IN THE HIGH COURT OF FIJI
NORTHERN DIVISION AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No. 38 OF 2001

BETWEEN:

SUSHIL CHAND
son of Shiu Narayan of Movo, Labasa, assisted person
PLAINTIFF/RESPONDENT

AND:

SHAVEENA LATA
daughter of Bhan Pratap of Tabia, Labasa, 
Domestic Duties as Administratrix in the estate of Mukesh Chandra 
son of Deo Dutt of Tabia, Labasa, Driver, Deceased Intestate
FIRST DEFENDANT

AND:

SHELL FIJI LIMITED
a limited liability company having its registered office at Suva
SECOND DEFENDANT/APPLICANT

Appearances: Mr A. Ram for the Second Defendant/Applicant
Mr Kohli )
Mr Sen ) for the Plaintiff/Respondent
No Appearance for the First Defendant

Date of Hearing: 11 July 2008
Date of Judgment: 18 July 2008

JUDGMENT

1.	Application

This is an application for a stay of execution of the judgment of His Lordship Justice Jitoko, delivered on 27 May 2008, wherein he ordered that the sum of $32,987.93 should be paid to the Plaintiff, Mr Chand, together with costs in the sum of $650.00.

1.1	The Applicant, the Second Defendant in the original action, filed a Notice of Motion on 7 July 2008, together with an Affidavit in Support (‘the Affidavit’), sworn by Debashish Sanyal, Vice President Finance of Total (Fiji) Limited. The Affidavit states amongst other matters that Total (Fiji) Limited has ‘purchased all the shires in [Shell] and is duly authorized to act on behalf of [Shell] in all matters relating to this appeal’. 

1.2	The Affidavit says that the Second Defendant ‘intends to appeal against the … judgment [of 27 May 2008] in terms of the Notice and Grounds’ annexed to the Affidavit, and amongst other matters that the ‘basis of the judgment’ is ‘seriously contested’ as ‘it has wide consequences to operations in Fiji, to all businesses employing drivers’. It further states that Total (Fiji) Limited ‘undertakes to meet the amount of any final determination or judgment entered against the Second Defendant’ and that Total (Fiji) Limited ‘is a substantial company with enough assets and is able financially to pay any final judgment sum which may eventually be awarded to the Plaintiff on the final determination’ of the appeal: paras 5-7

1.3	As to Mr Chand’s position, the Affidavit says that evidence at the trial ‘shows that the Plaintiff[/Respondent] has no assets and has come to Court in forma pauperis and has no assets of any substance’. 

1.4	The application is based upon the following grounds set out in the Affidavit:

(a)	…. If payment is made then: -

(i)	this appeal will be rendered nugatory;
(ii)	in case of a successful appeal the Appellant will have no chance of recovering money paid;
(iii)	the Respondent has no assets from which recovery can be made;
(iv)	the Respondent brought this action in forma pauperis in which he has declared that his assets are not worth more than $200.00;

(b)	… on the balance of convenience a stay order ought to be made;

(c)	the Plaintiff will not suffer any prejudice by reason of the order.

1.5	Additionally it is noted that the Plaintiff/Respondent ‘is threatening Winding Up Action’ and has handed the Solicitors to the Second Defendant/Applicant ‘copy of such a notice under the Companies Act’: paras 9, 10 

2.	The Appeal

The Notice and Grounds of Appeal annexed to the Affidavit state that His Lordship ‘erred in law and in fact’ in:

(i)	Omitting from his findings basic facts; 
(ii)	Selecting certain facts and disregarding such as those which were important considerations of the case and in particular the case for the Appellant;
(iii)	Coming to a conclusion on limited facts only;
(iv)	Coming to an early decision in the case and then finding such facts and conclusions as supported the decision;
(v)	Failing to give due consideration to the truth or otherwise and reliability of the Respondent’s evidence;
(vi)	Finding facts against the weight of the evidence.

2.1	Further, His Lordship ‘erred in law and in fact’ in:

1)	... failing to consider mechanical failure as the cause of the accident rather than negligence of the First Defendant.
2)	… in relying upon the principle of res ipsa locquitur in the circumstances of the case.
3)	… failing to hold that the Plaintiff who was a passenger in the Appellant’s vehicle was a trespasser to whom the latter owed no duty of care.
4)	… in his consideration and application of the law relating to the scope of employment of the First Defendant with the Second Defendant.
5)	Such further or other grounds which may be added with the leave of the Court after the receipt of the records.

3.	Counsels’ Submissions

Both Counsel for the Applicant/Second Defendant and Counsel for the Respondent/Plaintiff made oral submissions.

3.1	(a)	Applicant’s Submissions: Counsel for the Applicant/Second Defendant said that the Notice of Appeal has been filed in the court of Appeal and the appeal is pending. Because a Winding Up Notice has been issued by the Plaintiff/Respondent, the Applicant/Second Defendant was in a position where it was necessary to seek a stay of execution of the judgment before the 21 day period (applying to the Winding Up Notice) expires. 

3.2	Counsel said that there had been discussions between Counsel subsequent to the judgment and advice that the Second Defendant was appealing, and at that time Counsel for the Plaintiff advised that there would be across-appeal on damages. Upon that basis it was said that the Winding Up should not proceed as it would be based on a judgment against which the Plaintiff had foreshadowed a cross-appeal. 

3.3	If the judgment were not stayed, Counsel said, the Second Defendant would have to proceed with paying out the judgment, which would defeat the appeal were it successful, for the Plaintiff is a person without financial means.

3.4	(b)	Respondent’s Submissions in Reply: Counsel appearing for the Plaintiff/Respondent at that time advised that there would be an undertaking not to proceed to execution of the judgment. However, the Respondent’s position was that an undertaking would not obviate the need for a stay, the matter was stood down so that Counsel for the Plaintiff who had appeared in the trial could attend.

3.5	Upon resumption, Counsel for the Plaintiff/Respondent said that judgment had been entered some four years after the action commenced and hence the Plaintiff had been waiting for some time for the proceedings to be finalised. He said that communications between Counsel had resulted in no response, so that the Winding Up Notice was served.

3.6	The Appeal Notice, said Counsel, was eventually filed and served on 24 June 2008.

3.7	Counsel said that the Affidavit in Support (‘the Affidavit) did not properly or adequately provide confirmation to the Court that the Respondent, Shell, is now ‘Total’, nor that the deponent had proper authority to depose for Shell. He noted also that there had been no notice to the Court to confirm that the Second Defendant was no longer ‘Shell’ but was now ‘Total’.

3.8	Counsel said that he was prepared to give an undertaking that no action for execution of the judgment would be taken and the Winding Up order would not be proceeded with, pending the appeal. He said that the Second Respondent should, however, pay in to Court the full sum of the judgment pending the outcome of the appeal: it was a small sum comparatively.

3.9	Counsel for the Plaintiff/Respondent referred to the Court of Appeal Rules, saying that the Second Defendant/Applicant had not complied with them; hence, the appeal should rightly be deemed abandoned. Rule 17 requires an Appellant, upon filing Notice of Appeal, shall pay to the Registrar the fee for setting down the appeal and upon request by the Registrar deposit with the Registrar ‘such sums as he shall assess as the probable expense for the preparation, certification and copying of the record; and within 30 days of service of the Notice of Appeal, ‘apply to the Registrar to fix the amount and nature of the security to be given by him for the prosecution of the appeal, and for the payment of all such costs as may be ordered to be paid by him, or, as the case may be, to dispense with such security’. 

3.10	Counsel concluded by reiterating that should a stay be granted, then the was authority for the Court to order payment in of the judgment amount by the Second Defendant, and that the Court should order such amount to be paid in to Court.

3.11	(c.)	Applicant’s Submissions in Response: In reply, Counsel for the Applicant/Second Defendant said that the Affidavit sets out the position of Shell (the named Second Defendant) and Total, in that paragraph 2 spells out the relationship and ‘take over’ of Shell by Total. He observed also the undertaking in the Affidavit that judgment will be paid (if the appeal is unsuccessful). 

3.12	Counsel further noted that the Respondent/Plaintiff’s contention against a stay sat inappropriately with the intention of the Plaintiff as he understood it to cross-appeal: how could he effectively ‘stand by’ the judgment on the one hand by arguing against a stay, yet renounce it on the other by flagging a cross-appeal?

3.13	He said that the Applicant/Second Defendant was in a position to pay the judgment if the appeal failed, however, the Respondent/Plaintiff is not in a position to repay the monies if they are paid out to him: he is a ‘man of straw’, Counsel said. ‘There would never be a chance to get the money back.’

3.14	Counsel said that ‘talk of an undertaking is meaningless’, for the Plaintiff ‘has no interest in the judgment and more interest in the appeal’ in light of the stated intention to cross-appeal on quantum of damages. He observed that the grant of a stay would result in no prejudice to the Plaintiff/Respondent if the offer of an undertaking was made. Further, judgment was issued seven months after the close of the trial. ‘Any prejudice suffered by the Plaintiff is a very small factor in light of the cross-appeal.’ On the other hand, if a stay were not granted, then the Applicant/Second Defendant would, said Counsel, be ‘severely affected as it would run their image’.

3.15	(d)	Respondent’s Final Submissions: Counsel for the Plaintiff/Respondent sought to clarify the position vis-à-vis the Plaintiff/Respondent’s position: ‘He is not a "man of straw". He may be a pauper and not worth very much, but he had lodged his housing lease as security in Court.’

3.16	Further, the cross-appeal would be limited to the amount of damages, whereas the appeal by the Applicant/Second Defendant does not challenge the quantum of damages; rather, the appeal challenges the facts as found by a High Court judge. In the instance of a cross-appeal on quantum of damages, payment in to court by the Applicant/Second Defendant would not be affected as the cross-appeal would be asking for a higher sum.

3.17	(e)	Final Matters re Submissions: Clarification was given that the Winding Up Notice was issued on 26 June 2008, and that the company has 21 days to respond. Counsel for the Plaintiff/Respondent undertook to the Court that no action will be taken on the Winding Up Notice or execution of judgment pending the decision of the Court on the question of a stay.

4.	Determination the Subject of Appeal/Cross-Appeal

The Plaintiff (the Respondent herein) was injured in an accident involving a truck owned by the Second Defendant (the Applicant herein) and driven by the First Defendant’s husband/partner (Mr Mukesh Chandra) who is deceased in consequence of the accident. Mr Mukesh Chandra was at the time of the accident driving the truck as an employee of the Second Defendant. He invited the Plaintiff to accompany him by riding in the truck whilst he (the deceased) went about his employment with the Second Defendant. The Plaintiff, Mr Chand, suffered multiple injuries in the accident, spending almost one month in an Intensive Care Ward in Aotearoa/New Zealand. 

4.1	(a) 	Findings vis-à-vis Appeal: The High Court upheld the Plaintiff’s action by reference to a number of authorities, upon the basis (set out here in abbreviated form) that:

•	The Plaintiff was acting as an ‘employee’ of the deceased, performing duties which would have been carried out by the deceased (in the absence of the Plaintiff) in the course of Mr Mukesh Chandra’s employment – that is, within the scope of his employment: Rose v. Plenty & Ors [1976] 1 All ER 97

•	That the deceased, Mr Mukesh Chandra, was said to have been under instructions or direction of the Second Defendant not to carry other persons in the truck (that is, persons not being employees of and authorised by the Second Defendant) did not absolve the employer (master) from responsibility for reckless and improper conduct of the servant in the course of the service, if the deceased was doing what he believed to be in the interest of the master/employer, albeit acting recklessly, wantonly and improperly: Limpus v. London General Omnibus Co. (1862) 1 H&C 526, per Martin B.

•	That the Plaintiff was not a ‘trespasser’ so as to be precluded from asserting a responsibility in the Second Defendant for his injuries or, if he was, then the Second Defendant’s liability was not dependent upon his characterization as a trespasser, but whether the driver was acting in the course of his employment: Young v. Edward Box & Co. Ltd [1951] 1 TLR 789, at 793; Rose v. Plenty & Ors

4.2	His Lordship found as regards the facts in issue:

•	A prohibition exists on the carrying of passengers on the Second Defendant’s tanker trucks’;

•	The Plaintiff was invited to travel with the deceased, Mr Mukesh Chandra, on his delivery run to Savusavu and back to Labasa;

•	This was for reward – namely the payment to him by Mr Mukesh Chandra of $10.00;

•	In exchange, the Plaintiff was expected to provide company for Mr Mukesh Chandra, and to help him in whatever ways during the journey;

•	There was nothing to suggest the Plaintiff as asked specificity by Mr Mukesh Chandra, the driver (and deceased), to ‘keep an eye out’ for drums stacked at the back of the truck and no evidence supported the truck in fact carrying such drums;

•	The Plaintiff stated the driver, Mr Mukesh Chandra, had stopped the vehicle immediately after Seaqaqa town, asking him to check the tyres, which he did, confirming they were alright: it is not unusual, said the Court, for a driver of a big and heavily laden truck to stop from time to time to physically inspect the vehicle and load as precautionary safety measures and the Court had ‘no doubt that it is probable, in this case, that Mukesh Chandra may have delegated the inspection to the Plaintiff’;

•	There was conflicting evidence whether the Plaintiff had taken similar trips with the deceased driver, Mr Mukesh Chandra, on delivery runs to Savusavu in the past, but the Plaintiff’s evidence, not challenged by the Defendants, was clear that he had ‘travelled on the [Second] Defendant’s tankers on their delivery trips to Nabouwalu before, though not necessarily with Mr Mukesh Chandra;

•	There was sufficient evidence before the Court to suggest the Plaintiff had been ‘invited on these trips, and especially the delivery run to Savusavu on 30 December 1999, to accompany and assist the driver in this work: at 13

4.3	His Lordship concluded:

The Court, given all the evidence before it, finds that the driver Mukesh Chandra, had, in inviting the Plaintiff to accompany him on the delivery run to Savusavu contrary to the prohibition, … been acting in the course of his employment and in furtherance of the Company, the Second Defendant’s business. The Second Defendant, the Court therefore finds, is vicariously liable for the injuries sustained by the Plaintiff as a result of its [deceased] employee’s negligent driving: at 14

4.4	(b)	Findings vis-à-vis Cross-Appeal: As to the putative cross-appeal, the findings of His Lordship as to damages were that Mr Chand, the Plaintiff, suffered soft tissue damage being facial lacerations, injuries to his head and face, and injuries to his extremities. There were:

•	2 small cerebral contusions
•	fracture of the left lateral wall of orbit
•	fractured zygoma
•	fractured left humerus
•	fractured right clavicle
•	fractured right femur (compound)

4.5	Surgical operations undertaken on the Plaintiff at Auckland Hospital Intensive Care Unit included:

•	open reduction and internal fixations right femur
•	open reduction and internal fixations left humerus
•	open reduction and fixations left molar

4.6	Mr Chand, the Plaintiff, ‘had extensive physiotherapy and hydrotherapy and mobilized crutches after surgeries and he returned to Fiji on 25 January 2000’. On 20 October 2000, Dr Krishna carried out his last review of the Plaintiff, concluding:

He is ambulant and has headaches, dizziness, walks with a [limp], pain in the right hip and knee, scarring left arm, multiple scars forehead, deformed left 5th finger and pain in the upper jaw. X-rays revealed fractures healed: at 15

4.7	Unconscious from the time of impact on 30 December 1999, until regaining consciousness at Auckland Hospital in Aotearoa/New Zealand ‘a few days later’ (Mr Chand’s own evidence), the Plaintiff, concluded His Lordship, ‘would not have suffered therefore any pain during this period’. His Lordship accepted, however, ‘he would have suffered pains, considering the extent of his body injuries, from the time he regained consciousnesses. 

4.8	Mr Chand remained in Auckland Hospital from 31 December 1999 to 24 January 2000 - some 25 days.

4.9	The award for general damages was assessed at $20,000 (plus $5,591.20 interest at 6% from 30 December 1999 to 28 July 2004):

$12000	for pain and suffering	
$ 5000	for loss of amenities	
$ 3000	for future medical treatment	

4.10	Special damages were awarded for loss of earnings alone (in the amount of $6,200.00 plus $1,196.73 interest at 3% from 20 August 2001 to 27 May 2008), for the Second Defendant bore the entire cost of hospital and travel expenses, including his evacuation to Auckland Hospital, treatment and return; costs of travel to and from Suva for medical reviews; and transportation costs for Labasa Hospital visits.

4.11	Some grounds of appeal might on some assessments be considered doubtful of success: for example, the Applicant/Second Defendant contends error in law and in fact in a ‘failure to consider mechanical failure as the cause of the accident rather than negligence of the First Defendant’. However, His Lordship may be determined to have relatively extensively canvassed mechanical failure in his recitation of the inspection carried out at Labasa depot prior to the journey to Savusavu on 30 December 1999. The vehicle, he said, ‘had been thoroughly inspected, … the Second Defendant’s Relieving Manager .. personally inspecting the vehicle on the day’. Further, a check list procedure was conducted by the driver on 30 December ‘to ensure everything was in place’. Exhibit ‘DW1’ detailed the checklist (containing Mr Mukesh Chandra’s signature), including readings on oil, water, fuel and tyres together with lights, horns, wiper, break fluids, steering, battery, air tank draining and safety equipment like fire extinguisher’, with the stricture:

Drivers are to carry out the following checks on their vehicle and commence delivery only if the checks reads O.K.: at 4

4.12	On this aspect, His Lordship said:

The vehicle itself was relatively new, an Isuzu-made 17,000 litre truck mounted to the chassis. It can safely be assumed that when it left the depot on 30 December, the vehicle was in good running order: at 4

4.13	His Lordship then went on to consider matters such as the speed of the truck (the evidence from Mr Chand, the Plaintiff, was that Mr Mukesh Chandra, the driver, was speeding and that he (the Plaintiff) warned him, asking him to slow down. His evidence was further that the truck (observed by Mr Chand to have been said by Mr Mukesh Chandra to be ‘relatively new’) was speeding immediately prior to the time of the accident: at 4

4.14	On the other hand, as was stated in Counsel’s submissions for the Applicant/Second Respondent, there are matters of importance in the judgment as a whole which support the matter’s going on appeal so that the Court of Appeal can address them. This, as it appears to me, would particularly include questions as to the status of the Plaintiff as a trespasser or not, and whether albeit a trespasser (if he were) nonetheless the Second Defendant was liable for his injuries; and as to the scope of employment of the First Defendant (Mr Chandra) with the Second Defendant, and (further to that) whether the Plaintiff could properly be characterised as an ‘employee’. 

4.15	The application of the cases cited by His Lordship and upon which his determination relies is a matter of importance warranting consideration by the Court of Appeal.

4.16	As to the putative cross-appeal, in Permanent Secretary for Health and Attorney General of Fiji v. Arvind Kumar (Civil App. No. ABU0084/06, 20 June 2008) the Court of Appeal reviewed in its entirety the question of assessment of damages in the Fiji context. Amongst other matters, the Court said:

This appeal raises some important questions about the current level of awards of damages for pain and suffering in Fiji because it is said by the Appellants that in arriving at an amount of damagers for pain and suffering the Courts must take into account the socio-economic conditions of Fiji. By this the Appellants mean that because Fiji is classed as an ‘"undeveloped" country’ awards of damages for pain and suffering must be lower than those in more ‘"developed" countries’.

The Court has been referred to numerous cases in Fiji and overseas which are said to support this contention.

In our judgment it is time to review what has almost become dogma in the award of damages under this heading in Fiji.

We start with basic principle of medicine and biology:

The design of the human nervous system is universal and does not change according to the litigant’s race, age, class, environmental factors, or social standing.

The transmitting brain waves do not recognize these factors.

It follows therefore in our view that an under-privileged litigant who suffers injury hurts just as much as a wealthy, or socially important, litigant who suffers the same injury.

Therefore, at least in theory, each is entitled to the same compensation under the law: at paras [13]-[16]

4.17	The Court went on to increase the level of damages awarded by the High Court to the amount set out in the cross-appeal. 

4.18	That case involved injury sustained by an infant born prematurely and suffered through negligent treatment by the hospital in which he was born. However, the principles set out are applicable to the assessment and award of general damages generically. As the present case involves injuries sustained in a motor vehicle accident, and such accidents not infrequently occur in Fiji (as they do elsewhere) the assessment of general damages in the present case and review by the Court of Appeal would be of assistance.

4.19	Hence, it appears to me that there are matters demanding of review through the appellate process, and warranting consideration by the Court of Appeal.

5.	Principles Governing Stay

A number of authorities were referred to by Counsel for the parties, including Mohammed Hussein v. Macuata Muslim League (Motion Action No. 03 of 2008, 24 April 2008); Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union (Civil App. No. 1 of 1994, 7 October 1998); Car Rentals Pacific Ltd v. Lal [1992] FJC 13; HBc0076d.91s (6 March 1992); Prasad v. Prasad [1997] FJHC 30; Hbc0307d.96s (6 March 1997).

5.1	The principles governing a stay pending the hearing of an appeal against a judgment are:

1.	The grant or refusal of a stay is a discretionary matter for the Court: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing AG v. Emberson (1889) 24 QBVC, at 58, 59

2.	The Court does not make a practice of depriving a successful litigant of the fruits of litigation by locking up funds to which prima facie the litigant is entitled, pending an appeal: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Supreme Court Practice 1979, p. 909; The Annot Lyle (1886) 11 PD, at 116 (CA); Monk v. Bartram (1891) 1 QBV 346

3.	When a party is appealing, exercising an undoubted right of appeal, the Court ought to see that the appeal, if successful, is not nugatory: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Wilson v. Church (No. 2)(1879) 12 ChD, at 456, 459 (CA)

4.	If there is a risk that the appeal will prove abortive if successful and a stay is not granted the Court will ordinarily exercise its discretion in favour of granting a stay: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Scarborough v. Lew’s Junction Stores Pty Ltd (1963) VR 129, at 130

5.	In exercising its discretion the Court will weigh considerations such as balance of convenience and the competing rights of the parties before it: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing AG v. Emberson 

6.	A stay will be granted where the special circumstances of the case so require, that is, they justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal: Prasad v. Prasad [1997] FJHC 30; Hbc0307d.96s (6 March 1997), citing Annot Lyle (18886) 11 PD 114, at 116; Scarborough v. Lew’s Junction Stores Pty Ltd (1963) VR 129, at 130; and see also Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union

7.	In exercising its discretion the Court will weigh considerations such as balance of convenience and the competing rights of the parties before it: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing AG v. Emberson

8.	As a general rule, the only ground for a stay of execution is an Affidavit showing that if the damages and the costs were paid there is no reasonable probability of getting them back if the appeal succeeds: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Atkins v. GW Ry (1886) 2 TLR 400 

9.	Where there is a risk that if a stay is granted and the assets of the Applicant will be disposed of, the Court may, in the exercise of its discretion, refuse the application: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union

6.	Application of Principles to Instant Case

This is an instance where the Court should exercise discretion to grant the stay. Taking into account the foregoing principles and the authorities upon which they are founded, I accept that as a general rule, a successful litigant should not be deprived of ‘the fruits of litigation’ by locking up the monies to which – in this case Mr Chand, the Plaintiff/Respondent – is prima facie entitled, pending the appeal. However, both the Plaintiff/Respondent and the Second Defendant/Applicant have provided material which supports the proposition that a stay should be granted to ensure that the appeal, if successful, is not nugatory.

6.1	Counsel for the Applicant said that Mr Chand, the Respondent, is a ‘man of straw’. I accept Counsel for the Respondent’s reply that Mr Chand is not a ‘man of straw’ – that he lodged as security his housing lease. However, as is clear from the record, Mr Chand is not a person with significant financial resources. Were the judgment to be executed and the funds to be released to him, it would be understandable were he to find an immediate need which would likely result in their being gainfully deployed for his care and support during the period pending hearing of the appeal. Mr Chand could not be blamed for using the funds for his own purposes were they released to him – as indeed he would be entitled to do – however, it is apparent that under such circumstances, should the appeal succeed, it would be difficult if not impossible to recover the monies from Mr Chand.

6.2	This means that, to conform to the principle that the appeal if successful should not be rendered nugatory, the stay should be granted. Upon that basis, because of the ‘risk that the appeal will prove abortive if successful and a stay is not granted’ I am disposed to exercise discretion in favour of granting the stay.

6.3	In exercising discretion, however, I am bound to ‘weigh considerations such as balance of convenience and the competing rights of the parties’. Mr Chand has a right to execution of the judgment in that, as his Counsel emphasised, he has been waiting some four years for conclusion of the case; he has suffered considerable injuries and experienced not inconsiderable pain and suffering; for a person in that position and, additionally, being less than well endowed financially, there is some force in the proposition that judgment should be executed rather than stayed. On the other hand, should the appeal be successful not only would the Applicant/Second Respondent be unlikely to be able to recover – at least immediately and perhaps not at all – the monies, Mr Chand would be disadvantaged by being in debt to the Applicant/Second Respondent in an amount which he would be unlikely to repay. It is bad enough to be poor, without having what would be a huge debt to Mr Chand ‘hanging over’ him should the appeal succeed.

6.4	As to the requirement of ‘an Affidavit showing that if the damages and the costs were paid there is no reasonable probability of getting them back if the appeal succeeds’, the material on the Court file and in the Affidavit of the Applicant/Second Defendant indicates this follows. 6.5	That is, Mr Chand appears on the record as an ‘assisted person’. Counsel’s written submissions (filed 18 May 2007) in the trial commence with the paragraph:

Plaintiff who is a destitute – (receiving social welfare destitute allowance) makes his claim against the defendants for injuries sustained by him on 30th December 1999 when he was a passenger in a truck owned by the Second Defendant and driven by Mukesh Chandra s/o Deo Dutt who is deceased: at para 1

6.6	The Affidavit in Support of the application (filed 7 July 2008) observes that Mr Chand declared his assets as being ‘not worth more than $200.00’: at para 9

6.7	The special circumstances of the case are precisely this: the financial circumstances of the successful Plaintiff are such that the risk to both him and the Applicant/Second Respondent as aforesaid in paying out the monies outweighs the benefits to both parties in granting the stay. I should add, however, that I do not accept the Applicant/Second Defendant’s contention that in filing a cross-appeal the Plaintiff/Respondent contradicts any argument he might make against the grant of a stay: as his Counsel said, any cross-appeal would not challenge the basis of the substantive decision, but the quantum of damages only. In the latter regard, the contention is as to the quantum being too low and requiring an increase. Hence, this would not militate against execution of the judgment.

7.	Payment into Court

For the Plaintiff/Respondent, however, it is said that if the stay is granted, it should be granted effectively on a ‘quid pro quo’ basis: with the Applicant/Second Defendant’s being required to pay into Court, pending the appeal, the full amount of the judgment. 

7.1	In considering this aspect, I note in passing the principle that if there ‘is a real risk that if a stay is granted and the assets of the Applicant will be disposed of, the Court may, in the exercise of its discretion, refuse the application’: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union

7.2	The Plaintiff/Respondent has said that there is no proper indication in the material put forward by the Applicant/Second Respondent for the stay as to the financial circumstances of the Second Defendant. Counsel for the Plaintiff/Respondent says that the simple statement:

Total (Fiji) Limited undertakes to meet the amount of any final determination or judgment entered against the Second Defendant: para 6, Affidavit in Support is insufficient upon which to accept the financial capacity of the Applicant/Second Defendant in fact to meet any judgment should the appeal be dismissed, and should it not only be dismissed but any cross-appeal on quantum of damages be successful.

7.3	For the Applicant/Second Respondent it is said that Total is a substantial company and (effectively) that it is axiomatic that it has the resources to payout the judgment or any increase (should the mooted cross-appeal be successful), and that this requires no substantiation beyond the assertions to this effect in the Affidavit.

7.4	In an application for an injunction, in Sharma v. Akhil Holdings Ltd [2006] FJHC 82; HBC155.2002l (15 December 2006), the Court referred not only to the question of whether damages would satisfy a claim so that an injunction need not issue, but also substantiation of capacity to pay damages - by reference to Natural Waters of Viti Ltd v. Crystal Clear Mineral Waters (FIJI) Ltd CABU0011/a of 2004S (26 November 2004); and Air Pacific Ltd v. Air Fiji Ltd [2006] FJCA 63; ABU0066U.2006S (10 November 2006). 

7.5	In Air Pacific the Court of Appeal said it did not need to consider the question of sufficiency of damages because the interim injunction was set aside by reference to the first leg of American Cyanamid – namely the failure to establish that there was as serious issue to be tried. However, the Court of Appeal reiterated ‘as an important point of practice’ that where a party ‘gives an undertaking to pay damages, there must be adequate information to allow an assessment of the worth of the undertaking. This Court laid that down in Natural Waters of Viti Ltd v. Crystal Clear Mineral Waters (Fiji) Ltd …’: at 9

7.6	In Natural Waters of Viti the Court of Appeal said this:

In our view there was plainly a serious issue to be tried. The potential for damage to the Appellants operation was palpable. While both parties offered undertakings in damages, neither placed sufficient material before the court to fortify those undertakings. At the same time, we see no reason to disagree with the Judge’s finding that the Respondent was a ‘minnow’ by comparison with the Appellant … Applicants for interim injunctions who offer an undertaking as to damages should always proffer sufficient evidence of their financial position. The court needs this information in order to assess the balance of convenience and whether damages would be an adequate remedy: at 7

7.7	The Court went on to observe that from ‘the size of the Appellant’s operation, we think it is reasonable to assume that it would be well able to meet the resulting claim for damages’: at 7-8
 
7.8	That is, the failure to ‘proffer sufficient evidence of their financial position’ was not in the end determinative of whether or not an injunction should be granted or maintained. True it is that, in the upshot, the existing interim injunctions were discharged by the Court of Appeal. However, it made other interim injunctions which met the requirements of the case.

7.9	Applying the same principles to the present case and the Applicant/Second Defendant, it could be said that albeit the Court has before it no real evidence of Total’s financial position upon which it can be said that Total will be able to pay out the requisite sum should the appeal be dismissed, the failure to ‘proffer sufficient evidence of their financial position’ should not preclude the Court from assuming capacity to pay by reason of ‘Total’s being Total’. Hence, there should be no requirement to pay in to Court the amount of the judgment pending the outcome of the appeal.

7.10	On the other hand, if the Court is to accept the Applicant/Second Defendant’s financial position in this light, it can equally be said that a requirement to pay the amount of the judgment in to Court will not prejudice it financially: if it has the capacity to pay a possibly increased amount at the end of the day, then it should not now lack the capacity to pay in to Court the amount stipulated by His Lordship’s judgment.

7.11	Is there any good reason for requiring such a pay-in?

7.12	First, the Plaintiff/Respondent has had an award made in his favour. Albeit the Applicant/Second Defendant asserts a capacity to pay, there is no clear financial status set out in the material upon which the Plaintiff/Respondent can be assured of this. In addition, as Counsel for the Plaintiff/Respondent noted, no steps have yet been taken by Total (Fiji) Limited to have its name substituted for that of the named Second Defendant, despite its having purchased or taken over the shares and ownership of the company Shell at some time prior to the making of the present Application.

7.13	Importantly, it was as far back as 30 December 1999 that the Plaintiff/Respondent suffered the injuries in respect of which damages were awarded. Damages were awarded by the judgment of 27 May 2008. Despite discussions between Counsel or attempted discussions between Counsel, no payment was forthcoming from the Second Defendant so that the Plaintiff felt himself obliged to issue a Winding Up Notice to effect action on its part. Albeit the Appeal Notice has now been filed and served, apparently no further action has been taken to advance to the hearing of the appeal, and no steps apparently instituted by the Second Defendant/Appellant for this purpose.

7.14	If the Plaintiff/Respondent had his payout now, he could utilise it or invest it at the market rate. If he is successful in his cross-appeal, with the Second Defendant/Appellant’s appeal being dismissed, he will receive the payout plus any increase awarded by the Court of Appeal – but will he then receive the original sum plus market-rate interest? It is unlikely that any interest ordered by the Court would be above 6%. 

7.15	If the Applicant/Second Defendant is required to pay the sum of the judgment into Court and the Court invests it in an interest-bearing deposit for six months – a fair estimate of the time it is likely to take to the hearing of the appeal – then neither party will suffer financially. The Second Defendant/Appellant if successful will recover the full amount of the monies plus interest; the Plaintiff/Cross-Appellant if successful will recover the full amount plus interest, plus any further amount awarded by the Court of Appeal.

7.16	This as it appears to me is the fairest approach in all the circumstances. In coming to this determination, I have taken into account also the Plaintiff/Respondent’s concerns about the progression of the appeal along with the length of time between the date of the accident and the time of the judgment, and the time it is likely to take for the appeal to be heard.

7.17	Accordingly, also, I have included in the orders a requirement consistent with that stipulated by His Lordship Justice Pathik in Prasad v. Prasad [1997] FJHC 30; Hbc0307d.96s (6 March 1997) that the Applicant/Second Defendant should ‘undertake all reasonable steps to execute the appeal with diligence and expedition’. 

7.18	That the payment in will be placed in a six-month interest bearing deposit should not be interpreted by the Applicant/Second Defendant as a reason for failing to expedite the appeal consistent with these orders.

Orders

1.	A stay of the execution of the judgment delivered by His Lordship Justice Jitoko on 27 May 2008 be granted until the hearing of the appeal instituted by the Applicant/Second Defendant.

2.	The Applicant/Second Defendant to pay in to Court the full sum of the said judgment within seven (7) days of the date of this judgment.

3.	That sum to be placed by the Chief Registrar in a six month interest bearing deposit, pending the hearing of the appeal.

4.	The Applicant/Second Defendant to undertake to take all reasonable steps to execute the appeal with diligence and expedition.

5.	Costs in the cause.

Jocelynne A. Scutt
Judge