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Duruwaqa v Tagimakutu [2011] FJHC 785; HBC299.2010 (5 December 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 299 of 2010

BETWEEN:

SOVAIA BULILEKA DURUWAQA of Ucunivanua, Verata, Tailevu, Tertiary Student.
1ST PLAINTIFF

AND:

SALANIETA VONO of Kermode Road, Tavakubu Housing, Lautoka, Housemaid.
2ND PLAINTIFF

AND:

PENISENIYASI TAGIMAKUTU of Naitonitoni, Navua, Driver.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Daniel Singh for the Plaintiff
Ms. Prem Narayan for the Defendant

Date of Hearing: 27th July, 2011
Date of Ruling: 05th December, 2011

RULING

1. INTRODUCTION
   

1. Plaintiffs has filled this action against the Defendant for damages arising from a motor accident and the Defendant seeks further and better particulars from the Plaintiff before filing of the statement of defence. The Defendant's lawyer has written a letter seeking certain by a letter dated 23/11/10 particulars and the Plaintiffs have failed to provide particulars and this application is made in pursuant to Order 18 rule 11
   

2. THE LAW AND ANALYSIS
   

2. The Order 18 rule 11 states as follows
   

'11(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words

(a) ....

(b) ...

(2) ...

(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.

3. The Supreme Court Rules (1999) at p 327 state as follows
   

'General- the requirement to give particulars reflects the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly, without surprises and, as far as possible, so as to minimize costs (a view approved by Edund-Davies L. J in Astovlanis Compania Naviera SA v Linard [1972] 2 Q B 611;91972] 2 All E.R 647. (emphasis is added)

The function of particulars is accordingly

(1) To inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved (per Lindley L.J. in in Duke v Wisden (1897)77 L.T67 at 68.per buckley L.J in Young & Co v Scottish Union co (1907) 24 T.L R 73 at 74; Aga Khan v Time Publishing Co [1924] 1 K. B. 675 at 679):

(2) To prevent the other side from being taken by surprise at the trial(per Cotton L. H., in Spedding v Fitzpatrick [1888] UKLawRpCh 86; (1888) 38 Ch. D 410 at 413; Thomson v Birkley 91882) 31 W.R 230)

(3) To enable to be other side to know with what evidence they ought to be prepared and to prepare for trial( per cotton L. H ibid; per Jessel M.R in Thorp v Hodsworht [1876] UKLawRpCh 167; (1876) 3 Ch. D. 637 at 639; Elington v London Association for the Protection of Trade (1911) 27 T.L.R. 329 at 330):

(4) To limit the generality of the pleadings(per Thesiger L. J. Saunders v Jones [1877] UKLawRpCh 345; (1877) 7 Ch. D 435)or of the claim or the evidence (Milbank v Milbank [1900] UKLawRpCh 29; [1900] 1 Ch. 376 at p 385

(5) To limit an define the issues to be tired and as to which discovery is required (Yokshire Provident Life Assurance Co v Gilbert[1895] UKLawRpKQB 67; [1895] 2 QB 148 per Vaughan Williams J. H in Milbank v Milbank [1900] 1 Ch.385

(6) To tie the hands of the party so that he cannot without leave go into any matters not included (per Brett J. J. in Philipps v Philipps [1878] UKLawRpKQB 96; (1878) 4 Q.B.D 127 at 133; woolley v Broad [1892] UKLawRpKQB 146; [1892] 2 QB 317) But if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings (Dean of Chester Smlting Corp[1902] W.N. 5;Hewson v Cleeve [1904] 2 Ir. R 536).' (emphasis is added)

4. Where the information asked for is clearly necessary to enable the applicant properly prepare for the trial, on in other respects the application is a proper one, the information must be given, even though it discloses some party of the evidence on which the other party proposes to rely at the trial Marriaott v chamberlanin [1886] UKLawRpKQB 89; [1886] 17 Q B D 154 p 16
   
5. The questions that were requested by the Defendant's lawyer and the order of the court and its reasons are as follows
   

(1) Of paragraph 1, 'the First Plaintiff was born on 22 April 1987"

Request

(a) Please provide a copy of the First Plaintiff's birth certificate; and

(b) Please state precisely what tertiary institute the First Plaintiff was enrolled in 2007, on 10 October 2007.

Order: The request (a) and (b) should be allowed to ascertain the truth of the averments in the statement of claim and to eliminate the generality in the pleading.

(2) Of paragraph 2 "the Second Plaintiff was born on 16 February 1987"

Request

(a) Please provide a copy of the Second Plaintiff's birth certificate; and

(b) Please state precisely the extract tertiary institute the Second Plaintiff was enrolled on 10 October 2007.

Order; The request (a) and (b) should be allowed to ascertain the truth of the averments in the statement of claim and to eliminate the generality in the pleading

(3) Of paragraph 4 "...and collide with the vehicle registration number LM270 in which both the Plaintiffs were passengers:

Request

(a) Please state precisely as to who was the registered owner of the vehicle number LM270;

(b) Please state precisely as to who was driving the vehicle registration number LM270 at the time of the collision on 19 October 2007;

(c) Please state the exact number of passengers inside the vehicle registration number LM270 at the time of the collision;

(d) Please state precisely whether the Fiji Police Force (hereinafter referred to as 'the FPF') attended to the collision between the motor vehicles registration numbers LM270 and EL923 (hereinafter referred to as "the collision");

(e) Please state the exact time when the FPF attended to the collision;

(f) Please state precisely who was present at the time when the FPF attended to collision;

(g) Please state exactly whether the FPF prepared any sketch plans of the collision;

(h) If in the affirmative to (g) above, please provide a copy of the sketch plan; and

(i) Please state precisely the nature of damages caused to the vehicle LM270.

Order; the particulars sought (a) – (i) are essential to the Defendants to know inform the other side of the nature of the case and also to prevent generality. If the Plaintiff is unaware of (c) above, an approximate number can be given with liberty to provide the exact number within a time period, before the PTC is held.

(4) Of paragraph 5 "driving at an excessive speed'

Request

(a) Please state precisely the exact speed the motor vehicle EL923 was driven along Queen Road on 0 October 2007 prior to the collision;

(b) Please state whether the First and Second Plaintiffs hold a driver's licence to drive any motor vehicle;

(c) Please state precisely the exact speed limit along Queens Road where the collision occurred;

(d) Please state precisely the speed the motor vehicle LM270 was driving along Queens Road prior to the collision; and

(e) Please state precisely the exact nature of the white marking was in the middle of the road.

Order; The Plaintiff should be ordered to provide the above (b) to (e) as they would limit an define the issues to be tired as held in Yokshire Provident Life Assurance Co v Gilbert [1895] UKLawRpKQB 67; [1895] 2 QB 148. As to (a) the plaintiffs should provide an approximate speed to the best of its knowledge form the facts available to them.

(5) Of paragraph 7 headed Particulars of the Injuries of the First Named Plaintiff; Sovaia Bulileka Duruwaqa .. 'was rushed to the Lami Health Centre ... and suffered a dirty laceration ..."

Request

(a) Please state precisely the time when the First Plaintiff was attended to by the Lami Health Centre;

(b) Please state whether the Lami Health Centre made notes of the First Plaintiff's injuries upon attending to the First Plaintiff;

(c) If the affirmative to (b) above, please provide copy of the medical report;

(d) Please state precisely when the First Plaintiff was attended to by the Colonial War Memorial Hospital (hereinafter referred to as "the CWM Hospital") on 10 October 2010;

(e) Please state precisely the exact nature of injuries diagnosed by the CWM Hospital;

(f) Please state precisely whether the CWM Hospital made notes or prepared any medical report for the First Plaintiff;

(g) If in the affirmative to (f) above, please state the exact time of attendance to the Plaintiff and the date of the medical report; and if in the affirmative to (f) above, please provide a copy of the medical report.

Order; The above (a) to (g) is essential for the Defendants to ascertain the facts of the action and to eliminate generality as pleaded in the statement of claim without details as to the injury and its severity. This is to tie the hands of the party so that he cannot without leave go into any matters not included (per Brett J. J. in Philipps v Philipps [1878] UKLawRpKQB 96; (1878) 4 Q.B.D 127 at 133; woolley v Broad [1892] UKLawRpKQB 146; [1892] 2 QB 317) if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings (Dean of Chester Smlting Corp [1902] W.N. 5; Hewson v Cleeve [1904] 2 Ir. R 536 and it is essential to curtail the trial to real issues and time can be saved to all the parties.

(6) Of paragraph 7 headed Particular of the Injuries of the First Named Plaintiff; Sovaia Builika Duruwaqa .. "was thrown in front and was lying on the floor of the mini van"

Request

(a) Please state precisely whether the First Plaintiff was wearing a seat belt while travelling in the motor vehicle registration number LM270; and

(b) Please state precisely whether the other passengers travelling in the motor vehicle LM270 were wearing a set belt.

Order; (a) is allowed but not (b) as it is not an issue in this action as to what happened to other passengers.

(7) Of paragraph 7 headed Particulars of the Injuries of the First Named Plaintiff; Sovaia Bulileka Duruwaqa .. "she was discharged home with antibiotics"

Request

(a) Please state precisely whether the First Plaintiff was admitted at the CWM Hospital;

(b) Please state precisely when the First Plaintiff was discharged from the CWM Hospital; and

(c) Please state precisely the exact amount paid by the First Plaintiff for the medication provided to her on 10 October 2007 subsequent to her treatment.

Order; (a) to (c) is allowed and The above (a) to (c) is essential for the Defendants to ascertain the facts of the injury and its nature and treatments in this action and to eliminate generality as pleaded in the statement of claim without details as to the injury and its severity. This is to tie the hands of the party so that he cannot without leave go into any matters not included (per Brett J. J. in Philipps v Philipps [1878] UKLawRpKQB 96; (1878) 4 Q.B.D 127 at 133; woolley v Broad [1892] UKLawRpKQB 146; [1892] 2 QB 317) if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings (Dean of Chester Smlting Corp [1902] W.N. 5; Hewson v Cleeve [1904] 2 Ir. R 536 and it is essential to curtail the trial to real issues and time can be saved to all the parties.

(8) Of paragraph 7 headed Schedule of Special Damages of the First Named Plaintiff; Sovaia Bulileka Duruwaqa ..

Request

(a) Please state precisely the exact medication purchased by the First Plaintiff;

(b) Please state exactly the dates when the medication was purchased and from which pharmacy;

(c) Please state precisely on how many occasion the First Plaintiff attended to the CWM Hospital subsequent to the collision and the purpose of the attendance at the CWM Hospital;

(d) Please state precisely on which day and time the First Plaintiff travelled by taxi to the CWM Hospital;

(e) Please state precisely whether any other person accompanied the First Plaintiff on occasions when she visited the CWM Hospital;

(f) Please state precisely the exact date the First Plaintiff's knee was x-rayed;

(g) Please state precisely the exact nature and type of special damages that the First Plaintiff continues to accrue from the date of the collision; and

(h) Please state precisely when the First Plaintiff instructed a legal practitioner to attend to her claim for compensation.

Order; (a) to (g) is allowed except (h) which is not an issue relating to the statement of claim and damages. When the Plaintiff instructed a lawyer is not an issue in this statement of claim and not allowed but (a) to (g) is allowed but the requests for (b) may not be as precise as requested if that cannot be complied, but can be provided before PTC with some approximate dates.

(9) Of paragraph 7 headed Particulars of the Injuries of the Second Named Plaintiff; Salanieta Vono .. "was rushed to the Lami Health Centre ... CWM Hospital ..."

Request

(a) Please state precisely the time when the Second Plaintiff was attended to by the Lami Health Centre;

(b) Please state whether the Lami Health Centre made notes of the Second Plaintiff's injuries upon attending to the Second Plaintiff;

(c) If in the affirmative to (b) above, please provide copy of the medical report;

(d) Please state precisely when the Second Plaintiff was attended to by the CWM Hospital on 10 October 2010;

(e) Please state precisely the exact nature of injuries diagnosed by the CWM Hospital for the Second Plaintiff;

(f) Please state precisely whether the CWM Hospital made notes or prepared any medical report for the Second Plaintiff;

(g) If the affirmative to (f) above, please state the exact time of attendance to the Second Plaintiff and the date of the medical report; and

(h) If in the affirmative to (f) above, please provide a copy of the medical report.

Order; (a) to (h) is allowed as they are essential for the Defendants to ascertain the facts of the injury and its nature and treatments in this action and to eliminate generality as pleaded in the statement of claim without details as to the injury and its severity. This is to tie the hands of the party so that he cannot without leave go into any matters not included (per Brett J. J. in Philipps v Philipps [1878] UKLawRpKQB 96; (1878) 4 Q.B.D 127 at 133; woolley v Broad [1892] UKLawRpKQB 146; [1892] 2 QB 317) if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings (Dean of Chester Smlting Corp [1902] W.N. 5; Hewson v Cleeve [1904] 2 Ir. R 536 and it is essential to curtail the trial to real issues and time can be saved to all the parties.

(10) Of paragraph 7 headed Particulars of the Injuries of the Second Named Plaintiff; Salanieta Vono.. "was thrown out of the minivan ... and she had a deep cut on the right knee which needed 13 stitches"

Request

(a) Please state precisely whether the Second Plaintiff was wearing a seat belt while travelling in the motor vehicle registration number LM270; and

(b) Please state precisely whether the other passengers travelling in the motor vehicle LM270 were wearing a seat belt;

(c) Please state precisely on which side of the road the Second Plaintiff was thrown to at the time of the collision;

(d) Please state precisely whether the Second Plaintiff was admitted at the CWM Hospital on 10 October 2007;

(e) Please state precisely when the Second Plaintiff's was discharged from the CWM Hospital;

(f) Please state precisely whether the second Plaintiff has been incapacitated in any manner as a result of the injuries sustained on 10 October 2010;

(g) If in the affirmative to (g) above, please state precisely the nature of incapacity restricting the Second Plaintiff; and

(h) Please state precisely the exact nature of the CWM Hospital's medical diagnosis of the Second Plaintiff's injuries sustained on 10 October 2010.

Order; except the (b) all other requests are allowed and the reasons are as same as the above request (10). Whether the other passengers were wearing seats belts or not is not an issue in this case.

(11) Of paragraph 7 headed Particulars of the Injuries of the Second Named Plaintiff; Salanieta Vono ... "her right limb was caught between the door and she had surgery to remove blood clot"

Request

(a) Please state precisely whether the Second Plaintiff was hanging on to the door at the time of the collision;

(b) Please state precisely whether the door of the motor vehicle registration number LM270 was shut firmly and securely whilst it was travelling along Queens Road;

(c) Please state precisely as to how the door of the motor vehicle registration number LM270 opened at the time of the collision;

(d) Please state precisely exactly when the Second Plaintiff underwent surgery to remove the blood clot on her right thumb; and

(e) Please state precisely the exact nature of the surgery undertaken on the Second Plaintiff's right thumb since 10 October 2007.

Order; (c) cannot be answered by the Plaintiff as it has to be ascertained in the trial, if it was closed. So (c) need not be answered but all the other requests should be answered to the best of its knowledge.

(12) Of paragraph 7 headed Schedule of Special Damages of the Second Named Plaintiff; Salanieta Vono

Request

(a) Please state precisely the exact medication purchased by the Second Plaintiff;

(b) Please state precisely the exact amount paid by the Second Plaintiff for the medication provided to her on 10 October 2010 subsequent to her treatment;

(c) Please state exactly the dates when the medication was purchased and from which pharmacy;

(d) Please state precisely the exact medication the Second Plaintiff was prescribed and the duration which the Second Plaintiff was to take the medication;

(e) Please state precisely whether the Second Plaintiff paid for the medication she was prescribed to take;

(f) Please state precisely the exact dates when the Second Plaintiff attended to the CWM Hospital subsequent to the collision and the purpose of the attendance at the CWM Hospital;

(g) Please state precisely the exact dates when the Second Plaintiff attended to the Lautoka Hospital subsequent to the collision and the purpose of the attendance at the Lautoka Hospital;

(h) Please state precisely whether any other person accompanied the Second Plaintiff on occasion when she visited the CWM Hospital or the Lautoka Hospital;

(i) Please state precisely the exact date when the Second Plaintiff's knee was x-rayed;

(j) Please state precisely the exact nature and type of special damages that the Second Plaintiff continues to accrue from the date of accident; and

(k) Please state precisely when the Second Plaintiff instructed a legal practitioner to attend to her claim for compensation.

Order; The requests (a) to (k) is regarding the injury and to prevent generality the particulars are needed to limit an define the issues to be tired and as to which discovery is required as held in Yokshire Provident Life Assurance Co v Gilbert [1895] UKLawRpKQB 67; [1895] 2 QB 148 per Vaughan Williams J. H in Milbank v Milbank [1900] 1 Ch.385

6. The affidavit in opposition of the Plaintiff does not state grounds for objection and it deals with the issue of limitation and cannot be of any help to this application. But at the oral hearing the Plaintiff stated that above facts are not with their knowledge and all the facts that they are in possession is given to the other side. This cannot be accepted and cannot be considered as it is only a submission of the counsel and there is no affidavit in opposition stating so. Hence, the court is left with only an affidavit in support. The requests are dealt separately and for convenience the each category was dealt in the same way it was requested for convenience and to avoid repetition as much as possible. It is to be noted though Plaintiff produced a letter in reply to the letter dated 23.11.2010 since that was not produced through an affidavit I disregarded it for the purpose of this ruling.
   

100. CONCLUSION
     

7. The details that were requested by the Defendant by the letter 23.11.2010, except what was already disallowed, is relevant and needed in terms of the provision of the law. The summons for further and better particulars of statement of claim is granted subject to the reasoning given in this ruling. The only information relating to when the plaintiff instructed to the lawyer and whether other passengers were wearing seat belts and how the vehicle door got opened were disallowed for the reasons given above. The Plaintiff is directed to serve the Defendant the further and better particulars of claim as stated above in 21 days. Time for service of Defence is extended for 14 days from the service of particulars as the Plaintiff did not object to granting of extension of time to file the statement of defence.
   

4. FINAL ORDER
   

1. The requests of the letter dated 23rd November, 2010 written by the Defendant's lawyer are allowed except 6(b), 8(h), 10(b) and 11(c) and the Plaintiff should provide the said requests within 28 days.
   
2. The Defendant is granted 14 days from the above compliance to file and serve a statement of defence.
   

100. Cost of this application is cost in the cause.
     

Dated at Suva this 05th day of December, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva