IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 171 of 2009

BETWEEN:

SANJEEV KAPOOR of Nanuku Settlement,
Vatuwaqa, Suva in Fiji, Carpenter.
PLAINTIFF

AND:

RAJEN BUILDERS LIMITED a limited liability company
 having its registered office at 470 Ratu Mara Road, Samabula, Suva in Fiji.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr.W. Sivanesh Pillay of Neel Shivam Lawyers for the Plaintiff
Ms. Radhika S. Naidu of Sherani & Co. for the Defendant

Date of Hearing : 18TH June, 2012
Date of Ruling : 26TH June, 2012

Decision

A.	INTRODUCTION

1.	The Plaintiff's claim against the Defendant is based on damages for serious injury that made him 97% disable as the whole person, due to a fall from a roof, while being employed by the Defendant removing sheets of a roof. The Plaintiff filed the summons dated 27th February, 2012 seeking interlocutory judgment and interim payment. The summons indicates only the Order 29 rule 10 (1) and (2), but this is an omission as the summons failed to mention the Order 14 upon which the summary judgment is sought. The Defendant state that the procedure is irregular, but has not complies with Order 2 rule 2 in order to set aside the application for irregularity. Though I have refused the summary judgment, an interim payment as prayed in the application is granted and considering the delay of this action I ordered the parties to comply with the automatic direction provision contained in Order 25 rule 8 forthwith.

B.	FACTS AND ANALYSIS 

2.	The Plaintiff was employed by the Defendant and while he was engaged in the work of replacing of corrugated sheets on a roof, he stepped to a sheet which got broke and he fell to the concrete floor beneath the roof resulting serious injuries.

3.	Admittedly, the Plaintiff was employed by the defendant and he was entrusted to perform the duty of replacing of corrugated galvanized and plastic sheets. At paragraph 4 of the affidavit in reply stated inter alia 

a.	That the Plaintiff and Ritesh Kumar was taken to the site and were properly instructed to execute the duty of replacing the corrugated sheets and to wear safety helmets and boots.

b.	While performing the said duties that was assigned, the Plaintiff stepped back and his leg went through the plastic sheet and he fell on his back onto the concrete floor, injuring him.

4.	The Plaintiff is alleging that there was no proper supervision of his work at the job site on particular day. This fact is not refuted in the affidavit in opposition filed by the defendant's managing director who requested the Plaintiff and another to the said site to engage in the removal of roof sheets on 5th February, 2009.

C.	INTERIM PAYMENT

5.	The Medial Report marked SK-2, annexed to the affidavit in support issued by the CWM Hospital dated 17th February, 2009 indicate that the Plaintiff was 20 years old at the time of the accident and the injuries were stated as

a.	Unstable fracture of L1 vertebras with anterior translation.
b.	Complete Paralysis.

6.	The said Medical Report stated

'On repetitive history and physical examination Mr. Sanjeev sustained a complete spinal cord lesion. He have a poor prognosis and very unlikely to walk again. He will not be able to get to his normal activities pre-injury.
Therefore he needs supportive care to prevent all the complications arising from a complete paraplegic patient.'

7.	The said medical report issued 12 days after the incident was certain as to the condition of the Plaintiff, giving an indication as to the seriousness of the injuries to the Plaintiff. This can be understood as the injuries were to the spinal cord.

8.	A comprehensive medical report was obtained on 4th January, 2011 and this was nearly 2 years after the incident. The said medical inter alia stated as follows

'Mr. Kapoor is confined to a wheel chair. He requires indwelling catheter for his urine, raining and care for his bowel.

In the said Medical Report the impairment was assessed at an extremely high 97% and stated as follows

'The injury sustained by Mr. Kapoor has resulted in paraplegia with neurological level at the umblians impairment assessment at rate at 97% of the whole person.'

There is no alternative medical report submitted for me, and a very high impairment assessment of 97% has to be admitted as his correct present condition and there is no likelihood of any improvement, of that.

9.	In YeugSek-sung v Cheung For –ming and Another [1991] 1 HKLR 1 at 5 it was stated
'The object of an application for an interim payment is to alleviate hardship or prejudice to the plaintiff during the period from the institution of proceedings up to the dater of trial, see Ricci Burns Ltd v Toole and Another [1989]3 All ER 478 at 485F. However in my judgment, an interim award should normally be considered when the trial is unlikely to take place for a long period of time.' (emphasis is added)

10.	The principles laid down in the determination of the interim payment can be summarized below:( as done in Schott Kem Ltd v Bentley and others (1991) 1QB by Neil L.J):

(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;

(2)	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;

(3)	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.

(4)	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."

(5)	That in an action for personal injuries rule 11(2) makes express provision concerning the means and resources of he 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.

(6)	'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

13.	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 of 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."(Emphasis is mine)

11.	The Plaintiff was 20 years old when the accident happened, considering the serious disability with no real prospects of considerable improvement, the injuryhas ruined the life of the young person of 20 years of age and considering the medical reports before me it is unlikely that he will be able to enjoy the life of a person of similar age, with serious consequences to his personal life. He was not suffering from any disability, before the incident and according to the Plaintiff he has exercised all the safety procedures as well as has worn the protective helmet and boots, that were provided to him by his employer.

12.	The Defendant claims contributory negligence and claims that the Plaintiff did not wear protective gear that was given to him. This is factual issue that can only be determined in trial and the issue of contributory negligence cannot be dealt with certainty as the facts are disputed. The manner in which the Plaintiff fell from the roof and the circumstances are not fully elicited in the affidavit evidence before me and only be possible in oral testimony, which will be subject to cross-examination.

13.	High Court Rules Order 29 rule 11 (2) states as follows

"(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."

I have not been informed of any fact that can be included in Order 29 rule 11 (2) that would prevent me from granting an interim payment. 

14.	On the evidence before me it is inevitable, that the Plaintiff will receive substantial damage even considering the provision for any contributory negligence. Considering the age of the plaintiff and the injury and the very high percentage of disability which stands at 97%, the interim payment of $20,000 which was sought by the Plaintiff is amply justified and I grant an interim payment of $20,000 for the Plaintiff to be paid by the Defendant within 21 days. The Plaintiff is also granted a cost of this application assessed summarily at $1,500.

Summary Judgment

15.	The summons of the Plaintiff in its heading indicate 'for interlocutory judgment and for the order for interim payment' and the Defendant was adequately noticed of the intending summons when it was served on them and no prejudice was caused to the Defendant by the failure of the Plaintiff to mention the provision relating to the summary judgment in the summons.

16.	The said summons was dated 27th February, 2012 and when this summons was called on the 15th March, 2012, Mr. V. Kapadia who appeared on behalf of the Defendant sought further 21 days to file an affidavit in opposition and this affidavit in opposition was filed on 26th April, 2012. Neither Mr. Kapadia nor the affidavit in opposition indicate any irregularity of the Plaintiff's summons and the issue of irregularity of not mentioning the Order 14 in the summons was raised at the hearing of this application.

Order 2 rule 2 of the High Court Rules deals with the applications to set aside on irregularity and stated as follows:

2(1)	An application to set aside for irregularity any proceedings, any step taken in any proceedings or any documents, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the a party applying has taken any fresh step after becoming aware of the irregularity.

(2) 	An application under this rule may be made by summons or mouthing and he grounds of objection must be stated in the summons or notice of motion.

17.	The Defendant has not only waited till the hearing of this summons to object to the irregularity of the Plaintiff's summons, but also the Defendant's oral application on the date of the hearing of Plaintiff's summons is irregular in terms of the Order 2 rule 2 (2). 

18.	The Plaintiff's summons in its heading indicate that it is a summons for summary judgment and interim payment. There is no prejudice to the Defendant by failure to mention the Order 14 in the said summons. The Defendant has not raised the issue on the earliest opportunity on 15th March, 2012 and has also filed an affidavit in opposition and this contravenes the Order 2 rule 2(1), if the Defendant intended to object to the irregularity of the Plaintiff's summons as a step has been taken by the Defendant. Such objection has to be raised by summons as required in Order 2 rule 2(2) and the Defendant has failed to do so and the objection of the Defendant should be dismissed in limine for the above reasons.

19.	In Shanning Ltd V George Wimpey Ltd [1988] 3 All ER 475 at 482 per Glidewell Lj considered the application of summary judgment and the interim payment simultaneously and held that where the claim and counterclaim are liquidated such joint application for summary judgment and interim payment is superfluous, but if the claim is liquidated and counterclaim is unliquidated there can be a logical reason and purpose for making an application for summary judgment and also for interim payment jointly.

20.	The law relating to summary judgment is contained in Order 14 of the High Court Rules of 1988 and it states as follows

'1(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no deface to a claim included in the writ, or to a particular part of such a claim, or has no deface to such a acclaim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

(2)…..
(3)…..

2(1) An application under rule 1 must be made by summons supported by an affidavit verifying the facts on which the claim or the part of a claim to which the application relates is based and stating that in the deponent's belief there is not defence to that claim or part, as the case may be or no defence except as to the amount of any damages claimed.

(2) Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.

(3) The summons, a copy of the affidavit in support and of any exhibits referred to therein must be served on the defendant not less than 10 clear days before the return day.

3(1) 	Unless on the hearing of an application under rule 1, either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which out to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.' (emphasis is added)

21.	Carpenters Fiji Ltd v Joes Farm Produce Ltd [2006] FJCA 60; ABU0019U.2006S (10 November 2006) the Court of Appeal of Fiji quoted the White Book of 1999 and stated in the paragraph [22] as follows

"Summary Judgment Principles

[21] Here it is timely to state some of the well established principles relating to the entry of summary judgment:

(a) The purpose of 0.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, a bona fide defence or raise an issue against the claim which ought to be tried.

(b) 	The defendant may show cause against a plaintiff's claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved. 

(c)	It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiff's claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it. 

(d) 	Set off, which is a monetary cross claim for a debt due from the plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set off claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak v. Green (1958) 2 QB 9 at page 29 per Sellers LJ. 

(e)	Likewise where a defendant sets up a bona fide counter claim arising out of the same subject matter of the action, and connected with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should be for unconditional leave to defend, even if the defendant admits whole or part of the claim. Morgan and Son Ltd v. S. Martin Johnson Co (1949) 1 KB 107(CA).

See 1991 The Supreme Practice Vol 1 especially at pages 146,147,152 and 322." (emphasis is mine)

22.	In Civil Procedure (White Book) 2010 Vol 2 at p 2862 on 'Interim Payment and Summary Judgment' stated 15-112

'Depending on the circumstances, an application for summary judgment and for an interim payment order may conveniently be made and dealt with together. (Associated Bulk Carriers Ltd v Koch Shipping Inc [1978] 2 All ER 254 CA. where, in a claim for unliquidated damages, no application is made for an interim payment but summary judgment is given on liability and there is triable issues as to quantum, the court has no power to give judgment for part of the damages unless the court is satisfied that such part of the damages can be clearly identified and quantified and that such ascertained part of the damages is undisputed( ibid., and Sinclair Investment Holding SA v Cushine [2006] EWHC 219(Ch). January, 2006, unrep (Mr. Thomas Ivory Q.C)' (emphasis is added)

23.	The Plaintiff was employed by the Defendant and on the date of the incident was entrusted with the removal of some galvanized and plastic sheets on a roof. The Defendant admits that the incident happened within the scope of the employment, but alleges contributory negligence. The Defendant alleges that some protective gear that was supplied by them, and it was not worn by the Plaintiff, but he denies that. This is a factor that needs oral evidence. The Plaintiff has to prove the negligence of the Defendant and if the Defendant is relying on contributory negligence the Defendant has to prove it. This is an action that needs oral testimony of the Plaintiff in order to ascertain the liability of the Defendant. The application for summary judgment is dismissed.

24.	The parties are directed to follow the 'automatic directions in personal injury actions' contained in Order 25 rule 8 forthwith considering the 97% disability of the Plaintiff since the action was filed in 2009 and the amended statement of defence was filed only in 2012. The extremely high 97% disability of the Plaintiff should be born in mind and automatic directions needs to be complied by the parties without delay.

D.	FINAL ORDERS

a.	The application for summary judgment is struck off.
b.	The Plaintiff is granted an interim payment of $20,000 to be paid by the Defendant within 21 days from today.
c.	The cost of this application is assessed summarily at $1,500, to be paid by the Defendant within 21 days.
d.	The parties are directed to follow the 'automatic directions in personal injury actions' contained in Order 25 rule 8 forthwith considering the 97% disability of the Plaintiff and inordinate delay in this action.
e.	The Registry is directed to remove all the communication regarding this interim payment application (invariably that would remove all the documents relating to summary judgment as it was done jointly) and should not be communicated to a judge before the assessment of damages.

Dated at Suva this 26th day of June, 2012.

Master Deepthi Amaratunga
High Court, Suva