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Chandra v City Auto Trimmers Ltd [2011] FJHC 760; HBC270.2008 (22 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 270 of 2008

BETWEEN:

ASHWIN CHANDRA (father's name Satish Chandra), SATIKA DEVI CHAND (father's name Satyanand) in their own behalf and as next kin of SHAGRIKA ASHLYN CHAND (an infant), ADARSH JASHWIN CHAND (an infant) and ADESH ASHWIN CHAND (an infant).
PLAINTIFFS

AND:

CITY AUTO TRIMMERS LTD, a limited liability company having its registered office at 10 Jai Hanuman Road, Vatuwaqa, Suva.
FIRST DEFENDANT

AND:

PRAMOD PRAKASH (father's name not known to the Plaintiffs) of Suva.
SECOND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Ms. A. Maharaj of MC Lawyers for the Plaintiff
Mr. Ronald Singh of Patel and Sharma Lawyers for the 1st and 2nd Defendants

Date of Hearing: 07th October, 2011
Date of Ruling: 22nd November, 2011

RULING

1. INTRODUCITON

1. This application is made on behalf of the two children who got injured from the motor accident, while they were travelling in a vehicle which collided with the vehicle driven by the 2nd Defendant.
   

2. FACTS
   

2. The applicants are two children who were travelling in a vehicle that collided with the vehicle driven by the 2nd Defendant.
   
3. The vehicle that collided was driven by the 2nd Defendant and being the servant and or agent of the first Defendant.
   
4. The 2nd Defendant pleaded guilty for the Dangerous Driving and was also finned and his driving licence was also suspended fro 6 months.
   
5. The two children sustained injuries due to the collusion of the vehicle they were travelling with the vehicle driven by the Defendant.
   
6. It is to be noted that the above facts were also submitted as agreed facts in the pre trial conference that was filed with copy pleadings in this case on 7th May, 2010. The pre trial stages have been completed and the matter is ready to fix for trial before a judge and it was adjourned to registry to allocate to a judge.
   
7. Both of the children suffered from fractures, but one child's fracture has fully healed without any disability, where as the other child has a 4% total disability as a total person.
   

100. LAW
     

8. The law relating to the interim payment is contained in Order 29 rules 9 to Order 29 rule 18 of the High Court Rules of 1988.
   
9. In terms of Order 29 rule 10 an application for interim payment can be made any time after the writ is served and the time limit for the acknowledgment of the writ has expired. So even before the statement of defence is filed, an application for interim payment can be made by a Plaintiff. So even between the time after the completion of the pretrial stages and the fixing before a judge for trial an application for interim payment can be made.
   
10. The mode of application for the interim payment is contained in Order 29 rule 10 (3) which reads as:
    

(3) An application under this rule shall be supported by an affidavit which shall-

(a) Verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application;

(b) Exhibit any documentary evidence relied on by the plaintiff in support of the application

11. The Order 29 rule 10(4) states that the applicant of an interim payment should file 'The summons and a copy of the affidavit in support and any documents exhibited thereto shall be served on the defendant against whom the order is sought not less than 10 clear days before the return day.' This is done to allow the Defendants to examine the documents carefully, before coming to court to inform their position clearly and if needed to obtain an alternate medical report or other relevant information and to file them before court without any unnecessary delay. The Defendant objected at the hearing that they were not served with adequate time, but perusal of the case would show that the Defendant have not taken this objection in terms of Order 2 rule 2(2) at the earliest opportunity before taking any step by way of a summons and on 23rd August, 2010 the Defendants have sought 21 days time to file an affidavit in opposition, which they failed to file. The Defendant did not object to the time they were granted to appear before the court, on the 23rd August, 2010, and the purpose of the said requirement is clear, and now it cannot be a reason to strike out this summons. It should be noted that any objection for such irregularity should also be through a summons in terms of Order 2 rule 2(2). It is to be noted that as per Order 29 rule 10 there is no requirement to fix a formal hearing of this application and the requirement of at least 10 days before the first call date is meant because of that and in any event there is no prejudice as the Defendants were granted more than 2 months before the hearing of this application.
    
12. Once the applicant had filed summons and an affidavit with supporting documents and served them to the defendants at least 10 days before the returnable day, an opportunity should be granted to the defendant to refute and or deny and or to present its affidavit in opposition, though it is not specifically mentioned in the High Court Rules of 1988, it is fundamental thing that rules of natural justice should prevail in the exercise of discretion of the court as the court has to award an interim payment that court thinks just, clearly indicating a discretion. In this case though an opportunity was granted neither an affidavit in opposition nor written submissions were filed for the Defendants.
    
13. After an opportunity is granted for the Defendants to oppose the application, through an affidavit and or with supporting document, the matter can be heard and Order 29 rule 11 deals with the requirements to consider before an interim application is made. It states as follows:
    

Order 11(1) If on the hearing of an application under rule 10 in an action for damages, the Court is satisfied-

(a) That the defendant against whom the order is sought (in this paragraph referred to as 'the respondent') has admitted liability for the plaintiff's damages; or

(b) That the plaintiff had obtained judgment against the respondent for damages to be assessed; or

(c) That if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them the Court may, if it thinks fit and subject to paragraph(2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross – claim or counterclaim on which the respondent may be entitled to rely.

(2) No order shall be made under paragraph (1) in an action for personal injuries if it appears to the Court that the defendant is not a person falling within one of the following categories, namely:

(a) A person who is insure in respect of the plaintiff's claim.

(b) A public authority; or

(c) A person whose means and resources are such as to enable him to make the interim payment.

14. In Schott Kem Ltd v Bentley and others (1991) 1QB 61 the issue of interim payment was dealt comprehensively from page 69 to 75 and, the principles laid down in the determination of the interim payment can be summarized below:
    
    • (1) That rules 11 and 12 of Order 29 form part of a single code; see Shearson Lehman [1987] 1 WLR 480, 492H, per Nicholls LJ. That under both rules the court approaches the matter in two stages; That at the first stage the court has to consider whether it is 'satisfied' of one of the matters set out in sub paragraphs (a) (b) and (c) of the rule 11 of Order 29.
      
    • (2) That in order for the court to be satisfied that the plaintiff would obtain judgment "something more than a prima facie case is clearly required, but not proof beyond reasonable doubt. The burden is high. But it is a civil burden on the balance of probabilities, not a criminal burden" This was held in the case of Shearson Lehman [1987] 1 WLR 480, 489A per Lloyd LJ.
      
    • (3) That at the second stage the court, if satisfied that the plaintiff would recover a substantial sum may then proceed, if it thinks fit, to order an interim payment "of such amount as it thinks just" At this stage under rule 11(1) the payment must not exceed 'a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross claim or counterclaim on which the respondent may be entitled to rely."
      
    • (4) That in an action for personal injuries rule 11(2) makes express provision concerning the means and resources of the defendant. Thus rule 11(2) (c) places an absolute embargo on the making of an order for interim payment in personal injury case where the means and resources of an uninsured defendant are inadequate. In other cases the means of the defendant are relevant though they are not decisive. Thus if a defendant's resources are such that an order for interim payment would cause irremediable harm which cannot be made good by an eventual adjustment or repayment under rule 17, that is a very relevant factor to be taken into account in fixing the amount of any interim payment. This was decided in the case of Quadrex [1989] QB 842, 867B per Sir Nicolas Browne- Wilkinson V.C.
      
    • (5) 'That interim payment procedures are not suitable where the factual issues are complicated or where difficult points of law arise which may take many hours and the citation of many authorities to resolve.' Schott Kem Ltd v Bentley and others (1991) 1QB 61 at p73
      
15. In the said case of Schott Kem Ltd v Bentley and others (1991) 1QB 61 at p 73 & 74 it was further held that:
    

'The first submission was that it is for a plaintiff to satisfy the court of his need for an interim payment of that he will suffer prejudice if he does not obtain one and that in the present case Schott Kem had produced no evidence of need or prejudice.

In support of this submission counsel relied on the dictum of Croom Johnson LJ. in Breexe v R McKennon & Son Ltd. (1985) 32 B.L.R. 41, 50, where he said that the plaintiff's evidence should explain why the order is required and cover "the need for the plaintiff to have the money" In addition reliance was placed on the following passage in the judgment o Nicholls L.J in Shearson Lehman [1987] 1 W.L.R. 480, 492 G, where he said:

'The underlying purpose of [rules 11 and 12] is the same: to mitigate hardship or prejudice to a [plaintiff] which may exist during the period from the commencement of an action to the trial."

Moreover, reference might also have been made to a similar dictum as to the underlying purpose of the rules of Ralph Gibson L.J in Ricci Burns Ltd v Toole [1987] 1 W.L.R. 993, 1002b.

Counsel for Schott Kem, on the other hand, relied on the fact that in Shearson Lehman [1987] 1WLR 993, Lloyd L.J. rejected an argument on behalf of the defendants that this Part of Order 29 was only intended to apply in very special circumstances where the plaintiff can show real hardship.

As I understand the present practice, it is customary in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need. This is a sensible course because large interim payment in such case may lead to difficulties is an order of or repayment is subsequently made under Ord29 r 17.

I am not satisfied, however that there is any restriction implicit in the rules which prevent an interim payment order being made in the absence of evidence of need or prejudice. By the use of the words "if it thinks fit 'both rule s11 and 12 confer discretion on the court whether to order an interim payment at all. Moreover the amount of the payment is expressed to be 'of such amount as [the court] thinks just' with that additional limitation in the case of damages the amount is not to exceed' a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff' after taking into account the matters specified. For my part I can see no basis for any further limitation on the jurisdiction of the court to order interim payments other than those set out in Order 29 itself.

I would therefore reject the argument that it is necessary for Schott Kem to produce evidence of need or prejudice."

16. In claims due to the personal injury, the need for such speedy and quick interim relief is fully justified considering the plight of the Plaintiff. The Plaintiff has already gone through pain and suffering and sometimes, even present and future economic loss. In certain circumstances, even the award of interest for the damages, for the delay, would not sufficiently compensate the victim, and an interim payment will give some solace though the full payment is delayed due to reasons beyond control of the court.
    
17. So, the interim payment can be regarded as a right of a Plaintiff recognized in law in terms of Order 29 rule 11 of the High Court Rules of 1988. When the requirements in the said provision of the law are fulfilled, a court can award an interim payment to a Plaintiff and any extra burden other than what is stipulated in the law is not warranted and would curtail the applicability of the provision. It is clear that in order to obtain an interim payment. The Plaintiff is not required to satisfy his need for an interim payment or that he will suffer prejudice if he does not obtain an interim payment as that is not the basis on which interim payment is awarded. It is based on the delay in the disbursement of damages in a case where the court is satisfied that the Plaintiff would receive substantial damages upon the materials before it, at the hearing of the interim application. The only requirements that the Plaintiff has to satisfy are laid down in Order 29, and any additional requirements that has not been expressly provided, should not be considered. The said case Schott Kem Ltd v Bentley and others (1991) 1QB 61 supports the said proposition, and Neill L.J at p 74 specifically, stated that production of evidence of need of an interim payment or prejudice if an interim award is not made is clearly, outside the scope of an inquiry of interim payment. So, a court would not consider those as necessary requirements in any interim payment application.
    

4. ANALYSIS
   

18. The Defendant has pleaded guilty to the offence of dangerous driving and the two children were inside the vehicle that collided with the vehicle driven by the 2nd Defendant and it is an agreed fact that both of the children were injured from the said accident and the 2nd Defendant was also convicted for Dangerous Driving.
    
19. There was no charge against the driver of the vehicle where the two children were travelling at the time of the accident.
    
20. The injuries to the two children from the accident are summarized in their respective medical reports that are annexed in support and the supplementary affidavit as follows
    
    1. Miss Shagrika Chand- 'In summary Miss Shagrika Chand sustained a significant fracture of her right hip. Radiaologically her femoral neck has shortened resulting in a limb length discrepancy of 2 cm with impaired external rotation of her hip. She is unable to sit cross legged and has pain on running. Her limb length discrepancy may be compensated by use of a shoe raise or formal limb lengthening surgical procedure when she reaches skeletal maturity.'
       
    2. Mr. Adarsh Chand - 'In summary Mr. Adarsh Chand sustained a significant injury to his left leg which was treated appropriately in a plaster of Paris. On follow up Mr. Chand is back to his pre injury level of function. He is able to participate in contact sports. There was no residual deficits in his left leg on examination and his x rays had confirmed that his fracture had healed well.'
       
21. It is to be noted that the absence of total disability is not a reason to refuse damages for the past pain and suffering as there are evidence of severe injuries to children. The absence of total disability will only affect in the assessment of the future economic loss and any present and future pain and suffering.
    
22. There is no affidavit in opposition filed by the Defendant to refute the evidence submitted by the applicant. The main contention of the Defendant is that in order to obtain interim payment the applicant is required to demonstrate the need for interim payment. There is no evidence of need contained in the affidavit in support or in the supplementary affidavit.
    
23. It should be noted in the case of Schott Kem Ltd v Bentley and others (1991) 1QB 61 at p 73 & 74 it was held that:
    

As I understand the present practice, it is customary in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need. This is a sensible course because large interim payment in such case may lead to difficulties is an order of or repayment is subsequently made under Ord29 r 17.

I am not satisfied, however that there is any restriction implicit in the rules which prevent an interim payment order being made in the absence of evidence of need or prejudice. By the use of the words "if it thinks fit" both rule s11 and 12 confer discretion on the court whether to order an interim payment at all. Moreover the amount of the payment is expressed to be 'of such amount as [the court] thinks just' with that additional limitation in the case of damages the amount is not to exceed' a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff' after taking into account the matters specified. For my part I can see no basis for any further limitation on the jurisdiction of the court to order interim payments other than those set out in Order 29 itself.

I would therefore reject the argument that it is necessary for Schott Kem to produce evidence of need or prejudice."

24. So, there is no requirement in terms of the Order 29 rule 10 to demonstrate any additional requirement as to the need to obtain interim payment, but in the absence of need demonstrated in the affidavit in support the court should be mindful that order of a large interim payment as held in the case of Schott Kem Ltd v Bentley and others (1991) 1QB 61 'may lead to difficulties is an order of or repayment is subsequently made under Ord29 r 17.' This can be a consideration specially because the interim payment is sought in favour of two children. The need can be considered as a factor in deciding on the quantum in the exercise of courts discretion, but certainly it is not a sine qua non, for the award of interim payment.
    
25. I am convinced that on the evidence before me that if the action proceeded to trial, the two children would obtain judgment for substantial damages against the Defendant, and the Defendant is also insured for third party liability.
    

5. CONCLUSION
   

26. It is clear that both children would be granted substantial damages for the past pain and suffering since there is unchallenged evidence of severe injuries sustained due to the said motor accident. The Defendant has pleaded guilty to the offence of dangerous driving and his driving licence was also suspended for a period of 6 months. The children has not shown any need for this interim application. In this action all the pre trial stages were completed and the matter was adjourned to the registry to allocate a judge for hearing on 8th October, 2010. Till this application was made in August, 2011 the matter has not proceeded before a judge for trial. Considering the circumstances of the case I will order interim payment of $5000 for each child.
    
27. Since the interim payment is granted for the children the money should either be deposited with the public trustee or with an interest bearing account in the High Court. Considering the best interest of the children concerned, it should be noted that the Public trustee is unable to provide interest for the money already deposited on behalf of the children by an order of the court for years 2010 and 2011 upon the withdrawal of such money after attainment of age of majority and the reason given for such failure is that the accounts of the Public Trustee Corporation have not been audited for year 2010. Even when requested for details of the past interest the Public Trustee was unable to provide details of interest accrued on yearly basis, in order to verify the correctness of the calculation of interest, bearing in mind the overriding principle of best interest of the child.
    
28. It is to be noted that Public Trustee Corporation would also deduct various charges according to their rules and that would seriously diminish the fund available for the child. This is specially so when the fund is small as in this case.
    
29. Considering all the above factors I order the money to be deposited in an interest bearing accounts in the High Court of Suva by the supervision of Chief Registrar.
    

6. FINAL ORDERS
   
   1. An interim payment of $5000 of each of the child is granted and the Defendants are ordered to pay the said 10,000 jointly and or severally.
      
   2. The money should be deposited in two separate interest bearing accounts in favor of each child (namely Miss Shagrika Ashlyn Chand and Mr. Adesh Ashwin Chand) in the High Court within 21 days.
      
   100. Cost of this application will be cost in the cause.
        

Dated at Suva this 22nd day of November, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva