Jack Lundu Yalao v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 08 December 1995
• Citation: (1995) N1386
• Court: National Court
• Year: 1995
• Judgement Number: N1386

National Court: Injia J

Judgment Delivered: 8 December 1995

N1386

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 922 OF 1991 (H)

BETWEEN

JACK LUNDU YALAO — PLAINTIFF

AND

MOTOR VEHICLES INSURANCE (PNG) TRUST — DEFENDANT

Mount Hagen

Injia J

7 July 1995

7 October 1995

21 October 1995

27 October 1995

8 December 1995

PRACTICE AND PROCEDURE — Application to re-open trial at the end of trial and after written submissions on evidence filed — Discretion — Grounds for exercising discretion — Nature and importance of the evidence (sought to be introduced) to the issues in the trial.

PRACTICE AND PROCEDURE — Pleadings — Defence — Method of traversing fact alleged in Statement of Claim — Appropriateness of method — Whether defendant who knows or should know an alleged matter of mixed fact and law may plead non-admission due to lack of knowledge of that fact — Whether such pleading is inappropriate to the nature of the plaintiff's pleadings, or discloses no reasonable defence, or causes unnecessary prejudice to the plaintiff or is an abuse of the court's process — National Court Rules O 8 rr 21 (2), 27.

STATUTE — Claim for damages pursuant to Motor Vehicles (Third Party Insurance) Act Ch No 295 — Appropriateness of pleadings in the context of the nature and extent of Motor Vehicles Insurance (PNG) Trust's liability for death or personal injury arising from insured, uninsured or unidentified motor vehicles discussed — Motor Vehicles (Third Party Insurance) Act Ch No 295, ss. 44, 50, 53, 54 (1), (6); 57 (1) (b), (c).

HELD:

(1) The nature and importance of the evidence sought to be called upon re-opening the case to the material issue (s) in the trial is an important factor affecting the exercise of discretion whether or not to re-open the case:

Parao Tunboro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 273 considered.

(2) Because the insured status of the motor vehicle which caused the injury to the plaintiff was known or ought to be known by the Defendant Trust from its own records and accounts required to be kept pursuant to s. 44, 49 and 53 of the Motor Vehicles (Third Party Insurance) Act Ch No 295, it was wrong for the defendant to plead in its defence that it did not know of and therefore could not admit the insured status of the subject motor vehicle as pleaded in the Statement of Claim. Such pleading was an inappropriate method of traversing the alleged fact; it did not disclose a reasonable defence; it caused prejudice to the plaintiff and may as well have constituted an abuse of the court's process.

Motor Vehicles Insurance (PNG) Trust v Nande Waige & 2 Others, Unrep. SC478 [1995].

Adevu v Motor Vehicles Insurance (PNG) Trust Unrep. SC461 [1994] both distinguished.

(3) One of the main purpose of the Motor Vehicles (Third Party Insurance) Act Ch No 295 being to set up a statutory scheme to compensate an injured person who has suffered damages as a result of the use of an insured motor vehicle, or an uninsured motor vehicle driven on a public street or a motor vehicle whose identity in terms of registration, insurance, driver and ownership cannot be established after reasonable enquiry, the defendant Trust cannot, by pleading or otherwise, seek to exonerate itself from liability by insisting on strict proof of the insured status of the subject motor vehicle: the insured status of the subject motor vehicle being of little or no consequence to the Trust insofar as the Trust's liability to the plaintiff is concerned.

(4) In the circumstances, the plaintiff is granted leave to re-open his case to call evidence from the defendant's Claims Manager as to the insurance status of the subject motor vehicle which was identified and pleaded in the plaintiff's Statement of Claim.

Cases Cited

Imambu Alo v Motor Vehicles Insurance (PNG) Trust Unrep. N1122

Bepiwan Ambon v Motor Vehicles Insurance (PNG) Trust Unrep. National Court Judgment Wabag 1992

Andreas Hara v Motor Vehicles Insurance (PNG) Trust Unrep. National Court Judgment Waigani 1994

Adevu v Motor Vehicles Insurance (PNG) Trust Unrep. SC461 [1994]

Motor Vehicles Insurance (PNG) Trust v Nande Waige & 2 Others Unrep. SC478 [1995]

Wenam Elkum & Another v State [1986] PNGLR 301

Counsel:

A Manase for the Plaintiff/Applicant

PW Smith for the Defendant/Respondent

RULING

8 December 1995

INJIA J: This is the plaintiff's application to re-open the trial to allow the plaintiff to call fresh evidence as to the third-party insurance status of the subject motor vehicle which was involved in an accident at Panguna in 1987. If the application is successful, the plaintiff intends to call the defendant's claims manager Mr Paul Butler to give evidence and to produce documents relating to the subject motor vehicle identified as a Datsun 180B Reg. No AE1 997, certificate of insurance No 57980.

The application has been made after the end of the trial and written submissions were already filed. It appears that the plaintiff discovered the need to call this evidence from the defendant's submission in which the defendant denied liability on the basis inter-alia, that the plaintiff had failed to prove the current third party insurance status of the subject motor vehicle.

At the trial, the plaintiff produced evidence from Mr Chris Passongo showing that he was the driver of a motor vehicle, a Datsun 120Y Reg. No ABU:331 in which the plaintiff was a passenger. On 5 November 1987, he drove the vehicle on the Espie Highway in Bougainville and was heading towards Panguna when another vehicle which he only identified as a Datsun 180B came from the opposite direction downhill, overtook another vehicle and collided into his motor vehicle thereby causing his vehicle to overturn and injuring him and the plaintiff. Mr Passongo did not identify the insurance and registration number, driver and the owner of the Datsun 180B. This vehicle is however identified in the plaintiff's statement of claim (in para 3) as a Datsun 180B Reg. No AEI 997 which was owned by Joe Simu and driven by Salang Senge. And then in paragraph 4 of the Statement of Claim, it was alleged that the vehicle was insured at the material time. The plaintiff's action was based solely on the negligent driving of the Datsn 180B and not of Mr Passongo's motor vehicle. The defendant, whilst admitting the registration and insurance of Mr Passongo's vehicle (the Datsun 180Y) did not cross examine Mr Passongo on the current registration and insurance of the Datsun 180B. The defendant also did not call any evidence on these aspects.

The issue before me is whether or not I should allow the plaintiff to re-open its case in the circumstances outlined above. In order to decide this issue, I need to deal...