Indu Mati v. Ajnesh Vinesh

• Jurisdiction: Fiji
• Judge: Master U.L. Mohamed Azhar
• Judgment Date: 02 January 2018
• Date: 02 January 2018
• Docket Number: Civil Action No. HBC 212 of 2018 In The Matter Of an application for leave to commence proceedings in which the limitation period has lapsed. And In The Matter Of section 16 (3) & 17 (i) of Limitation Act 1971.
• Counsel: Ms. J. Singh (L/A) for the Applicant/Plaintiff
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 212 of 2018

In The Matter Of an application for leave to commence proceedings in which the limitation period has lapsed.

And In The Matter Of section 16 (3) & 17 (i) of Limitation Act 1971.

Between:

Indu Mati of Solovi, Nadi, Self Employed Farmer.

Applicant/Plaintiff

v.

Ajnesh Vinesh of Togo, Nadi, and Occupation unknown.

Respondent/Defendant

Before:

Master U.L. Mohamed Azhar

Date of Ruling: 02.11. 2018

Counsel:

Ms. J. Singh (L/A) for the Applicant/Plaintiff

RULING

01. The applicant and the intended plaintiff filed this ex-parte notice of motion on 25.09.2018 pursuant to section 17 (1) of the Limitation Act 1971 (the Act), seeking extension of time to bring an action for damages against the defendant for the injuries allegedly caused to her as a result of the road traffic accident occurred on 17.05.2015. The application is supported by an affidavit sworn by her. On the day the motion was listed for support, the legal aid counsel who represented the intended plaintiff sought leave of the court to file the written submission in support of the motion and the court allowed the application. Accordingly, plaintiff's counsel filed the written submission supporting motion.

02. The proviso under section 4(1) of the Act clearly provides that, an action in respect of personal injuries should be commenced within 3 years from the date on which the cause of action accrued. However section 16 of the Act confers the discretionary power to the court to extend the time limit for actions in respect of personal injuries, upon fulfilling the certain requirements. For the court to consider the extension of time, the application shall made in accordance with section 17 of the Act, which provides;

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.

(3) 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.

(4) In this section, “relevant action”, in relation to an application for the leave of the court, means any action in connection with which the leave sought by the application is required.

03. The above section stipulates that, whether application is made before or after the commencement of any action, the court may grant leave only if it appears to the court, on evidence adduced by or on behalf of the plaintiff, that it establishes a cause of action and it fulfills the requirements of section 16 (3) of the Act, if such an action were brought forthwith. The relevant sub-section that provides the requirements is as follow;

16 (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. (Emphasis added).

04. The Act in sections 19 and 20 also provide the meaning of material facts relating to a cause of action and the facts of decisive character for further convenience. Those sections are;

Meaning of “material facts relating to a cause of action”

19. In sections 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 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.

Meaning of “facts of a decisive character”

20. For the purposes 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...