IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 380 OF 1993L

NO. 199 OF 2006

BETWEEN

PREMILA LATA & SURENDRA PRASAD
Plaintiffs

AND

PRAKASH TRANSPORT AND SUPERMARKET
First Defendant

AND

PRANESH PRAKASH
2nd Defendant

AND

DINESH CHAND
3rd Defendant

AND

LEPANI
4th Defendant

AND

CUVU BULLDOZING WORKS
5th Defendant

Appearances: Messrs Mishra Prakash & Associates for the plaintiffs
Messrs Sahu Khan & Sahu Khan for the 1st & 2nd Defendants

Decision: 29 September 2006

Judgment
[Summons to amend]

[1] The summons which is before me asks for an order on behalf of the plaintiffs that they be given leave to amend the writ of summons and statement of claim.

[2] The application is made pursuant to Order 20 rule 5 of the High Court Rules.

Background

[3] By writ of summons dated 14 December 1993, the plaintiffs as trustees of the Estate of Prem Chand (the deceased) sued the defendants claiming damages under the Compensation to Relatives Act. They alleged that the deceased was employed by the 1st defendant, Prakash Transport and Supermarket, a partnership firm. It is alleged that on 14 December 1990 the deceased was fatally injured while at work when a log or logs fell off the 1st defendant’s truck and hit him. The plaintiffs allege that the accident was caused by the negligence of the 1st defendant, its servants or agents. It is alleged that the 2nd defendant, Pranesh Prakash was the owner of the said truck which was being used in the 1st defendant’s business. The 5th defendant allegedly owned the loader being used at the relevant time and which was operated by the 3rd defendant.

[4] The particulars of negligence pleaded are as follows:

a) not securing the logs on the truck in a proper and safe manner
b) not providing adequate equipment to properly secure the logs and to properly release the same
c) not providing sufficient assistance, equipment or man power to allow the loading and/or unloading of the timber on the relevant truck
d) not paying credence to the presence of the deceased
e) not driving or using the loader with enough care and attention
f) not giving any adequate warning to the deceased of a dangerous situation or creation of a dangerous situation at the work place.

[5] The 1st, 2nd and 5th defendants have filed defences. The 1st and 2nd defendants admit that the deceased was employed by them when he died. They say that the logs which fell off the 1st defendant’s truck causing the death was occasioned by the 5th defendant’s negligence and/or recklessness and/or carelessness. Further that the sole responsibility of loading the logs lay with the 3rd and 5th defendants whose negligence resulted in the death of the deceased. It is admitted that the 2nd defendant was the owner of motor vehicle registration number CH751 which was at the accident site and was being used in the course of the 1st defendants business. They state that the 5th defendant was the owner of the loader. The claim is otherwise denied by the 1st and 2nd defendants. The 5th defendant filed a bare defence. The plaintiffs are put to strict proof of the claim.

The present application

[6] The 1st named plaintiff, Premila Lata is the widow of the deceased. She has filed two affidavits in support of the application. She states that since the issuance of the writ some of the defendants have changed the names of their firms and that the amendments sought are necessary to include the names of the successor firms as defendants. The evidence in her affidavit of 7 September 2006 shows that two months after the writ was issued, the particulars of the 1st defendant were changed. By a statement of change dated 18 February 1994, two of the four partners including the 2nd defendant, Pranesh Prakash, were listed as outgoing, leaving two remaining partners. On the same day, Pranesh Prakash made an application for Registration By an Individual to register ‘Prakash Transport’ as his business name. Both applications were approved and Certificates of Registration later issued. The applications were lodged by the 1st and 2nd plaintiffs’ solicitors on record. That the changes were made is not in dispute. Mrs. Prakash who filed an affidavit in reply on behalf of her husband believes that the changes were made as a result of disputes amongst family members. Premila Lata believes that the changes were made to avoid liability in the claim against them.

[7] The plaintiffs contend that in the circumstances they ought to be allowed to amend the writ and statement of claim by amending the name of the 1st defendant to ‘Prakash Supermarket’ as successor to ‘Prakash Transport and Supermarket’ substituting the new firm in place of the old. Similar amendments are sought in respect of the 5th defendant. The plaintiffs also seek to add a 6th defendant.

[8] The application is opposed by the 1st and 2nd defendants on the following grounds:

(i) the application is unsupported by evidence of any changes in the particulars of the 1st defendant. The lack of evidenciary basis was cured by the further affidavit filed on behalf of the plaintiffs. I am satisfied on the material before me that the changes contended by the plaintiffs were made.

(ii) the application for the amendments sought is made well after the expiry of the period of limitation and not being within the exceptions permitted by Order 20 rule 5, the orders sought cannot be granted.

The relevant provisions of Order 20 rule 5

(i) Subject to order 15, rules 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct

(ii) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so

(iii) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party is the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued

(iv) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

[9] The power of amendment is expressed so as to allow an amendment to determine the real question in controversy between the parties, to correct an error or defect in the proceeding or to avoid a multiplicity of proceedings. There are, however, limits to the courts discretion to allow an amendment to parties outside a limitation period.

[10] The High Court of Australia in Bridge Shipping Pty Ltd –v- Grand Shipping S A (1991) 173 CLR 231 expressed the principles to be applied in such applications. His Honour, McHugh J in his judgment on the interpretation of a similar Rule in Australia, (Rule 36.01 of the Rules of the Supreme Court of Victoria) discussed in detail at page 261 of the judgment the history of O. 20 r. 5 (3) of the English Rules which is identical to the Fiji provision. His Honour expressed the principles to be applied in interpreting the provisions to be as follows:

"Rule 30. 01 (4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it to the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.

To give the rule the meaning for which Bridge contends does not mean that a person can sue any person and then at a later time substitute another person for the original defendant. The rule imposes three limitations on a person’s right to amend. First, there must be a mistake. Secondly, the mistake must be in the name of a party. Thirdly, the court may only make the order where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his or her claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise: r. 36. 01 (6)."

[11] Applying these principles to this case the material before me leaves me in little doubt that it is appropriate and just that O. 20 r. 5 be given as wide and beneficial an interpretation as possible to avoid the injustice that would accrue to the beneficiaries of the estate of the deceased, namely his widow and seven dependant children. 

1st defendant

[12] It is clear from the pleadings that the plaintiffs intended to sue the employer of the deceased. Two months after being sued, that employer took steps designed to avoid liability. Although that may not have been the primary intention, the effect of the changes made in February 1994 engineered that result. The plaintiffs claim against the employer has been defeated by the change. The mistake in the name of the 1st defendant as employer was brought about solely at the instance of both the 1st and 2nd defendant. Both admitted in the defence filed that they were in fact the deceased’s employers and he died whilst in the course of his employment. The 1st defendants liability as employer was transmitted to the firm ‘Prakash Supermarket’. In the circumstances, in my view, it is necessary in order to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon that ‘Prakash Transport’ be substituted by amendment for the 1st named defendant. Any prejudice to the firm is entirely of its own making. 

5th defendant

[13] Again from the pleadings it is clear that the plaintiffs intended to sue the owner of the loader being operated at the material time. There is an apparent mistake in the description of the 5th defendant and it’s name. I have upheld the submission that no prejudice is likely to accrue to the 5th defendant given that a defence has been filed and it is aware of the claim against it. The amendment to the name of the 5th defendant is allowed.

6th defendant

[15] Pranesh Prakash admitted that he was the owner of motor vehicle CH751. It has transpired that the third party insurance over that vehicle was held by one Liyakat Ali on the day of the accident. Applying the principles expressed in Dorney –v- Sunflower Airlines Ltd [1994] High Court Civil Action 460/89 (25 November 1994), I have allowed the application that Liyakat Ali be added as 6th defendant.

Orders

(i) Order in terms of the plaintiffs’ summons of 19 October 2005

(ii) The amended writ and claim is to be served on all defendants

(iii) The B trial dates of 31/10/06 and 1/11/06 are vacated. The case is adjourned to 31/10/06 for mention.

(iv) Costs in the cause.

Gwen Phillips
JUDGE

At Lautoka
29 September 2006