THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 433 of 2002

BETWEEN:

FAZHUL RAHIMAN
[Plaintiff]

AND:

MINISTRY OF AGRICULTURE, FISHERIES AND FOREST
[1st Defendant]

AND:

MINISTRY OF HEALTH
[2nd Defendant]

AND:

THE ATTORNEY GENERAL OF FIJI
[3rd Defendant]

Counsel: Mr. R. Chand for the Plaintiff.
Ms. Karan for the 1st, 2nd & 3th Defendants.

Date of Judgment: 21st March, 2012

DECISION

1.	This is the plaintiff's ex-parte motion seeking leave to proceed with the action for claim for damages against the 1st, 2nd and 3rd defendants after the expiration of the 3 years limitation period. In support of the motion an affidavit was filed by the plaintiff.

The facts, as deposed to by his affidavit, can be summarized as follows:

2.	The plaintiff was employed as a security officer attached to the Ministry of Agriculture, Forest and Fisheries (hereinafter referred to as the 1st defendant). On or about 21.10.96, whilst the plaintiff was engaged in his duty with the 1st defendant, the plaintiff developed hernia. Subsequently, the plaintiff was admitted to the CWM Hospital on 28.4.97, and had undergone a surgery on the same day. He was discharged from the hospital on 2.5.97, but later developed some complication consequent to the surgery. 

3.	Thereafter, he was admitted again to the CWM on 16.05.1997, and his injuries were treated, but has not recovered fully, and had recurrence of pain in the groin region and also, he became sexually impotent. 

4.	When the plaintiff met his Solicitor in August 2000, he was advised to have a medical report for the confirmation of his sickness. 

5.	The plaintiff's solicitors obtained a medical report from the CWM and then followed up with the Ministry of Labour for Workmen's Compensation. At a meeting held with the officials of Ministry of Labour, the plaintiff was verbally advised that the amount payable was $ 1,700.00.

6.	Thereafter the plaintiff instructed his solicitors to pursue the claim for damages under common law and Workmen's Compensation as well. The plaintiff alleges that the injuries he suffered were caused due to the carelessness or negligence on the part of the 1st and 2nd defendants. It is further stated that the plaintiff has a meritorious claim. 

7.	Opposing the plaintiff's application, an affidavit was filed by the Assistant Secretary [Litigation] in the office of the Solicitor General. In that affidavit, it is stated that the plaintiff's action is statute barred under the Limitation Act Chapter 35 of Laws of Fiji. 

8.	The defendants' primary objection to the granting of leave is that it would be disadvantages as a fair trial would not be possible due to the long delay in instituting the plaintiff's action. 

9.	It is further stated that if the plaintiff is allowed to file its statement of claim, then it will be prejudicial to the defendants, because, due to the lapse of time between the alleged incident and plaintiff's application, the defendants will be disadvantaged as it would be difficult to present evidence from them. Therefore, the defendants move to dismiss the plaintiff's application. 

10.	When the case was called on 16.11.2011, both counsel informed that they would rely on the submissions filed. Both parties have filed their respective legal submissions, and I carefully considered those submissions.

11.	The plaintiff submits that his legal pursuit for claim for damages was a continuous and subsisting one ever since the Workmen's Compensation claim was lodged on his behalf in January 1998.

12.	The plaintiff relies on William Dunn –v- AG, HBC 331 of 1996. In addition to that, he also cited a number of English authorities including Central Asbestos Co. v. Dodd [1972] 2 Lloyd's Report 413.

Relevant Legal Principles

13.	According to section 4 (1) of the Act, an action for damages for personal injury shall not be brought after the expiration of three years from the date on which the cause of action accrued.

14.	Section 4(1)reads:

(1)	The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

a.	Actions founded on simple contract or on tort;
b.	Actions to enforce a recognizance;
c.	Actions to enforce an award, where the submission is not by an instrument under seal;
d.	Action to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture; 

Provided that—

(i)	In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or provision made by under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years; 

15.	Extension of time limit for actions in respect of personal injuries can be granted under Section 16 of the Act. It operates as an exception to Section 4(1)(i) provision of the Act. 

16.	As can be seen from the plaintiff's motion, the plaintiff made this application pursuant to Sec 16 and 17 of the Limitation Act. Section 17 relates to the application for leave. Therefore, the plaintiff's application has to be considered within the purview of Section 16 and 17 of the Limitation Act. 

17.	Section 16(1) reads:

The provisions of sub section (1) of section 4 shall not afford defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which-

a.	The court has, whether before or after the commencement of the action, granted leave for the purpose of this section; and

b.	The requirements of subsection (3) are fulfilled.

Section 16(3) reads;

The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which-

a.	either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period; and 

b.	In either case, was a date not earlier than twelve months before date on which the action was brought. 

18.	It is apparent from these provisions that the central issue is the actual or constructive knowledge of the plaintiff under 16(3). Therefore, it is incumbent on the plaintiff to show that the material facts relating to cause of action including those of a decisive character were outside his actual or constructive knowledge until either after the 3 years period or not earlier than 12 months before the end of that period, that is not earlier than 2 years after the cause of action accrued.

19.	Pursuant to section 17 (3) court can grant leave only if the uncontradicted evidence established the cause of action and the requirements of section 16(3) are satisfied.

Section 17(3) reads:

Where such an application is made after the commencement of a relevant action, the court may grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient:-

a.	to establish that cause of action, apart from any defence under subsection (1) of section 4; and

b.	to fulfil the requirements of subsection (3) of section 16 in relation to that cause of action, and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as, apart from the last preceding section, to afford a defence under subsection (1) of section 4.

20.	In considering this application one cannot ignore the definition of 'facts of a decisive character' referred to in section 20. It reads:

For the purpose of sections 16 and 18, any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice within the meaning of section 22 with respect to them, would have regarded at that time as determining, in relation to that cause of action, that, apart from any defence under subsection (1) of section 4, an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of action.

21.	As I stated earlier, to succeed under sec 16 (3) the plaintiff has to establish that the material facts relating to the cause of action were at all times outside his knowledge, until the expiration of statutory time limit to institute the action.

22.	The plaintiff submitted that he only had knowledge of the material facts relating to the cause of action when he received the medical report dated 14.03.2001. According to the plaintiff's affidavit, the plaintiff first experienced the pain at the lower part of the abdomen in Oct 1996, and was admitted to the CWM hospital on 28.04.97, and he was asked by his employer to sign a form and to have a medical report for the purpose of claiming some workman's compensation, but nothing was paid to him. In 2000 August, the plaintiff instructed his solicitor to take necessary steps to file an action.

23.	At that time the plaintiff realized that he had a serious medical complication, and his solicitors obtained a Medical Report from the CWM in March 2001. In July 2001, the plaintiff's solicitors wrote to the secretary Ministry of Labour with regard to the plaintiff's compensation claim, but the plaintiff was verbally informed that the amount payable was $ 1700.00. Thereafter, the plaintiff instructed his solicitors to pursue the claim for damages under common law and Workmen's compensation Act. The plaintiff's main contention, as can be seen from his affidavit, is that he had not discovered or apprehended the nature and the cause of his sickness until he discussed it with his solicitors in August 2000.

24.	Section 16(3) requires the plaintiff to prove that the material facts relating to the cause of action were all time outside the knowledge (constructive or actual) of the plaintiff. 

25.	The plaintiff's motion was filed on 16.10.2002 i.e. six years after he suffered the alleged injury. Therefore court has to determine whether the plaintiff was not aware of his cause of action against the defendants, until he was instructed by his solicitors.

26.	The defendants argued that the plaintiff was well aware of his condition in 1998, as he filed for a claim under the Workmen's Compensation Act, and therefore, the plaintiff had ample time to institute an action since 1998. In other words the limitation period started running in 1998. 

27.	The plaintiff argued that only after he received instructions from his solicitors in 2000, he became aware of the cause of action, thus until such time the material facts relating to the cause of action were outside the knowledge of the plaintiff.

28.	In light of the above arguments court has to decide following issues:

•	Whether the material facts relating to the cause of action were outside the knowledge of the plaintiff. 

•	When the time did start running, whether from the date on which the application form under Workmen's Compensation Act was signed or from the date on which the plaintiff was advised by his solicitors i.e. 14.03.2000.

•	Was the plaintiff in ignorance of a material fact of a decisive character until 2000?

Following authorities give some important guidelines on this issue.

29.	Smith v. Central Asbestos Co Ltd [1971] 3 WLR 206 at 214, 215.

Time does not count against a man until he knows, actually or constructively, that he has a worthwhile cause of action. Once he does know it, actually constructively, he must bring his action within 12 months of knowledge of it. 

30.	In Godchild v. Greatness Timber Co Ltd [1968] 2 All.E.R.255 at 257:

But if the injury was from the beginning fairly serious or at any rate sufficiently serious to make it worthwhile to bring an action, then he must bring it within the first 3 years. The time will not be extended simply because it turns out after 3 years to be more serious than he at first thought.

31.	In order to fulfil the requirements of section 16(3), the plaintiff must prove that he did not know actually or constructively, a "material fact" of a "decisive character" until within the last 12 months he brought his action.

32.	In Central Asbestos Co. v. Dodd [1972] 2 Lloyd's Report 413, it was held that 'the fact that the plaintiff did not know his injuries were attributable to the defendant's negligence, i.e. that he had a legal remedy or cause of action against the defendant was a 'material fact' of a 'decisive character'

33.	If the plaintiff did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice, his lateness in bringing the action is not excused.

34.	Section 19 of the Act defines the meaning of 'material facts' relating to a cause of action. One of them is the 'extent of injuries.

Section 19 reads:

In section 16 and 18 any reference to material facts relating to a cause of action means a reference to any one or more of the following:-

a.	 The fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

b.	The nature or the extent of the personal injuries resulting from that negligence, nuisance or breach of duty;

c.	The fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable. 

35.	In light of the above section, the material facts relating to the plaintiff's cause of action are as follows:

•	The plaintiff developed an abdominal pain when he lifted a generator whilst at work which was later diagnosed as hernia.

•	As a result of that incident the plaintiff had to undergo a surgery at the CWM Hospital and thereafter he developed some post operative complications and was readmitted to the hospital on 16.05.1997.

•	On 21.05.1997, the plaintiff was taken to the theatre and his wound open up.

36.	In the present action the plaintiff first had actual knowledge that his disease was attributable in law to the defendant's negligence and/or breach of duty when he signed the Workmen's Compensation Form in 1998, and therefore there is no justifiable reason for him to refrain from obtaining proper legal advice.

37.	As required under section 4(1) of the Act, this action which is a claim for personal injuries, should have been instituted within three years from the date of accident. The accident occurred on 21 October 1997, and the three year period would have expired on 21 January 1998.

38.	Even if it is assumed that the plaintiff was made aware of the nature of and the extent of his injuries, and also the fact that those injuries were attributable to the negligence of the defendants only after he obtained the medical report dated 14.03.2001, the plaintiff still had 12 months to institute the action within the time limit but he failed to do so until 17.10.2002, which shows that he is 19 months out of time.

39.	In view of the above, it is apparent that before the expiration of 3 years the plaintiff knew, or had within the means of his knowledge either constructive or actual, the fact that he developed hernia while employed by the 1st defendant. Further, the plaintiff knew, or had within the means of his knowledge, the fact that he was having some post operation complications as a result of the surgery performed on him by the CWM hospital on 28.04.97. The plaintiff sought legal advice in 2000, but brought his claim against the defendants in 2002, i.e. 24 months after he sought legal advice from his solicitors. 

40.	Hence, the test to be applied in deciding whether to grant an extension or not can be formulated as follows:

Whether or not before the expiration of 3 years, the plaintiff had knowledge (actual or constructive) that the medical complications resulted from (the defendant's) negligence or were attributable to the defendants negligence? If the answer is 'yes' then he had the necessary knowledge, then it is plain and obvious that any action would be statue barred, and if the answer is 'no he did not', then leave ought to be granted to him to proceed. 

41.	Under section 16(3)(a) of the Limitation Act the plaintiff has 12 months after the end of 3 years period to bring the action. But even after he had legal advice from his solicitors in 2000, he failed to institute the action within one year. Therefore the plaintiff cannot have recourse to section 16(3) (a), thus the arguments advanced by the plaintiff will fail. 

42.	Applying these conditions here, taking the affidavits and the medical report as they stand, it seems to me that the court without further evidence, may be able to say that the plaintiff (or any reasonable person in his position) knew everything which was material within the first 3 years to bring a worthwhile action. 

43.	In view of the above, it is my considered view that the plaintiff knew or ought to have known the nature and extent of his injuries after the accident and in particular during his at stay at CWM until he was finally discharged on 30.06.1997. Therefore, the plaintiff has failed to fulfil the requirements of section 16(3), because; he had knowledge actual or constructive of a decisive character well before the end of the 3 year period and earlier than 12 months before the end of that period. Hence, I am not inclined to accept the plaintiff's submission that he did not have the knowledge of facts of a decisive character relating to the injuries he suffered, until his solicitors obtained the medical report.

44.	Upon considering the foregoing facts, I find that the plaintiff was dilatory in commencing his action within the limitation period particularly when he was well aware of the nature and extent of his personal injury at the time of the accident or shortly after his discharge from the hospital in 1998. Hence, the reasons advanced by the plaintiff are devoid of merits and they have hardly any legal basis.

45.	On the above premise, I dismiss the plaintiff's application. Cost is summarily assessed in the sum of $ 400.00.

Pradeep Hettiarachchi
JUDGE

At Suva
21st March, 2012