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Mainayala v Ali [2010] FJHC 503; Civil Action 26 of 2010 (15 November 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 26/10

BETWEEN:

PAULA MAINAYALA of Vunikura, Cakaudrove, unemployed.
PLAINTIFF/ APPLICANT

AND:

SAUKAT ALI of Dreketi, Macuata
1st DEFENDANT

AND:

DREKETI CONTRACTORS LIMITED a limited liability company having its registered office at Dreketi Macuata.
2nd DEFENDANT

Counsel for the Applicant: Sarju Prasad Esq.

RULING

THE APPLICATION
This is an application for leave to file a claim out of time pursuant to sections 16 & 17 of the Limitation Act Cap. 135. This is a personal injury matter and that Plaintiffs in these cases are required to file a claim within three years and a plaintiff who wishes to file a claim after three years must first seek leave.

The applicant in his affidavit in support of the application says that on the 12 January 2005 he was cutting log at a log landing skid when the foreman drove a loader from behind him causing a stack of logs to fall on him crushing his right leg against the log he was cutting. He received serious injuries and was rushed to hospital to Savusavu and thereafter to Labasa Hospital and then to Colonial War Memorial Hospital Suva, where his injured leg was later amputated below the knee.

The applicant states in his affidavit that after the accident he went back to his village at Vunikura, Buca Bay and has remained there since. However after the incident his employer, the second defendant completed a "Form C" at the Labour Department and also reported the accident there, it appears that that "Form C" is an accident report filled by the employer.
In his first affidavit sworn on the 22nd July 2010 he states in paragraph 13:-

"That I had no idea or knowledge whatsoever that I could claim against the 1st Defendant or the 2nd Defendant for damages under the common law"

and again in paragraph 14:-

"That I had no idea or any knowledge at all about the claim under Workman's Compensation Act"

In the supplementary affidavit sworn on the 10 September 2010 he said in paragraph 7that:-

"I further asked them if there was any other way I could do the same claim but was advised that it was only done by Ministry of Labour under Workman's Compensation Act".

In paragraph 5 of the same affidavit he states that:-

"That I was advised by the said officers that the Ministry of Labour will be conducting an investigation in regards to the accident and they will be filing a claim under the workman compensation against the second defendant"

He further asked the doctor at the Labasa hospital whether it was possible for the Ministry of Labour to do the appropriate claim and get him the maximum compensation and the doctor advised him that the Ministry of Labour was the right authority to make the claim.

At the hearing of the application the applicant's counsel apart from referring to the affidavits by the applicant further added that the Labour Department had worked out a figure of $11,000:00 but that the Applicant had heard that some people who had injuries similar to his had received much more, a figure of $170,000:00 was quoted. He then, in the words of his counsel became confused and came looking for a lawyer. At the conclusion of the hearing Counsel for the Applicant was then requested to make submission to be filed before 17 September and that ruling to be on notice. Submission was received much later and the contents requires some attention as it appears that Counsel may have misconstrued the requirements for an application for leave under the Limitation Act more specifically what a material fact is.

THE COUNSEL'S SUBMISSION

The first part of the submission refers to the accident and how it happened and the fact that the applicant was fed up of waiting for five and half years and not getting any money so that in June of this year he came to the firm of Sarju Prasad Esq. That he was then told that he could have claimed under the Common Law but that he was out of time and that an application for leave will have to be made.

The second part of the submission refers to the law relating to application for leave under the Limitation Act. The last part of that portion of the submission states " It is submitted that the requirements of S.16(3) is fulfilled in totality as the Plaintiff in his affidavits sworn on 22 July 2010 and 10 September 2010 categorically states that he was not aware of the material facts or included facts of a decisive character that he could proceed against the Defendants under the Common Law and therefore settled for a cause of action under the Workmen's Compensation Act"

The Plaintiff further stated that he had taken appropriate advice from the Ministry of Labour and also from the doctors that the appropriate institution was the Ministry of Labour to get compensation for him. Therefore it is submitted that the Plaintiff had fulfilled the requirements of the relevant sections of the Limitation Act in making this application.

ANALYSIS of the APPLICATION

The written submission and the application made orally by the applicant's counsel shows that the material fact offered by the Applicant to show that he is entitled to leave to issue writ out of time is that he did not know that he could proceed against the defendants under common law. Or as stated in his affidavit:-

That I had no idea or knowledge whatsoever that I could claim against the 1st Defendant or the 2nd Defendant for damages under the common law"

Is the fact that the Applicant does not know that he could proceed against the defendants a material fact or fact of a decisive character within the meaning of section 16(3) of the Limitation Act? If the answer to this question is in the affirmative then the applicant is entitled to be given leave.

Section 16 sub-section 3 of the Limitation Act Cap 35 provides:-

(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-

The applicant in fulfilling the above provision must prove that the material facts relating to the cause of action, included facts of a decisive character which were at all times outside his knowledge.

In this case the cause of action for the applicant to prove is negligence and the material fact the provision requires is a material fact relating to negligence. This material fact or material facts relating to negligence (i.e. the cause of action) may include facts of a decisive character which the applicant did not know at the time. And of course having obtained this knowledge he must make an application to the Court for leave within twelve months of having obtained that knowledge.

What then are the material facts relating to negligence which the applicant must prove to be able to obtain leave. Section 19 defines what these material facts could be and they are:-

(a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

(b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;

(c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.

It is clear from the above that the material facts to which the provision refers are facts, which has to be pleaded and proved. The fact that the applicant did not know that he could proceed at common law could not be pleaded as a fact to be proved. The applicant had already sought and obtained the assistance of the Labour Department who were in the process, albeit, rather late to finalise payment to him under the Workmen's Compensation Act (Cap. 94). In the words of the Counsel the applicant settled for a cause of action under the Workmen's Compensation Act. The mistake the applicant made was in the delay in deciding which of two alternatives, the Common Law or Workmen's Compensation is to be pursued, although the cause of action was the same in both. This mistake of choice was one of law that is, which legal option was better, a claim under Common Law or under the Workmen's Compensation Act. This is most unfortunate in this particular case.

The Counsel for the applicant has offered the Court no evidence to support the application or to enlighten the Court as to why leave should be granted, and in my view, the proposition that the applicant did not know that he could seek a remedy through common law, is not a material fact which can be pleaded and therefore satisfy the requirements of sections 16 (3) and 17(2) of the Limitation Act.

Section 16 (3) uses the terms "material facts", "facts of a decisive character" and "outside the knowledge". These terms are defined in the Act in sections 19 (meaning of "material facts relating to the cause of action"), 20 (meaning of "facts of a decisive character" ) and 21 (meaning of "when facts will be taken as outside the knowledge of a person"). I find that on the facts none of the requirements of the said s16(3) have been fulfilled to enable the Plaintiff to claim an order granting the application under the provisions of that subsection.

In Tamudu –v- The Medical Superintendent of the Colonial War Memorial Hospital (2003) FJHC 301 Justice Pathik, in a matter similar to this had this to say:

"Under a somewhat similar provision to our own said sections of the Act, in Begg v Kruber Enterprises (Division Besser Qld Limited) Ltd (1990) 2 Qd R 301 the Full Court of Supreme Court of Queensland, in allowing the appeal against the extension of the limitation period dealt with the meaning and effect of the abovementioned terms. What was discussed there are relevant for the purposes of the issue before me and I therefore quote hereundom Commonwealth Law Bulletin January 1992 p.59 and adopt thpt them in this case:

"The Full Court of the Supreme Court of Queensland, in allowing the appeal, held that –

1. it was the facts constituting the negligence rather than the legal consequences of those facts which must be unknown to an applicant for an extension of time and the facts were within this applicant's knowledge at all material times; and

2. before September 1985 the respondent knew, or would have known if he had appropriate advice, that he had a permanent disability of his spine and the estimate of the Board was not a material fact."

What is perhaps the most important facet of this application is the meaning of the word "knowledge" whether actual or constructive of the facts to found a cause of action by the applicant. In my view knowledge and ignorance of the law if developed properly in this application may give rise to an exercise of the Court's discretion to grant leave particularly in view of the decision of Lymington M.R. in Halford v Brokers (1991) 1 WLR 428 at 423 (as quoted by Justice Pathik in Tamudu –v- Medical Superintendant of the CWM Hospital):-

"In this context "knowledge" clearly does not mean "know for certain and beyond possibility of contradiction". It does, however, mean "know with sufficient confidence to justify embarking on the preliminaries to the issue of the writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence".

In the absence of any explanation being offered by the applicant the Court could not on its own volition exercise its discretion.

CONCLUSION

In conclusion I would like to say that in an application for leave under the Limitation Act a total emphasis on the requirements of sections 16 (3) and 17 (2) should be made. The difficulty perhaps arose because of the way the provisions of the relevant sections of the Limitation Act is presented. This has made it very difficult for this Court to exercise any discretions, I note that this point has been raised on numerous occasions before by some of our more notable Honourable Judges. In this regard I again refer to what Justice Pathik said in Tamudu –v- The Medical Superintendent of the Colonial War Memorial Hospital (2003) FJHC 301:-

"Before parting with this case, it is unfortunate that in the present state of provisions of the Limitation Act I have to refuse the application either because the action is not commenced within the limitation period due to either ignorance of the law or financial difficulties. I echo the comments of the Court of Appeal in Sharma (supra) as well as those of Scott J in Shereen Wahidun Nisha f/n Rasul Khan and Tucker Group (Fiji) Limited (Civil Action No. 585/98) suggesting the need for 'reform' of the relevant provisions of the Act. Some of the sections I would say should be framed in simple language capable of being understood by a layman"

In view of the above the application is therefore dismissed and I make no orders as to costs.

H A ROBINSON
MASTER HIGH COURT LABASA

15 November 2010.