IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 398 of 2009

BETWEEN:

DHARMENDRA PRASAD father's name Surendra Prasad of Vuci Road, Nausori in the Republic of the Fiji Islands, Unemployed.
PLAINTIFF

AND:

AMALGAMATED SALES COMPANY LIMITED a limited liability company having its registered office c/- Vishnu Prasad & Co., Chartered Accountants, 4th Floor Air Pacific House, Butt Street, Suva in the Republic of Fiji Islands.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Ms. R. Naidu of Sherani & Co. for the Plaintiff
Mr. R. Sharma of Patel Sharma Lawyers for the Defendant

Date of Hearing: 17th February, 2012
Date of Ruling: 22nd February, 2012 

RULING

A.	INTRODUCTION

1.	The Plaintiff has sustained injuries while in employment of the Defendant. The total disability due to injury is 75% and even after 2 years the medical opinion is that his status will not be further improved. It further opined that Plaintiff could not be employed gainfully in the future. The Defendant admits that the accident happened during the employment, but pleaded contributory negligence and did not file any affidavit in opposition to this summons seeking interim payment. The Defendant has particularized the alleged contributory negligence in the statement of defence.

B.	THE ANALYSIS

2.	The Plaintiff got injured while he was in employment of the Defendant due to a fall of a part of a machine namely 'machine roller' that he was dealing within the scope of his employment. The Defendant in its statement of defence alleges contributory negligence and the alleged contributory negligence acts are as follows

a.	 Undertaking the said task without seeking out the supervision of a competent work person to assess prior to removal and thereafter ensure removal with care of the machine rollers.

b.	 Removing the Machine rollers without ensuring it was severely supported and properly suspended.

c.	 Removing the Machine rollers without ensuring it was severely supported and properly suspended.

d.	 Carelessly and without due regard for his own safety and that of his co workers failing to ensure that the rollers were slung and hoisted to the ground.

e.	 Failing to keep a proper lockout.

f.	 Failing in the knowledge the rollers were heavy to wear a safety boot and to ensure he was out of the range of the roller components.

g.	 Failing in all the circumstance to realistically appreciate the risk to with he was exposed and take precautionary steps to keep out of the roller.'

3.	In the reply to the defence the Plaintiff has denied the above mentioned allegations of contributory negligence but did not explain the circumstance on which the alleged negligence was based, and stated that Defendant was in breach of the common law and statutory duty to provide safe system and safe place of work.

4.	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.

5.	In terms of Order 29 rule 10 an application for interim payment can be made anytime after the writ is served and the time limit for the acknowledgment of the writ has expired. The requirements for such application are laid down in the Order 29 rule 10(3) of the High Court Rules of 1988. In this application the Plaintiff has filed a comprehensive medical report and that clearly stated that total incapacity is 75%.

6.	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

7.	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.'

8.	The 10 day extended time period for the opposing party is granted with a purpose and that is clearly to facilitate the Defendant with sufficient time to encounter such an application for interim payment. In this case the Defendant would have obtained an alternate medical certificate during this time period if they so wish as the Plaintiff has appeared before the Doctor of Defendant's choice even before this application was made. This is clear from annexed marked 'G' to the affidavit in support. 

9.	After an opportunity is granted for the Defendants to oppose the application, through an affidavit and or with supporting document, the matter was heard and Order 29 rule 11 deals with the requirements that has to be considered 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.

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."

11.	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 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.

12.	'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 Order 29 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)

14.	The rationale in the interim payment is not anything special, but an already accepted an applied legal principle in civil litigation, where the court is satisfied that the Plaintiff would obtain a judgment in favour for a substantial amount, the delay in the said disbursement of damages is unavoidable in the exercise of the due process of law. This is more evident, when the unsuccessful party exercises its right of appeal, so the successful party is further denied of the enjoyment of fruits of his success. So, the law has tried to mitigate the hardship of the Plaintiff, by introducing provisions similar to interim payments. The court need not wait till full and proper adjudication of the matter, when it is evident that the Plaintiff would obtain the judgment for a substantial amount.

15.	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 including present and future economic loss as in this instance where the total disability percentage is as high as 75% with no improvement of the conditions which leaves a relatively young person a destitute, due to the injury suffered. 

16.	 In the circumstances, even if an award is made at the conclusion and a further award of interest for the damages, for the delay, would not sufficiently compensate the victim, due to the seriousness of the injury and what has resulted from that. The 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 elevated to a right of a Plaintiff recognized in law in terms of Order 29 rule 11 of the High Court Rules of 1988, to mitigate such instances. 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. 

18.	In Fiji Court of Appeal it case of AG v Ministry of Health Civil Appeal ABU 022 of 2009 (on a Ruling delivered on 8th June, 2010 upon a hearing on 16th February, 2010) Justice John E Byrne quoted Stingman (a minor) v McArdle (1994) 1 WLR 1653 and said 'the English Court of Appeal held, dealing with the requirement of order 29 of the High Court Rules of Fiji that a plaintiff was not required to demonstrate any particular need beyond the general need to be paid his damage as soon as reasonably possible and the Court should not, when considering to order such a payment investigate how the money was to be used.' Though this is not a requirement the total disability percentage of 75%, by itself would show the plight of the Plaintiff and would be sufficient to justify an interim payment without any further proof of need.

19.	The medical report that was obtained by the CWM Hospital dated 22nd March, 2011 stated that 

'It is most unlikely that his symptoms will get any better given the long cause of symptoms since the accidents two years ago, as well as its resistance to improve.

Due to severe pain in working and also at rest, Mr. Dharmendra will in future find it difficult maintaining a stable employment of any sort, let alone freely mobilise.

At this point we find Dharmendra a classification of 75% permanent disability status.'

20.	These medical certificates and facts has not been refuted by filing an affidavit in opposition there is evidence to show that the Defendant has also requested the Plaintiff to attend to a medical examination to a doctor of their choice and he has done so without any hesitation. This medical certificate was not made available to the court and when inquired by the court the counsel for the Defendant stated that they are yet to receive it from the authorities. The counsel also indicated that had they received that medical certificate, they would have settled the matter of interim payment without proceeding to hearing and stated that they still awaits the said report.

21.	The only point raised by the Defendant is the allegation of contributory negligence for the injury suffered. The parties admitted that the injury happended during employment with the Defendant. The allegation of contributory negligence cannot be decided on affidavit evidence. The contributory negligence, the particulars have been stated in the statement of the defence as I have quoted in this ruling, but the Plaintiff has not addressed to that issue either in the affidavit in support or in the reply to the defence. So, at this moment what I have before me is only an allegation of contibutory negligence in the statement of defence the alleged contributory negligence is not even averred in an affidavit for me to consider and properly evaluate it. So, the contributory negligence is only an allegation contained in the statement of defence unsubstantiated by acceptable form of evidence through an affidavit.

22.	The contributory negligence, if proved will only reduce the award of compensation by the percentage of the contributory negligence. So, only on an allegation of contributory negligence court should not refuse interim payment if the circumstances show that there will be a substantial award.

23.	On the facts before me in the exercise of the discretion, it is evident that the Plaintiff would receive substaintial award for compensation considering the age of the Plaintiff and his total permanent incapacity which is assessed at a very high percentage of 75%. The parties agree that this injury happened during the course of his employment while performing his normal duties.

24.	In considering the amount I considered the allegation of the contributory negligence though it has not been presented to the court in an affidavit. The determination of contributory negligence cannot be decided in this application. This can only be done in the trial when the evidence is adduced, by the Defendant. I can only consider the allegation of contributory negligence in the determination of the quantum of the interim payment.

25.	So, considering the circumstances of this case I award an interim payment of $15,000 as just considering the age, the total percentage disability of 75% and other circumstances of this case.

26.	The counsel for the Defendant stated that they await the medical report from the doctor of their choice and the objection to this application is because of the delay. This is a matter for the Defendant, since the Plaintiff has promptly attended before the Doctor of their choice even before this application is made. There is already a medical report obtained from the state owned CWM hospital which has assessed the total disability at 75%. In the absence of any alternate medical certificate at the time of this application this has to be believed and relied upon by all parties. So, I do not consider the reason given for the objection to this application as a ground for not awarding a cost.

C.	CONCLUSION

The Plaintiff has suffered severe injury that has resulted 75% total disability. The Plaintiff was at his prime age when this accident happened inside the factory where he was employed while performing his normal duties. Whether he has taken sufficient precautions in attending to such work needs to be ascertained at the trial, but considering the evidence before me there is likelihood of plaintiff obtaining substantial damages. His past as well as future earning capacity is ruined due to a very high 75% total disability and the medical report also stated that this condition will not improve in the future. I order an interim payment of $15,000 to the Plaintiff to be paid by the Defendant within 21 days.

D.	FINAL ORDERS

a.	The Plaintiff is granted an interim payment of $15,000.

b.	The interim payment should be paid to the Plaintiff within 21 days from today.

c.	The cost of this application is assessed summarily at $1,000 and that should be paid by the Defendant within 21 days.

d.	The Registry is further directed to remove all the proceedings relating to the interim payment starting from the summons and to keep them separately at the trial of this case and should not be made available to the judge till the determination of the liability.

Dated at Suva this 22nd day of February, 2012. 

Mr. Deepthi Amaratunga
Master of the High Court
Suva