IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 34 of 2012

BETWEEN:

MOHAMMED YAKUB and BALASWARI KIRAN also known BALESHWARI both of Howrah Crescent, Rifle Range, Lautoka, Fiji in their personal capacity and as Administrators of the ESTATE OF MOHAMMED YAFIM of Howrah Crescent, Rifle Range, Lautoka, deceased, intestate.
PLAINTIFFS

AND:

PENIASI TUIVOMO
of Dreketi, Feeder Road, Saweni, Lautoka.
1ST DEFENDANT

AND :

MOHAMMED AIYAZ
of 43 Drasa Avenue, Lautoka.
2ND DEFENDANT

RULING

INTRODUCTION

[1].	Mohammed Yafim was twenty four years of age and single when he died on 27 July 2007 as a result of a motor vehicle accident. He is survived by his parents, Mohammed Yakub and Baleshwari. Yakub and Baleshwari were granted Letters of Administration over Yafim’s estate on 22 July 2008. They now seek leave ex-parte to institute civil proceedings in their own right and as administrators of Yafim’s estate against one Peniasi Tuivomo and one Mohammed Aiyaz.

[2].	An affidavit of Mohammed Yakub is filed herein support of the application. In it, Yakub deposes that on 27 July 2007, Yafim was a passenger in motor vehicle DY065 when their vehicle was struck by another motor vehicle registration number DG618 which was being driven by one Peniasi Tuivomo. Yakub alleges that a female passenger in Tuivomo’s car also died from injuries she sustained as a result of the accident.

[3].	According to Yakub, Tuivomo was charged on two counts of Causing Death By Dangerous Driving at the Lautoka Magistrates Court. A Ruling on this case is yet pending.

[4].	As to why no claim is yet filed, Yakub deposes as follows in paragraphs 8 to 11 of his affidavit.

8.	…it was several years into the accident that I was called to give evidence against the 1st Defendant in the Lautoka Magistrates Court. Judgement is yet to be delivered and the said is listed for mention in March this year.

9.	…we discussed with the police officers about our son’s case and the possibility of a civil claim against the 1st Defendant and their advice was that it was best to await the outcome of the criminal case as a acquittal would mean we had no case against the 1st Defendant. And as the criminal case progressed the time limit for a personal injury case expired in 2010.

10.	…some two weeks ago we approached our current lawyer who advised us that a acquittal or a conviction in a criminal case would not necessarily be conclusive and trial in a case and it was important to apply to Court for leave to file a claim out of time. We were also advised not to await the decision of the criminal case.

11.	…hence we are seeking leave of this Honourable Court to file claim beyond the limitation period.

[5].	In paragraph 12, Yakub opines as follows:

12.	…no [prejudice will be caused to the Defendants as the police evidence clearly shows that 1st Defendant’s car crossed into the path of my son’s car at a high speed.

DISCRETION TO GRANT LEAVE

[6].	This Court does have a discretion as to whether or not to grant leave to file or continue proceedings out of time. However, that discretion only becomes available if, and only if, the plaintiff has satisfied the evidentiary requirements of section 17(3) (or section 17(2) if the plaintiff is seeking leave without having already filed a writ of summons and claim).

[7].	The Fiji Court of Appeal in Sharma v Sabolalevu [1999] FJCA 56; [1999] 45 FLR 204 (27 August 1999), the Fiji Court of Appeal clarified the above position as follows (my emphasis):

On these statutory provisions we have two comments.

First, it is apparent that the three elements of s 17(3), including the requirements of s 16(3), must be fulfilled before the court can grant leave. That emerges from s 17(3) providing that the court may grant leave “if but only if” the requirements of the subsection are fulfilled. If these requirements are not fulfilled, the court lacks jurisdiction to grant leave. No question of discretion arises.

If the requirements are fulfilled the court “may” grant leave, that is the court then has a discretion. In exercising that discretion the court will have regard to such matters as the cause or reason for the delay, and whether, and if so to what extent, the defendant may have been prejudiced in his defence by the delay. Further the court can then consider whether, having regard to all the circumstances, it is just to grant leave.

Secondly we emphasise the importance of these provisions limiting the right to bring actions for personal injuries. They can have a significant effect on any person who has suffered injuries as the result of the actions of another. The provisions of s 16 and s 17 are in our view, unnecessarily complex and difficult to understand. Indeed they can fairly be described as convoluted. This is an undesirable feature of legislation that can affect the lives of ordinary citizens. It is our recommendation that the authorities give active consideration to the re‑enactment of these provisions in a form that is simple, clear and easy to understand. A useful model is the provisions in the Limitation Act 1980 (UK), which fulfil these requirements, and which replaced the provisions of the 1963 UK Act, which were in terms substantially the same as those in the Fiji Act.

[8].	In the above case, the Fiji Court of Appeal rejected an argument that even if the plaintiff had not succeeded in adducing evidence, it was still open to the court to exercise a discretion on a balance of prejudice approach.

Mr. Chand submitted that even if the appellant had not fulfilled the requirements of s 16(3) and s 17(3), the Judge ought to have exercised his discretion by granting the application, on the grounds that the prejudice to the appellant from not granting the application is greater than the prejudice to the respondents from granting it. 

This submission cannot succeed. As we have pointed out, the court’s discretion arises only after the appellant has cleared the hurdles of s 16(3) and the three ingredients of s 17(3). If, as in this case, he stumbles and falls at either hurdle, no question of discretion can arise. In this respect, we point out that the Act contains no provision equivalent to s.33(3) (a) of the UK Act which provides that, in considering an application, the court shall have regard to all the circumstances of the case and in particular to the matters referred to in the subsection, a provision recently considered by the Court of Appeal in England in Coad v. Cornwell and Isles of Scilly Health Authority [1997] 8 Med LR 154.

LIMITATION ACT

[9].	The policy reasons behind having a Limitation Act was reiterated by the English Court of Appeal in Ministry of Defence (Respondent) v AB and others (Appellants) [2012] UKSC 9 as follows:

6. The statutes of limitation, which stretch back to 1540, have been in place for two main reasons. One is to protect defendants from being vexed by stale claims. They are Acts of peace: see A'Court v Cross (1825) 3 Bing 329, 332 (Best CJ). The other is to require claims to be put before the court at a time when the evidence necessary for their fair adjudication is likely to remain available, or, in the words of the preamble to the 1540 Act, at a time before it becomes "above the Remembrance of any living Man...to...know the perfect Certainty of such Things". Conventionally, therefore, they have required the assertion, by claim, of a cause of action within a specified period following its accrual.

[10].	In Fiji, section 4(1)(i) of the Limitation Act sets the limitation period for personal injury claims at 3 years. If time has run out, the claimant may still seek the leave of the court under section 16(1)(a) of the Limitation Act.

16.-(1) the provisions of subsection (1) of section 4 shall not afford any 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 purposes of this section; and

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

(2) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or 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 the plaintiff or any other person.

(3) 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 the date on which the action was brought.

[11].	Section 17(1) and (2) of the Limitation Act require that an application for extension made before the commencement of an action must be made ex-parte. 

Application for leave of court

17.-(1) Any application for the leave of the court for the purposes of section 16 shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications which are made after the commencement of a relevant action.

(2) Where such an application is made before the commencement of any 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 such an action were brought forthwith and 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.

[12].	In this case, the plaintiff seeking leave to institute proceedings. 

WHAT PLAINTIFF MUST ESTABLISH?

[13].	The plaintiff must establish two things pursuant to section 17(2) before this Court can assume jurisdiction to exercise any discretion on whether or not to grant leave. First, evidence must be adduced to establish the cause of action relied on. Second, evidence must be adduced to establish the requirements of section 16(3).

[14].	In terms of the requirements of section 16(3) (see paragraph [10] above), the plaintiff must prove that the material facts relating to the cause of action were, or included facts of a decisive character which were at all times outside the actual or constructive knowledge 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 the date on which the action was brought.

[15].	Having said that, I must point out also that, even where a plaintiff has in fact adduced sufficient evidence pursuant to section 17(3), and the court has granted leave, it is still open to the defendant to raise the limitation period defence under section 4 of the Limitation Act (see Abdul v Bi [2012] FJHC 816; HBA2.2011 (18 January 2012 as per Wati J).

ANALYSIS

[16].	As to the first requirement, the allegation that Yafim died from injuries he sustained as a result of a collision between a vehicle in which he was travelling as a passenger (registration number DY605) and another (registration number DG618), and the allegation that the driver of the other vehicle (Peniasi Tuivomo) is, consequently, facing a criminal charge, if taken to be proven, would more than establish a cause of action. However, there is no documentary evidence (such as a police report or a rough/fair sketch plan or statements taken by police or some confirmation from the Magistrates Court Registry) annexed to support the allegations.

[17].	But I would have been prepared to overlook the above had the applicant established the second limb. However, in this case, I find that he has not done so. What essentially the applicant is alleging (see paragraph [4] above) is that he was misadvised by Police to await the outcome of the criminal proceedings. He only found out later after seeking legal advice from a lawyer that the outcome of the criminal proceedings was not entirely conclusive on any related civil claim. By the time he finally received the benefit of legal advice, the three year limitation period had long expired.

[18].	To reiterate, section 16(3) requires the plaintiff to prove that material facts relating to the cause of action were, or included facts of a decisive character which were at all times outside the actual or constructive knowledge of the plaintiff until a date which was 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. Knowledge or ignorance of the law is irrelevant in this equation. 

[19].	In England, legislative changes have been made to widen the discretionary powers of the Court to override the limitation period where it would be equitable to do so and this includes cases where, for example, a plaintiff knew the facts but did not know his legal rights. Unfortunately, we in Fiji are still stuck with a rather piece of archaic legislation in this regard and have not been abreast with developments in other jurisdictions in this area of the law.

[20].	I regret I must refuse the application for leave to file a claim out of time.

..................................
Anare Tuilevuka
JUDGE
28 January 2014