IN THE HIGH COURT OF FIJI AT SUVA CIVIL JURISDICTION. Civil Action No. HBC 97 OF 2009 BETWEEN : AND:

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1 IN THE HIGH COURT OF FIJI AT SUVA CIVIL JURISDICTION Civil Action No. HBC 97 OF 2009 BETWEEN : MATAIASI DRODROLAGI of Qauia Settlement, Lami, Welder as the husband and administrator in the Estate of LITIANA DRODROLAGI PLAINTIFF AND: MINJESK INVESTMENT CORPORATION LIMITED trading as SUVA PRIVATE HOSPITAL having its registered head office at 120 Amy Street, Toorak, Suva FIRST DEFENDANT AND: DR. PAN YI, place of abode unknown, Doctor, Suva Private Hospital, Suva SECOND DEFENDANT COUNSELS: Mr Daniel Singh for the Plaintiff Mr Parnes T for 1st Defendant Unrepresented, 2nd Defendant Date of Hearing : 24th November, 2011 Date of Judgement : 26th January, 2012 A. Background JUDGEMENT 1. This case is filed by way of writ of summons on 19th March Claiming damages against the First Defendant Company trading as Suva Private Hospital and Second Defendant Dr. Pan Yi. 2. In Statement of Defence, the First Defendant denied inter-alia several averments in the Statement of Claim specifically referring to Section 4 of the Limitation Act. 3. When this matter came up before the Master on 30/3/2011, the Defendant seeked to file an application to strike out the Plaintiff's case. Master ordered the Defendant to file the application to Strike Out the Statement of Claim by the Plaintiff. Defendant filed an affidavit in support of First Defendant's summons to strike out Statement of Claim and to dismiss the Action on 5th May B. Grounds for Strike Out as pleaded by the 1st Defendant 1

2 (a) The Statement of Claim fails to disclose a reasonable cause of action by reason of the fact that claim is statute barred; and (b) The Statement of Claim is scandalous frivolous vexatious and an abuse of process. 4. First Defendant's summons to strike off the case made on the following basis: 1) Under Order 18 rule 18(1) of the High Court Rules 1988 and inherent jurisdiction of the Court. 2) Order 25 Rule 9 of the High Court Rules When this application came before Master on 23/5/2011. Plaintiff seeked 21 days to file his affidavit. First Defendant is opted to file his reply within 14 days. 6. Master made a ruling on 13/9/2011, Striking Out the Application of the Plaintiff. C. Application for Leave Under Order 59 Rule 10 of the High Court Rules 7. Against the Ruling of Master the Plaintiff filed summons for Leave to appeal on 22nd September 2011 within the specified time period under Order 59 Rule 10 of the High Court Rules. 8. Leave to appeal was granted by me inter-parte on 2nd November 2011 and hearing was fixed for 24 November The 1st Defendant filed affidavit in opposition on 16th November Affidavit in Reply was filed by the Plaintiff on 21/11/ Written submissions were filed by both parties, Plaintiff and the First Defendant and oral submissions were made before me on 24th November D. Submissions by the Plaintiff 11. Plaintiff's Counsel Mr Daniel Singh submitted the following:- 1) The issue to be decided in this matter is whether the Writ was Filed in time: (a) Writ of summons filed on 10/3/2006; (b) Operation on deceased (Mrs Litiana Drodrolagi) carried out on 7/3/2006; (c) Mrs Drodrolagi expired on 9th March Mr Singh submitted a copy of a proforma dated 10/3/09 initiated by Counter Clerk to attaching Writ of Summons being lodged by Messrs Daniel Singh seeking approval from Senior Court Officer which was approved. 13. This document does not contain a case number and said document is annexed to the Affidavit in Support dated 2nd August 2011 fixed on 19th October (It is noted this 2

3 document is not submitted up to the date of filing this application for leave to appeal). 13. He also submitted that cases quoted in para 15, 16, 17, 18, 19 and 20 of the Plaintiff's written submissions are relevant to this issue in contention. 14. The Learned Counsel also submitted that in fact the documents for writ of summons were forwarded to Registry on 10th March 2009 and 19th March Counsel quoted Cauchi vs Air Fiji Limited (referred in para 4 of the written submissions). 15. In the case of Barnes vs St. Helens Metropolitan BC (2006) EWCA Civ. 132 refers to uncontrollable situations by him. It is submitted Section 51 (1) of the Interpretation Act, should be applicable in this case by not taking into consideration the date of incident occurred and Learned Master has failed to take into account the date of incident. 16. Mr Singh stated that Master in his Ruling stated 7th of March 2006 (the date of operation) but it should be the date of the death, i.e. 9th March Counsel submitted this case as a case of Medical negligence and the Cause of Action accrues from the date of death. It was referred in para 11 of the written submissions paragraph page 155 of the book titled "Limitation Periods" Fifth Edition by Andrew McGee is quoted. 18. Mr Singh drew attention of Court to averments in paragraphs 14 to 20 of the written submissions, where certain cases being cited which are in favour of the Plaintiff. E. Defendant's submissions 19. Further to the written submissions Mr T Parnes Counsel made oral submissions on behalf of the 1st Defendant: (a) Counsel drew the attention of Courts Chronology of the case i) 7th March Operation ii) 9th March Deceased died iii) 19th March Writ of summons filed iv) 30th April Statement of Defence filed v) 30th April st Defendant wrote to the Plaintiff inviting withdrawal of the case on the grounds Claim is Statute barred. vi) 7th January Court listed the matter for strike out on 4th March 2011 vii) 3 March Plaintiff filed affidavit verifying list of documents. 3

4 viii) 10th May st Defendant's summons to strike out and dismiss action and affidavit in support filed. - - No affidavit was filed by the Plaintiff. ix) 4th August Hearing of the 1st Defendant's strike out Application. x) 13th September Ruling given to strike out the Action. 20. It is also submitted by the Learned Counsel. Section 4 of the Limitation Act is pleaded and Master listed the case for 4th March 2011 under Order 25 Rule 9 of the High Court Rules on the application made by the First Defendant Strike Out for want of Prosecution. 21. Master made his order on the basis of the materials filed before him as quoted in para 11 of the Ruling by the Master. 22. Subsequently, Plaintiff filed an affidavit on 22nd September 2011 and two issues arise: (a) Fresh evidence was adduced by the Plaintiff; (b) The receipt (proforma) filed with the affidavit is a lodgement document which does not indicate a case number or reference to the case. 23. The said document was not forwarded to the Master at that stage. 24. Counsel drew attention to the following matters in his written submissions: i) Para 12 of the written submissions. This case is a personal injury as a result of medical negligence; ii) Even if the submissions made by the Plaintiff is admitted on Limitation Act writ of summons lodged on 10th March and it is out of limitation time period; iii) Statement of Claim does not plead Medical Negligence; iv) The affidavit to be considered is 19th March 2011; v) Fresh evidence cannot be adduced at this stage; vi) Para 31 and 32 of the submissions deals with strike out principles and Plaintiff has not given any excuse for inordinate delay; 25. It is also submitted by the Counsel that there is no possibility of succeeding in this action. Master was correct in his ruling and Master exercised his discretionary power, on the materials available before him. 26. Counsel also drew attention to para 19 and 20 of the submissions and stated "Even if 10th March 2006 is considered as correct date, plaintiff cannot maintain this action" and 4

5 Master has exercised his powers correctly. 27. Further it was submitted having Master reached the decision on the limitation point, this court need not to consider further grounds raised by the Plaintiff relating to the for want of Prosecution and written submissions of 1st Defendant address this issue too. F. Reply by the Plaintiff's Counsel 28. Learned Counsel stated that there was an affidavit dated 2nd August 2011 annexed to Plaintiff's Affidavit of 19th October 2011 and it shows plaintiff was trying to file the affidavit on 2nd August 2011 (drawn attention to para 10 of Affidavit filed on 19th October Authorities cited in para 14 and 15 of the submissions confirm the position that there is no undue delay. 30. Paragraphs 18 and 19 of the Affidavit of 5th May 2011 filed by the 1st Defendant, no evidence is adduced by defendant to make the decision by the Master. G. Consideration of the Appeal 31. There are following issues to be addressed on the Master's Ruling: 1. Whether the Plaintiff is out of Limitation period and also for want of prosecution [Section 4(1) of the Limitation Act]. 2. Whether there is no reasonable cause of action disclosed against it and/or the Claim is frivolous and/or vexatious. 3. Whether there is inordinate and inexcusable delay on the part of the Plaintiff and such action or likely to cause or have caused serious prejudice to 1st Defendant. 32. The summons to strike out the statement of claim and dismissal of action is made under Order 18 Rule 18(1) of the High Court Rules, Order 18 Rule 18(1) states: "(i) The Court may at any stage of the proceedings order to be Struck Out or Amended any pleadings or indorsement of any writ in the action or anything in any pleadings or in the indorsement on the ground that:- (a) It discloses no reasonable cause of action or defence, as the case may be; or (b) It is scandalous frivolous or vexatious; or (c) It may prejudice embarrass or delay the fair trial of the action; or (d) It is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgement to be entered accordingly, as the case may be." 34. Learned Master made order: (i) Plaintiff to file affidavit in reply against the Defendant's claim to strike off the 5

6 case. 35. The following matters were raised in the present case: (i) Whether the Action is time barred. Plaintiff has admitted the following in his statement of claim: (a) Plaintiff's wife was admitted to Suva Private Hospital with a swollen thyroid goiter for treatment on 7th March 2006 to the First Defendant's Hospital (It is stated in the para 5 of the Statement of Claim as 2nd Defendant's Hospital, which is incorrect). The operation performed by the Second Defendant. It is also incorrectly stated in para 5 of the Claim as First Defendant). Since this incorrect averment is not an issue taken up at the hearing before Master, I am not taking this matter for consideration in this Leave to Appeal application. (b) An operation was performed by the Second Defendant on 7th March (ii) 14 days thereafter to the Defendant file affidavit in reply. 36. Plaintiff failed to file an affidavit in reply against the claim by 1st Defendant to strike out and dismiss the action. 37. Hearing of the 1st Defendant's strike out application was taken up on 4th August 2011 and Ruling was given by the Learned Master on 13th September 2011: (a) To Strike Out the Plaintiff's action; (b) Awarding cost assessed summarily in a sum of $500 and Plaintiff was ordered to pay the cost to the Defendant. H. Findings 38. Plaintiff submits that the writ of summons filed on 10/3/2009 and this position cannot be accepted. The only document forwarded by the Plaintiff is the proforma filed with regard to lodgement of documents which does not indicate any case number. This document too was not filed before the Master and adduced as fresh evidence, in the Leave to Appeal Application filed before this Court. 39. Accordingly, I hold that writ of summons is filed on 19th March 2009 which is outside the limitation period. The Plaintiff has quoted Cauchi vs Air Fiji Limited HBC (11th March 2004) which decision cannot be accepted since said decision was made under different circumstances. 40. Further Plaintiff filed this case on 19th March The alleged cause of action has arisen on 7th March 2006 and limitation period ended on 8th March When exclude the date of incident and the writ of summons case would have filed latest on 8th March Writ of Summons was filed on 19th March 2011 and I concede with Master that case was filed outside the limitation period. In a personal injury case cause of action arises on the 6

7 date incident occurred. The incident may result in the death. 42. But I am of the view and agree with the Master, limitation period commence from the date of the operation was performed i.e. 7th March I quote relevant paragraph in Section 4(1) of the Limitation Act Cap 345: 4(1)... Provided that: (i) In case of action for damage for Negligence, nuisance or breach of duty (whether duly exists by virtue of provision made by or under any act or independently or any contract or any such provision) where the damages claimed by the Plaintiff for negligence, nuisance or breach of duty consists of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for reference to six years there were substituted a reference to three years and... This case is admittedly personal injury case and the limitation period is 6 years from the date of incidence which resulted death subsequently. 44. The case quoted by the Plaintiff's counsel Barnes vs St. Helens Metropolitan B.C. [2006] EWCA Civ 1372 cannot be considered in relation to this case. In the said case reason for entertaining the application based on where the Court Registry failed to accept the claim documents when it was forwarded to the Clerk. In this matter writ of summons was filed only on 19th March 2011 which was after 12 days from the date of expiration of limitation period. 45. As I stated earlier in this Judgement, the limitation period ended on 8th March 2011 the new evidence of the proforma issued by the clerk of the Registry is dated 10/3/2008 and even this document is accepted the claim of the Plaintiff Applicant is time barred. 46. In the circumstances, Plaintiff Applicant cannot maintain the action filed and I agree with the Master's Ruling which extensively deal with the strike out principles. There is no necessity to consider other grounds pleaded by the Plaintiff Applicant since I concede the Action is time barred. 47. Accordingly, application for leave to appeal is dismissed and order the Plaintiff should pay summarily assessed costs of $1000 to the Defendant. Delivered on 26th January, C. KOTIGALAGE JUDGE 7

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