IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 83 of 2010

BETWEEN:

RATU LUKE MATANABABA 
of Daku, Buretu, Tailevu, Unemployed.
PLAINTIFF

AND:

NARSEYS PLASTIC INDUSTRIES LIMITED, 
a limited liability Company having its registered office at Lot 2 Kaua Road, Laucala Beach Estate, Suva.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. D. Singh for the Plaintiff
Ms. Rakai M.L. for the Defendant

Date of Hearing	: 10th February, 2012
Date of Ruling : 12th March, 2012

RULING

A.	INTRODUCTION

1.	The Plaintiff has filed this action for damages due to an injury caused by a machine in the work place. The injury occurred when the Plaintiff tried to repair it. He was an "Industrial Attachment Trainee" and his duties included repairing of the machinery at the work place. The facts relating to the incident are disputed and the Defendant is alleging that Plaintiff did not adheared to safety instructions given by the supervisor and carried out the repair and caused this injury due to his own negligence. The facts are complicated and disputed including one of the technician who alleged that he only requested the Plaintiff to find out a defect from the operator and to report that to him and the incident occurred when the Plaintiff tried to fix it on his own instead of reporting the fault. The said affidavit also alleges that there was no fault in the machine that was mentioned in the affidavit in support. Though the Plaintiff has particularized the ways and means of the alleged negligence, in the statement of defence, these have not been presented as evidence in the affidavit in support. The burden of proof lies with the Plaintiff to show negligence of the Defendant on the balance of probability and the burden is high though not criminal burden. The Plaintiff has failed to fulfill the said burden.

B.	FACTS

2.	The Plaintiff has instituted action against the Defendant for damages incurred while working as temporary training attachment with the Defendant when he tried to repair a machine.

3.	The Plaintiff was 'employed' by the Defendant as an 'Industrial Attachment' in pursuant to a 'letter of appointment' dated 11th December, 2007.

4.	The said letter inter alia stated as follows

a.	The Employment Act Cap 92 shall not govern the terms and conditions in the said letter.
b.	The engagement of the Plaintiff with Defendant was one of training attachment of temporary nature and was not regarded as an employee.
c.	The Plaintiff is not entitled to claim regular wages.
d.	A weekly allowance of $80 is paid.
e.	Must comply with all the instructions issued by the supervising officer or any other authoritative person.
f.	Instruction would be given for personal safety and optimization of the attachment.
g.	Contractual attachment term is effective from 3rd January, 2008 to 3rd January, 2009. (emphasis is added)

5.	The Plaintiff is alleging negligence of the Defendant in the statement of claim in paragraph 5 and it elaborates, the ways and means of the said negligence, but has not included the said allegations as evidence in the affidavit in support. (which I would discuss in my analysis part of this ruling)

C.	LAW

6.	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.

7.	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. 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. (emphasis is added)

8.	The Plaintiff's affidavit in support has not included the relevant evidence of the alleged negligence of the Defendant, though it contained evidence of the injury suffered and need for an interim payment, but what has to be established first is that there was negligence on the part of the Defendant.

9.	Order 29 rule 11 deals with the requirements to consider before an interim application is made. It states as follows:
'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'. (emphasis is added)

10.	In (1991) 1QB 61 Schott Kem Ltd v Bentley and others the issue of interim payment was dealt comprehensively from page 69 to 75 though none of the parties to this action, relied on that judgment.

11.	The principles laid down in the determination of the interim payment can be summarized below: (as per decision of Schott Kem Ltd v Bentley and others supra)

(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

D.	ANALYSIS

12.	The written submission filed by the Defendant does not address the salient points in this case and the main issues for the determination of the interim payment.

13.	The Plaintiff in the statement of claim alleges negligence of the Defendant and has particularized the negligence as follows

'1. 	Failing to take any or any adequate precaution for the safely of the plaintiff while he was engaged upon the said work.

2.	Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known.

3. 	Failing to provide proper gloves to protect the plaintiff's hand from injuries.

4.	Failing to institute or enforce any or any adequate system of inspection or maintenance whereby the defective work practice might have been detected and the same remedied before the plaintiff's injury.

5.	Failing to ensure by means of a control or regulated electrical switch or other sensor or cut out means the compressor machine driven blades did not lower itself suddenly when being repaired or attended to by the plaintiff.

6. 	Failing to provide a competent person in breach of section 9(1) (c) of the Health and Safely at work Act 1996 to train and supervise the plaintiff's work.
7. 	Failing to warn the plaintiff of the dangers presented by working around a dangerous and unguarded blade.

8. 	Instructing, causing or permitting the plaintiff to work around a dangerous and exposes blade which was unguarded.

9. 	Failing to provide proper and adequate measure to preserve the severed finders in ice an to forthwith dispatch them with the plaintiff to the nearest surgeon for surgical attachment.

10. 	In the premises, the defendant failed to provide the plaintiff with a safe place or system of work, safe plant or equipment, failed to discharge their common law duty of care towards him under the Occupier's Liability Act and exposed him to unnecessary risks of injury.' (emphasis is added)

14.	The issues before the court according to the said particulars of the negligence are not simple and needs serious consideration of the facts as well as law. The 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.	The issues before the court are numerous and this is not easily ascertainable from the affidavits submitted to the court. In Shanning International Ltd v George Wimpey International Ltd [1988] 3 All E R 475 at p 480 referred to the judgment of Breeze v R McKennon & Son Ltd (1985) 32 Build L R 41 at 49, a judgment with which Parker LJ agreed in which Croom – Johnson LJ said:

'What the court must be satisfied of under rule 11(1)(c) is that the plaintiff will recover substantial damages from the respondent against whom the order is made, and the damages "likely to be recovered" means recovered from that respondent and not from somebody else. The onus of proof to "satisfy" the court on liability under11 (1) (c) is high. It is equivalent to being sure that the plaintiff will recover. A mere prima facie case is not enough…'

16.	So, the burden of the proof is high, though it is still within the civil burden of proof which is the balance of probability. It is clear from the particulars of the alleged negligence contained in the paragraph 5 of the statement of claim, which I have verbatim reproduced above, that the said particulars of negligence describe ten different modes / methods or ways and means that are complex and involve both facts and law that neither party has addressed either in their respective affidavits nor in their oral/written submissions. A careful examination of the said alleged methods of negligence would need addressing some complex legal and factual issues which I cannot decide at this juncture due the lack of evidence and not addressing to them adequately at the hearing of this summons.

17.	In Ricci Burns Ltd v Tools and another [1989] 3 All ER478 at p 485- 486 in the judgment of Ralph Gibson L.J held as follows

'The required standard of proof' is high. But it is civil burden on the balance of probabilities, not a criminal burden': see per Lloyd JJ in Serson Lehman Inc v Macalaine Watson Ltd [1987] 2 All ER 181, [1987] 1 WLR 480 at 488, cited by May LJ in Gibbons v Wall [1988] CA Transcript 111. May LJ continued:

'…the civil burden of proof…is a flexible test …. And it depends on the nature of that which has to be proved where on the flexible scale of the balance of probabilities one has to pitch the burden…[In] the context of an application for an interim payment… the burden is a high one within the standard if only because litigation of its nature involves no certainties. A plaintiff with what may appear on paper to be a strong case may find it fails at trial. If he does then he will have to repay the whole or, to the extent that he fails part of the interim payment. But… the plaintiff may spend it… If he does it may be difficult… to recover…clearly the burden resting on an applicant in those circumstances is towards the top of the flexible scale.' (emphasis is added)

18.	In Andrews v Schooling [1991] 3 All ER 723 at p 726 at paragraph g of the judgment of Balcombe LJ stated as follows

'Likely to succeed' is not enough, and again I refer back to the Quadrex case [1989] 3 All ER 492 at 511, [1989] QB 842 at 865-866 and the judgment of Sir Nicolas Browne- Wiliinson V-C, where he said:

'But Ord 29 (as construed by this court in the Shearson Lehman Case [1987] 2 All ER 181,[1989] 1 WLR 480) requires the court, at the fist stage, to be satisfied that the plaintiff will succeed and the burden is a high one; it is not enough that the court thinks it likely that the plaintiff will succeed at trial.'

19.	From the above mentioned findings the cases of Ricci Burns Ltd v Tools [1989] 3 All ER478 and Andrews v Schooling [1991] 3 All ER 723 the burden of proof lies with the Plaintiff and it is a high burden of proof though it is not criminal burden of proof. The proof of that Plaintiff is likely to succeed is not sufficient to order an interim payment. The only evidence available at the interim payment stage is through affidavits. The Plaintiff's affidavit in support dated 31st August, 2011 in the paragraph 2 stated that on 13th August, 2008 that while he was checking a plastic cutting machine blade, suddenly the blade lowered thus amputating two fingers of the right hand. This is the only paragraph that deals with the description of how the injury occurred and this clearly does not satisfy the high burden of proof of negligence on the part of the Defendant. All the rest of the paragraphs in the affidavit in support deal with the nature of the injury and the need of interim payment and on this evidence the balance of probability does not shift to the Defendant as no negligence of the Defendant is proved. In any event, without understanding this deficiency, the Defendant has filed an affidavit in opposition and the Plaintiff by the said action of the Defendant obtained an opportunity to submit an affidavit in reply, where he stated in the said affidavit in reply in paragraphs 2 and 3, that he was ordered to attend to the machine which cause injury by his supervisor and further stated that he was specifically ordered not to switch off the machine ever because that would reduce the production thus blame could attributed to the supervisor and could even lose even employment of the supervisor. In the analysis, it should be noted that the said allegations are all new contentions, which the Defendant has alleged for the first time. Why such important allegations were not included in the detailed particulars of negligence contained in the paragraph 5 of statement of claim (which I have quoted in full earlier in this ruling) needs explanation and cannot be fully dealt at this moment.

20.	The Defendant has filed an affidavit sworn by a technician who worked with the Defendant at the time of the tragic accident occurred and in paragraph 5 where he inter alia stated as follows

a.	'I was working in 6 colour machine with the Plaintiff when I was paged through the PA system from the cutting area.

b.	I told the Plaintiff to go and ask the Operator what the problem is and come back with what the operator has to say.

c.	The Plaintiff did not come back and started attending the problem with the V-cut 15 machine by himself which he was not supposed to do. The said machine was operate by Letila. I deny there was any problem in V-cut 16 machine as stated …' [emphasis added]

21.	In the analysis of the affidavit evidence I cannot come to conclusion that the injury to the Plaintiff occurred due to the negligence of the Defendant at this stage. Even the facts are disputed as to who instructed the Plaintiff and who was the supervisor of the Plaintiff as he was required to obey the instructions as per terms contained in the letter of 11th December, 2007 where it stated that he must comply with all the instructions issued to him by his supervising officer or any other authoritative person. Further, instructions and advice was required to be given for his personal safety and optimization of his attachment.' 

22.	If the allegation that the Plaintiff was specifically ordered not to switch off the machine which was faulty, by his supervisor, that should have been alleged in the statement of claim which elaborated on the particulars of the negligence and the said supervisor who instructed not to switch off the machine should have been named and added as a Defendant since such an instruction is clearly detrimental to safety of any person who attends a faulty machine. It is common knowledge that any electrically operated faulty machine has to be switched off before attending to repair it and if any person gives instructions contrary to it because of the reasons stated in the Plaintiff's affidavit in reply the person who gave such instructions should be named as a Defendant. The Plaintiff has even failed to name the said person, who asked him not to switch off the faulty machine while attending to its faults. It is also noted that according to the Plaintiff's affidavit in support, the said faulty machine 'blade which had gone blunt' could not have made any production and switching off would not have made a difference to production from that machine. If such instructions were in fact given by the supervisor, as alleged in the affidavit in reply of the Plaintiff, why he did not allege such an important aspect of negligence, in the statement of claim in the elaborated particulars of the Defendant's alleged negligence needs an explanation in the analysis on the spontaneity of the said evidence. Whether the Plaintiff, who was a trainee at that time was obliged to follow such an instruction which was clearly detriment to his safety needs determination by the court and since no party addressed that in this hearing that has to be dealt at the trial.

E.	CONCLUSION

23.	The Plaintiff has not satisfied the high burden of proof of the negligence of the Defendant on the affidavit evidence before me. The affidavit is support does not address the issue of negligence sufficiently for me to come to a finding that there will be substantial damages awarded to the Plaintiff. The issues contained in the statement of claim as regards to the negligence are complex and the interim payment is not suitable in such an instance. The summons for interim payment is struck off. Considering the facts of the case and the circumstances I will not order cost for this application.

F.	FINAL ORDER

a.	The summons dated 2nd September, 2011 for interim application is struck off.
b.	No cost is awarded for this application.

Dated at Suva this 12th day of March, 2012.

………………………………………….
Mr. Deepthi Amaratunga
Master of the High Court
Suva