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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 50 of 2003
Between:
RAVINESH PRASAD
Plaintiff
And:
ABDUL SAHEED
1st Defendant
ABDUL RAHEED
2nd Defendant
VINESH PRASAD AND RAM NARAYAN
3rd Defendant
Before: Master Udit
Counsel: Mr. V. Kakadia counsel for the Plaintiff
Ms. V. Lal of counsel for the Defendant on instruction of
A. K. Lawyers
Ms. Kenilorea of counsel for the third Paties/Respondent
Date of Decision: 29th August, 2008
DECISION
(Joinder of third parties as defendants)
Introduction
[1] On the 10th October, 2006 the plaintiff Ravinesh Prasad and Ganesh Prasad filed a Notice of Motion seeking the following orders:
(i) Ganesh Prasad (f/n Lakshman Prasad) be granted leave to be joined as a second plaintiff in this action.
(ii) That the plaintiff be granted leave to amend the within Writ of Summons by adding Vinesh Prasad f/n Ram Narayan and Ram Narayan f/n not known to the plaintiff both of Muaniweni, Nataisiri who presently are third parties in the proceedings,, as defendants in this action.
[2] The Motion was amended on 9th February, 2007. However the amendment did not affect the orders which were sought in the original Motion. All that was added in the Motion was the inclusion of the provisions under which the application is made. Initially the application was made pursuant to Order 20, Rule 5 of the High Court Rules 1988 but by an amendment it includes Section 23 of the Limitation Act (Cap 35). The intended third Defendants vigorously oppose the application.
Documents filed
(a) The Plaintiff
[3] The Plaintiff relies on the following documents:-
(a) Copy Pleadings filed on 23rd June, 2006.
(b) Agreed Bundle Documents filed on 29th June, 2006.
(c) Amended Notice of Motion filed on 9th February, 2006.
(d) Supporting Affidavit of Ravinesh Prasad sworn on 6th October and filed on 10th October, 2006.
(e) Plaintiff’s written submissions filed on 13th March, 2007.
(f) Plaintiff’s reply to third parties submissions filed on 18th May, 2007.
(b) Intended Third Defendants Third Parties
[4] The Intended Defendants/Third Parties rely on the following documents:-
(a) Documents contained in the copy pleadings filed for and on their behalf as third parties in this proceedings.
(b) An affidavit of Thomas Naua sworn on 13th and filed on 15th November, 2006.
(c) Submissions of the Third Parties.
The facts
[5] By this action, the plaintiff is seeking compensation for personal injuries arising from a motor vehicle accident in which three vehicles were one way or another involved. At all material time Motor Vehicle Registration Number C0180 was owned by Ravinesh Prasad and Ganesh Prasad. Motor Vehicle DM 872 was owned by Abdul Rasheed, the first defendant. The third vehicle allegedly involved in the accident was Registration Number CG 820, owned by Third Parties, namely Vinesh Prasad and Ram Narayan. The accident happened on 15th June, 2001.
[6] At all material time the First Named Intended Defendant was driving motor vehicle registration number CG 820 as a servant or agent of the Second Named Third Intended Defendant. Motor Vehicle Registration Number C0180 was driven by the plaintiff. The driver of the Motor Vehicle Registration Number DM 872, the second defendant, was acting as a servant and agent of the first defendant. On the said day, the First Named Third Intended Defendant, who was driving CG 820 was travelling on Seweni Serua Road towards Nausori. At the same time the Second Defendant was driving motor vehicle registration Number DM 872 on the same road. He allegedly failed to stop at the junction of Princess Road and Seweni Serua Road, thereby causing or permitting the said vehicle to collide with the Plaintiff’s vehicle which was parked on the opposite side of the road. The Plaintiff alleges that the said collision occurred due to the negligence of the second defendant or in the alternative the First Named Third Intended Defendant.
[7] The particulars of negligence are set out in detail in paragraph 8 of the Writ of Summons. For the purpose of the present application, it is important to reproduce the particulars of negligence against the First Named Intended Defendant as pleaded in the proposed statement of claim:-
Particulars of Negligence
(1) Driving vehicle too fast in all the circumstances.
(2) Failing to pay heed to the presence of the first Defendant’s vehicle traveling on Princess Road.
(3) Failing to stop to give way to traffic on the Princess Road in particular the first Defendant’s vehicle resulting in the first Defendant’s vehicle swerving on to the Plaintiff’s side of the road and colliding with Plaintiff’s vehicle.
(4) Failing to slow down, stop swerve or otherwise to manage control or maneuver his vehicle so as to avoid the collision.
(5) Failing below the standard of a reasonably skilled and prudent driver.
(6) The plaintiff will further rely upon the doctrine of ""res ipsa loquitar (in that the first named third Defendant failed to control his vehicle and came into Princess Road with proper lookout or stopping as required by law at the junction of Sawani Road and Princess Road to allow the first Defendant vehicle to pass which resulted in the third Defendant’s vehicle swerving onto the wrong side of the road and collided with the Plaintiff’s vehicle.
[8] As a result of the accident the plaintiff suffered serious personal injuries, pain and suffering, loss and damages. He required an intensive medical care. The particulars of injuries contained in paragraph 10 of the Statement of Claim were a fracture of midshaft of right femur and injuries to the right leg.
[9] Subsequently the Second Defendant was charged for the offence of dangerous driving pursuant to Section 98 (1) and 144 of Land Transport Act 1988. The charge was filed at the Nausori Magistrate Court, being Traffic Case Number 58 of 2002.
[10] After an extensive pre-trial conference amongst the counsels for the respective parties the Plaintiff intends to join the Third Parties as the Third Defendants During the pre-trial conference, it appeared to the Plaintiff and the current Defendants that the most prudent course to take would be for the Plaintiff to join the Third Parties as Defendants. It was a possibility that there may not be a Third Party claim by the First and Second Defendants against Third Party. This is reflected in the statement of defence of the Third Parties to the Defendant’s Statement of Claim which was filed on 20th May, 2003. At paragraph 10 of the Statement of Defence, the Third Parties plead:-
"(10) – Further and or in the alternative, the said collision was caused and / or in the alternative contributed to by the negligence driving of one Vinesh Prasad f/n Ram Narayan who was at all material times driving motor vehicle registration number CG 820 from the Saweni Serua Road into Princess Road which cause the second Defendant agony of the moment to take evasive action thereby causing a collision between the vehicle driven by him and the Plaintiffs.
Particulars of negligence of Vinesh Prasad
[11] In the pre-trial conference minutes under the heading "Issues to be determined by the court" the issues singled out by the parties which give rise to the present application are as stated as follows:-
The application
[12] There are two distinct orders sought in the application. The First and Second Defendants have no objection to the application. In fact they tacitly support the application.
First Order
[13] The first order sought is the joinder of Ganesh Prasad as a co-plaintiff. He seeks to be joined in the proceedings for the purposes of claiming damages sustained to motor vehicle registration number CO 0180. I have already stated the vehicle was co-jointly owned by Ravinesh Prasad and intended second plaintiff. The application by Ganesh Prasad is within the limitation period of 6 years. There is no objection to him being joined as a Plaintiff, even by the Third Parties. Accordingly an order in terms of paragraph 1 of the Notice of Motion is granted by consent of all the parties.
Second Order
[14] The difficulty arises with the joinder of the Third Parties as Third Defendants, which is the second order sought. This joinder extends to the claim for damages in personal injury. The basis of the joinder is contained in paragraph 3 the supporting affidavit of the Plaintiff, in which he deposes the following:-
"...and Binesh Prasad (f/n Ram Narayan) and Ram Narayan (f/n not known to the Defendant) both of Muaniweni, Naitasiri as the third Defendant in this proceeding reason being that the accident which occurred on or about the 5th June, 2001 on Princess Road, Seweni, Nausori was also due to the negligence of the said Binesh Prasad who drove the Motor Vehicle registration number CG 820 owned by Ram Narayan came on Serua Road without any proper lookout when turning left into Princess Road going towards Nausori resulting in the second Defendant came on to the wrong side of the road and collided with my vehicle which was on the correct side of the road".
(emphasis added)
[15] The primary objection taken by the Intended Third Party is that this is a claim in personal injury for which the limitation period prescribed under section 4 (1) (a) of the Limitation Act is three years. From the accrual of the cause of action, three years expired on 14th June, 2004. This application was filed on 10th October, 2006, which is well outside the limitation period.
[16] However, the substantive action against the other alleged tort-feasors was filed within the limitation period, on 5th February, 2003. I may add that the Third Parties were joined on 8th July, 2003 pursuant to an Order of His Lordship Mr. Justice Pathik. It was an Order which was granted by consent of the Defendants and Third Parties. In other words, the Third Parties were joined as parties to this proceedings within the limitation period without any objection.
[17] Thereafter an acknowledgment of service was entered on behalf of the Third Parties by the present solicitors. Next a Summons for Directions for Third Party was issued. A Statement of Defence of the Third Parties was filed on 23rd September, 2003, a period within the limitation period. In a nutshell, the position of the Third Parties then was that at the time of filing of the Statement of Defence they had within their knowledge the requisite documents or evidence pertaining to the said accident.
[18] The Third Parties are now being joined as defendants in the proceedings. Whilst the nature of the cause of action in substance is different to that of the Third Party Proceedings, which is really between the Defendants and the Third Parties, the material facts on which the Defendants rely for a Third Party Proceedings is the same as the one which the Plaintiff relies against the intended Third Defendants. In other words the Intended Third Defendants (the third parties) have already filed a defence relating to the claim which the plaintiff is now alleging against them. However the Plaintiff’s claim or cause of action now comes after the limitation period has expired. The question is; should the court grant the Plaintiff leave to join the current Third Parties as Third Defendant in this proceedings?
[19] All the parties concerned filed helpful submissions.
Submissions
[20] Mr. Kapadia submitted that the present application is made pursuant to Section 23 of the Limitation Act (Cap 35). He submitted that under this provision the Court has an unfettered discretion to allow a joinder of a party, even after the expiry of the limitation period. On the particular circumstances of this case no prejudice would ensue as the proposed defendants are already parties to the proceeding.
[21] He further relies on a decision of His Lordship Mr. Justice Pathik in Dorney –v- Sunflower Air Limited civil action No. 460/1989.
[22] Ms. Kenilorea, on the other hand seeks the dismissal of the application on the basis of the delay and the prejudice flowing therefrom.
Consideration
[23] The starting point for the consideration of the applicable law is Order 20, rule 5 of the High Court Rules 1988, under one of the provisions on which this application is made. That rule provides:-
"5 – (1) 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 term as to costs or otherwise as may be just and in such manner (if any) as it may direct" next order 15 rule 6 (1) provides:-
"no cause or matter shall be defeated by reason of the mis joinder or non joinder of any party; and the court may determine the issues or question in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter"" the aforesaid under order 15 rule 2, a court is vested with the wide discretion at any stage of the proceedings ""as it thinks just and either of its own motion or on the application –
(a) whether any person who has been ......
(b) whether any of the persons to be added as a party namely
(i) any person who ought to have joined the party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be ..........and completely determine and adjudicated upon, or (ii) (ii)any person between who and any party to the
cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter"".
[24] Furthermore Order 15, rule 6(5) provides::-
"No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either –
(a) the relevant period was current at the date when the proceedings were commenced and it is necessary for the determination of the action that the new party should be added or substituted, or
(b). the relevant period arises under the provisions of sub paragraph (i) of the provision to paragraph or (1) (d) of the Limitation Act and the Court directs that those provisions should apply to the action by or against the new party. In this paragraph (any relevant period of limitation) means a time limit under the limitation act. In this proceeding the relevant limitation period is 3 years from the date on which the accident occurred.
[25] The next important provision which was referred to by both the counsels is section 23 of the Limitation Act. Section 23 of the Limitation Act states that ""Where an action has been commenced within any period of limitation prescribed by this or any other Act and after the expiry of such period, it transpired that there has been mis-joinder or non-joinder of any party to the action, the court may order that any other party may be joined in the action not withstanding that the period of limitation has expired against that other party"
[26] The intent and purpose behind Order 15, Rule 6 is to give a very wide power to the court to allow joinder of a party to ensure the determination of all the issues in a proceedings pending before it In Lucy –v- W. T. Henleys Telegraph Works Co. Ltd Imperial Chemical Industries Ltd [1970] 1 QB393 at 404 p Lord Denning said; "It gives the court power to add a person as a defendant if his presence is necessary to ensure all matters in dispute are effectively and completely determine;"". This rule operates in congeniality with the general proposition of law that multiplicity of actions arising out of the same fact amounts to abuse of the process of the Court.
[27] The Counsels in this matter are in agreement that Order 15, Rule 6 (5) when read in conjunction with Section 23 of the Limitation Act must give effect to Order 15, Rule 6 (1) and 2.
[28] Section 23 of the Limitation Act, together with the respective rule has been considered in numerous cases. Without referring to a plethora of authorities on this subject, I find the relevant law is discussed with sufficient clarity and detail by His Lordship Mr. Justice Pathik in the case of Dorney -v- Sunflower Airlines Limited [1994] FJHC 176. The primary facts were that Sunflower Airlines Ltd had an aircraft accident in which late Joh William Dorney passed away. The plaintiff (the widow) instituted an action against Sunflower Airlines claiming damages. After the institution of the action within the limitation period, the counsel obtained discoveries on Summons for Directions. One of the documents discovered was an Aircraft Accident Investigation Report. After reading the report, it occurred to the counsel that there was a meritorious cause of action against Civil Aviation Authority of Fiji which was not a party to the proceeding. Civil Aviation Authority of Fiji is then was the statutory body vested with the power to undertake all regulatory works pertaining to the aviation industry. However, by then the limitation personal had expired. His Lordship considered the provisions of Section 23 of the Limitation Act at length. His Lordship cited a passage, from Halsbury’s Laws of England 4th Ed. Vol. 28 para 694 as to the matters which the court must consider in determining an application for joinder where the limitation period has expired under section 23 of the Limitation Act. The relevant passage of Halsbury’s reads::-
"694. Court's power to override time-limits. If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which (1) the provisions in respect of the time-limit for personal injury actions or actions under the Fatal Accidents Act 1976 prejudice the plaintiff or any person whom he represents, and (2) any decision of the court would prejudice the defendant or any person whom he represents, the court may direct that those provisions are not to apply to the action or are not to apply to any specified cause of action to which the action relates. In so acting, the court must have regard to all the circumstances of the case and in particular to (a) the length of, and the reasons for, the delay on the plaintiff's part; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed; (c) the defendant's conduct after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the defendant's act or omission, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. In applying these principles the court's discretion is unfettered."
[29] Ms. Kenilorea appearing for the Third Party does not question the general and well established principles of law as set out in the Halsbury Laws of England. In a very comprehensive submission, she very candidly agreed that the principles as set out in Dorney –v- Sun Flower Airlines Ltd (supra) cited from Halsburys apply to the present case.
[30] Next she addressed on the factors which the Court must take into account in the exercise of discretion. The plaintiff in a detailed submission in rebuttal also addressed on the respective points raised by Ms. Kenilorea.
[31] I will begin my consideration of the application on the basis of the settled law that the Court has a wide discretion to allow a joinder under Section 23 of the Limitation Act read in conjunction with Order 15 rule 6 of the High Court Rules 1988. Before I proceed to consider the individual ingredients or elements just to reiterate the primary facts are that this action was commenced within the statutory period prescribed by Section 4 (1) (a) of the Limitation Act. The Third Parties were joined as parties to this proceedings within the limitation period. Furthermore the parties convened a substantive Pre-trial Conference in which they discussed and canvassed a number of issues relating to the cause(s) of the accident. I will repeat that the present application is born out of the discussion of parties during the pre-trial conference.
(a) Length and reason for the delay on the plaintiff’s part
[32] On behalf of the Plaintiff it is conceded that the delay was for a period of two years. However, they submit that it is not excessive given the particular facts of this case. Reference was made to the fact that the Third Parties were not oblivious of the proceedings or the facts of this action. They have been in the proceedings since 2003 and have actively participated ever since they were joined. In Buck –v- English Electronic Co Ltd [1978] 1 ALL ELR 271 at 275, in respect of delay, it was said::-
"Although a sort of pattern has evolved as a useful guide by indicating that ""five or six years delay raises the presumption of prejudice to a defendant, it is a rebuttable presumption. There are cases where the court of appeal has allowed an eight or nine years delay. As Harman earlier observed in Sprigs -v- Norwood Trawlers, you cannot have a calendar which divides the ordinary period of delay from the inordinate. Each case depends on its own fact."
(emphasis added)
I find although the delay in this case is for a period of 2 years, during the said period, the Third Parties have been actively engaged in the proceeding. Thus are fully conversant with it.
[33] The reason although not expressly stated but which appears from the respective submissions of the parties, is that it was not until the pre-trial conference was convened, it did not occur to the Plaintiff that Third Parties could possibly be joined as substantive defendants. In any event whether they are joined or not, the Third Party proceedings were sufficient to take care of the totality of the claim in the event the Court were to rule that the Third Parties contributed to the accident.
[34] If the defendants do succeed in their claim, certainly the Third Parties will have to indemnify any award of damages. In other words, with or without the present application, the Third Parties could not have avoided liability if one was found to be by the court. Only difference is the claimant, that is, Plaintiff or the Defendants. I am satisfied that the first element is duly explained.
Second requirement
[35] The second requirement which the court is required to consider is the extent of ""abuse or likely abuse by the Plaintiff or the Defendant is or is likely to be less cogent and if the action had been brought within the time allowed"". In my view this is answered simply by the Third Party proceedings itself. The cogency of the evidence appears in the statement of defence of Third Parties. The allegations against them are substantive and serious in nature. The cause of accident is either through the fault of First Defendant or First Named Third Party, or contributed to by each of them to some degree. By allowing the application, it will not alter the parties position as to their quotient of liability, except, that the payment of any judgment sum. If joinder is allowed the sum must be paid directly to the Plaintiff. Whereas currently, the Third Parties are to indemnify the defendants who are to make good any judgment of the court. Further, after the joinder the Plaintiff will be required to prove the negligence, as opposed to the Defendants in the Third Party procedure. I am satisfied this requirement is also fulfilled.
Third, Fourth and Fifth requirement
[36] The requirements and set out in paragraph C, E, and F are as follows:-
"(c) the defendant's conduct after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the defendant's act or omission, to which the injury was attributable, might be capable at that time of giving rise to an action for damages";
[37] The third parties or the intended defendants have been part of the proceedings all through out. There is no suggestion of any misconduct on their part in this proceedings. They have provided the necessary information. However in this country the legal proceedings are conducted in such a manner, that all parties are equally to be blamed for lack of disclosure at preliminary or early stages of a proceeding. It is only after a forced pre-trial conference between the parties and in this instance, I must confess after numerous adjournments, that these issues were thoroughly thrashed-out by the counsels. Eventually in the pre-trial conference these issues emerged. In other words, be that as it may, the ultimate question the court will have to decide is as per the pleadings with the Intended Defendants and Third Parties. By them being joined the claim as to liability virtually remains the same except the claimant changes. So I do not see any difficulty at this stage of third parties being joined as defendants. They can simply regurgitate the defence which they have filed in response to the Defendants claim. In my view the Plaintiff has acted without any delay after becoming aware of the new and additional facts.
[38] Another factor which I must reiterate is that this application will not in any way affect the third party proceedings between the First and second Defendants and the third parties. But to contrary, it may enhance this proceedings within the statement of claim which the plaintiff intends to file and resolve all the issues at once.
(b) Prejudice
[39] Next question is "What if any prejudice which the intended defendants are likely to suffer? On behalf of the intended third defendants, it is argued by Ms. Kenilorea that the joinder will be prejudicial to the new parties as it will be denied a limitation defence which was open to it, if the plaintiff were to file a fresh action. To that the law is very clear. The limitation defence is not taken away from the parties even after the joinder application. Even if it was so, Section 23 is specifically enacted for the purpose of allowing a joinder after the expiration of the limitation period. Really, I do not see any merit in that submission. Secondly, which is rather vague is the argument that the third parties may be denied in putting further evidence. The trial is still pending. No evidence has yet been called. At any event, no such particular evidence was specifically alluded to in the affidavit. Further, they argue that any opportunity for settlement is foregone. Again, I do not see any logic in that submission. Settlement requires mutuality of the parties, who all are free and independent to attempt or settle irrespective of this action or for that matter even after a judgment. Needless to mention generally settlements are deferred until the eve or day of the trial.
[40] Ms. Kenilorea in addition stressed that the third parties will be prejudiced by being put to some expenditure, and much needed time will be wasted in establishing their defence to the plaintiff claim. This concerns duplicitous costs. Indeed, I agree with the counsel for the Intended Defendants that there will be some added expenditure. However, the expenditure which is alleged is not going to be of a substantive amount. The issue has been thoroughly canvassed in the pre-trial conference minutes. In fact, the issues to which I have already alluded to succinctly states that the court will be required to determine the issue of negligence between the defendant and third parties, based on the current pleadings. That position still remains in so far as any degree of liability is concerned by allowing the present application. Whatever contribution or indemnity the First and Second Defendant may get against the Third Parties, the court will actually decide it on the pleadings as well as in the trial by apportioning the damages and the degree of culpability. However, for the expenditure the Third Defendants can adequately be compensation by an award of costs. And as for time all that needs to be done is a statement of defence is to be filed to the claim and a reply. Thereafter the matter will be ready for trial.
[41] It must also be noted, more or less the issues have already been settled in the third party proceedings. In that case I can not see any reason why it will be in-equitable (as argued by Ms. Kenilorea) to allow the plaintiff to join the Third Parties as Intended Defendants.
Joinder Necessary
[42] Another factor which I must take into account is whether the joinder is necessary. I have already discussed at length, the issues as they appear in the pre-trial conference minutes, as well as the discussion between the parties related to me through the submissions, it is absolutely necessary that the Third Parties be joined as Defendants. Ultimately the parties presence in the appropriate capacity in Court will ensure a complete and full adjudication of all issues of liability and damages pertaining to the respective parties. In this instance the issue of liability to plaintiff and contribution between the tort-feasors necessitates the joining of the third parties as defendants.
[43] For the foregoing reasons I am satisfied that the Plaintiff discharged the burden. Accordingly, I do not have any hesitation to allow the application for the joinder.
Conclusion
[44] For the foregoing reasons, I am satisfied that the application for the joinder be allowed and I so order. The amended writ is to be filed and served to all the parties by 12th September, 2008 and any defence thereto to be filed by 30th September, 2008. I will adjourn this matter to 1st October, 2008 for further directions.
Accordingly so ordered.
J. J. Udit
Master
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