaintiff claims that the surgery and treatment provided was done so negligently, which negligence caused the late Mrs. Kumar’s premature death. The particulars of the alleged negligence are set out in paragraph 8 of the statement of claim.

[6] The defendant filed a statement of defence on 28 April 2006. The allegations of negligence are denied. The defendant also pleaded that the cause of action is statute barred under the Act.

[7] Having been alerted to the defence under the Act, the plaintiff’s solicitors took action and filed the present application.

The relevant provisions of the Act

[8] The provisions governing such applications are stated below:

Application for leave of court

S. 17 (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 4; and

(b) to fulfil the requirements of subsection (3) of section 16 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 4. (emphasis added)

Extension of time limit for actions in respect of personal injuries

S. 16 (1) The provisions of subsection (1) of section 4 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.

S. 16 (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 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 than twelve months before the end of that period; and

(b) in either case, was a date not earlier than twelve months before the date on which the action was brought.

What are the principles applicable in the granting of leave in circumstances such as this?

[9] In the present case, the application for leave has been made after the commencement of the action. Therefore S. 17 (3) of the Act governs the application. A useful and succinct analysis of the principles I am required to consider in applications for leave made after the commencement of the action are contained in the Fiji Court of Appeal judgment in Permal & Krishna Sami –v- Loraini Tinai Saweta (Civil Appeal No. 19 of 1995).

The Court of Appeal at pages 5 and 6 held, and I quote:

"The only difference between subsections (2) and (3) of section 17 of the Act is that subsection (3) requires a third ingredient to be met namely that the applicant had no knowledge, before instituting the action that the matters constituting her cause of action had occurred on a date which would afford a defence to the action namely a date more that 3 years before commencing the action.........

Cases where leave may be given after commencing action would also be rare. They could arise after the action is instituted where the plaintiff was not aware that material facts constituting his action had occurred more than three years before the action began.

In re Clark v. Forbes Stuart (Thames) St. Ltd (1964) 2 All E. R. 283 the plaintiff did not know the identity of the occupier of premises until after the limitation period had expired. That lack of knowledge was held to be a material fact and leave was granted under section 1 of the 1963 Limitation Act (Imperial). Sections 1 and 2 of that Act are similar to sections 16 and 17 of the Fiji Limitation Act.

In that case the plaintiff applied for leave before commencing the action.

Pearson L. J. at page 284 stated:-

"... this is a case of an application made before the commencement of any relevant action, which is in any ordinary case the correct procedure. That is the time at which the application ought to be made and, if not made at that time, but after the commencement of the action, then something more has to be proved by the applicant under section 2 (3)".

The "something more" to be proved under section 2 (3) of the Imperial Act, which is in almost identical terms to section 17 (3) of the Fiji Act, is that the matters constituting her cause of action were outside her knowledge when she commenced the action.

An example does not readily come to mind. In the instant case the appellant was well aware of the date and circumstances of the accident. They formed basis of her statement of claim. If she was not aware of the identity of the owner of the car until the limitation period had elapsed she should have sought leave before commencing the action.

The learned Judge was unable to find any case in England between 1963 and 1975, when the 1963 Act was replaced by the Limitation Act 1975, of leave being sought – or granted after commencement of the relevant action. He concluded that the reason was the rarity of a situation where a plaintiff did not know of facts having occurred which constituted her cause of action and which had occurred more that three years previously.

Generally speaking it can be stated that in virtually all cases leave should be sought before issuing a writ. If leave is sought after commencement of the action a court has no jurisdiction to entertain the application unless the applicant can satisfy the court that he did not know and could not with reasonable diligence discover that the material facts on which he based his claim had occurred more than 3 years before he issued the writ."

[10] The Court of Appeal observed that cases where leave may be granted after commencing the action would be rare. They would arise after the action is instituted where the plaintiff was not aware that material facts constituting his action had occurred more than three years before the action began. Their Lordships held that the "something more" to be proved under S. 17 (3) of the Act is that the matters constituting the cause of action were outside the plaintiffs knowledge when the action was commenced.

Has the plaintiff satisfied the pre-requisites for leave?

[11] In the various affidavits filed by the plaintiff, he relies on several reasons for delay. These include a lack of knowledge of legal or medical processes, his first solicitor failed to act on time, the Medical Superintendent of the Lautoka Hospital failed to provide medical reports on time and he should not be prejudiced because he was not at fault in failing to file the action within the limitation period. I have considered the evidence adduced by him in my consideration as to whether he has met the requirements of S. 17 (3) of the Act.

(i) evidence sufficient to establish the cause of action

Although he has failed to adduce sufficient evidence, it is clear on the face of the statement of claim that a sufficiently meritorious cause of action exists.

(ii) the requirements of S. 16 (3) of the Act

The evidence adduced by the plaintiff falls far short of the threshold. He has not established what were the material facts relating to the cause of action which were or included facts of a decisive character which were at all times outside his knowledge (actual or constructive) until a date which-

(a) either was after the end of the three – year period relating to the cause of action or was not earlier than twelve months before the end of that period; and

(b) in either case, was a date not earlier than twelve months before the date on which the action was brought.

The only dates referred to in the supporting affidavits are 9 January 2004, the date his former solicitor wrote to the Medical Superintendent requesting the medical reports and January 2006 when he gave instructions to his present solicitors on record. Suffice it to say the evidence he has put forward fails to establish these requirements.

(iii) and it also appears to the Court that until after commencement of the action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting his cause of action were outside his knowledge when he commenced the action.

[12] Having considered the provisions of Sections 19, 20 and 21 of the Act, it is clear to me that the plaintiff has failed to establish this element as well. The plaintiff has failed to satisfy me that he did not know and could not with reasonable diligence discover that the material facts on which he based his claim had occurred more than 3 years before he issued the writ.

Conclusion

[13] The evidence adduced by the plaintiff has not met the threshold requirements of S. 17 (3) and S. 16 of the Act. Accordingly the motion dated 16 May 2006 is dismissed.

Gwen Phillips
JUDGE

At Lautoka
22 August 2006