Iwai Genbi v The Independent State of Papua New Guinea [1988-89] PNGLR 662

• Jurisdiction: Papua New Guinea
• Judge: Brunton J
• Judgment Date: 09 November 1989
• Court: National Court
• Citation: [1988-89] PNGLR 662
• Docket Number: Wenam Elkum v The Independent State of Papua New Guinea
• Year: 1989
• Judgement Number: N771

Full Title: Wenam Elkum v The Independent State of Papua New Guinea; Iwai Genbi v The Independent State of Papua New Guinea [1988-89] PNGLR 662

National Court: Brunton J

Judgment Delivered: 9 November 1989

N771

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WENAM ELKUM

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND IWAI GENBI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Goroka & Waigani

Brunton AJ

18-19 May 1989

9 November 1989

PRACTICE AND PROCEDURE — Striking out defence — Matters pleaded constituting general denial — Personal injuries claim — Denial or non-admission of all facts alleged — Whether abuse of process — Defence struck out — National Court Rules, O 8, r 28.

DAMAGES — Personal injuries — Particular awards of general damages — Pelvic fracture involving urethra — Minor eye injuries — Possible loss of 10 per cent function of leg with onset of osteoarthritis — Village gardener aged 19 years — Award of K9,500 general damages — Global award of K2,000 for possible future economic loss.

DAMAGES — Personal injuries — Particular awards of general damages — Leg and arm injuries — Fractures of tibia and right elbow — Ligamentous knee damage — Possible 5 per cent loss of function of leg with onset of osteoarthritis — Male subsistence farmer aged 25 years — Award of K6,000 general damages — Global award of K1,000 for possible future economic loss.

The National Court Rules, O 8, r 28, provides that a "party shall not plead the general issue".

In response to a statements of claim for damages for personal injuries suffered as a result of a motor vehicle accident, the defendant in its defences either denied or did not admit all of the facts alleged.

Held

(1) The defences should be struck out as being general denials not permitted by O 8, r 28, of the National Court Rules.

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 at 302, followed.

(2) It is an abuse of the process of the court to adopt a practice of filing defences in general terms as a formality to meet time limitations while leave of the court to extend time limitations is readily available.

(3) It is an abuse of the powers of the court not to admit facts which could reasonably be admitted or to deny facts which could reasonably be admitted.

Wenam Elkum v PNG:

The plaintiff, a male aged 19 years, working as a village gardener, claimed damages for personal injuries sustained in a motor vehicle accident. He suffered a fractured pelvis with partial tear of the urethra, bruising around the eyes and corneal scarring. He was hospitalised for three months, suffered no continuing urinary problems but was liable to a 10 per cent loss of function of the hip joint with the onset of osteoarthritis. The plaintiff continued to play some sports but had ceased playing rugby.

Held

(1) General damages for pain and suffering and loss of amenities should be assessed at K9,500.

(2) In the absence of evidence as to future economic loss, the court should fix a global amount, to reflect the plaintiff's reduced capacity to earn income in the future, at K2,000.

Nali Matabe v PNG [1988] PNGLR 309, followed.

Iwai Genbi v PNG:

The plaintiff, a male aged 25 years, and a village subsistence farmer, claimed damages for personal injuries sustained in a motor vehicle accident. The plaintiff suffered arm and leg injuries, including fractures of the right elbow and right tibia with damage to the ligaments of the right knee which required three months hospitalisation. The plaintiff faced the possibility of the onset of osteoarthritis within two to five years with prognosis of a 5 per cent loss of function of the leg. The plaintiff had ceased playing football and basketball.

Held

(1) General damages for pain and suffering and loss of amenities should be assessed at K6,000.

(2) A global sum of K1,000 should be awarded for any loss of income arising from possible future incapacity resulting from osteoarthritis.

Cases Cited

Aundak Kupil v PNG [1983] PNGLR 350.

Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365.

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301.

Jeremiah O'Hello v Kayel Shipping Co Pty Ltd [1980] PNGLR 361.

Nali Matabe v PNG [1988] PNGLR 309.

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436.

Warner v Sampson [1959] 2 WLR 109; [1959] 1 All ER 120.

Statements of Claim

These were two separate actions, for damages for personal injuries, arising out of the same motor vehicle accident.

Counsel

S Malaga, for the plaintiffs.

J K Puringi, for the defendant.

Cur adv vult

9 November 1989

BRUNTON AJ: Two separate writs of summons by the plaintiffs were issued against the defendant alleging negligence against the servants or agents of the defendant pursuant to the provisions of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) Pt 1, Div 1 and Div 2. The actions arose out of a motor vehicle accident in which the plaintiffs received personal injuries.

By consent, both matters were tried together.

A preliminary objection was taken by the plaintiffs to the defence filed by the defendant that it was contrary to O 8, r 28, of the National Court Rules, in that it was said that the defence was a plea to the general issue — or, as Mr Malaga put it, a quasi plea to the general issue, and should be struck out.

Order 8, r 28, of the National Court Rules provides:

"A party shall not plead the general issue."

The defences filed for the defendant were in substantially similar terms:

"1. The Defendant does not admit the allegations in Paragraphs 1 and 2 of the Statement of Claim.

2. It denies the allegations in Paragraph 3 of the Statement of Claim.

3. It does not admit the allegations in Paragraphs 4, 5, 6, 7, 8 and 9 of the Claim, and to each and every particular thereunder.

4. The Defendant denies that he will suffer loss of earnings as a result of (sic) the injury.

5. If the Defendant was negligent which is not admitted, then the Plaintiff is guilty of contributory negligence."

Paragraph 1 of the defence did not admit the status, age or residence of the plaintiffs. Paragraph 2 denied the matrimonial status of the plaintiffs. Paragraph 3 denied that a vehicle owned by the defendant had run into the plaintiffs, that they had been injured, denied all the particulars of negligence alleged by the plaintiffs, and denied the injuries suffered by the plaintiffs. Paragraph 4 denied future loss of earnings. Paragraph 5 alleged contributory negligence and particularised that allegation.

Mr Malaga relied on the judgment of Kapi Dep CJ in Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 to support his application to strike out the defence. In that case his Honour said (at 302):

"The purpose of O 8, r 28 is to prohibit the defendant from making a general denial without specifically denying the facts or basis upon which the plaintiff's cause of action is based. The reason for this is obvious. The purpose of pleading is to set out clearly the issues; not only to inform the other party but the Court as well. Each party needs to know the nature of the case against him so that he cannot be caught by surprise at the trial. Any pleading which tends not to deny specifically a fact but denies a matter generally, eg, a simple denial of a debt in an action for debt, would be a general denial without specifically denying the basis of the plaintiff's action."

In Hornibrook, the defence was in the following terms:

"2. the Defendant does not admit the allegations contained in paragraphs 3 to 10 of the Statement of Claim.

3. Save as aforesaid, the defendant denies each and every allegation contained in the Statement of Claim."

Mr...