Jacob Simbuaken v Neville Egari and The Independent State of Papua New Guinea (2009) N3824

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 29 September 2009
• Court: National Court
• Citation: (2009) N3824
• Docket Number: WS NO. 512 OF 1994
• Year: 2009
• Judgement Number: N3824

Full Title: WS NO. 512 OF 1994; Jacob Simbuaken v Neville Egari and The Independent State of Papua New Guinea (2009) N3824

National Court: Davani J

Judgment Delivered: 29 September 2009

N3824

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 512 OF 1994

BETWEEN:

JACOB SIMBUAKEN

Plaintiff

AND:

NEVILLE EGARI

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Davani .J

2009: 27th, 28th July

29th September

PLEADINGS – Statement of Claim – specific pleading of vicarious liability – specific pleading of s.1(1) of the Wrongs (Miscellaneous) Provisions Act chapter 279 – where plaintiff’s cause of action depends on statute, must plead all necessary facts to bring him within the statute.

EVIDENCE – Medical evidence – must be attached to affidavit of medical practitioner – s.37 of Evidence Act chapter 4.

Facts

The matter proceeded to trial on assessment of damages where the plaintiff had obtained default judgment on a claim where he had allegedly been involved in a motor vehicle accident, whilst a passenger in a vehicle driven by an employee of the State.

Issues

1. Whether the Court can revisit the aspect of liability after the entry of default judgment?

2. Should the aspect of vicarious liability be properly pleaded by pleading the relevant legislative provision?

3. Whether the Court can accept or place any weight on evidence of a medical practitioner that is attached to the plaintiff’s affidavit and not his or her own affidavit?

Held

1. The Court found firstly that the plaintiff must specifically plead s.1(1)(a) of the Wrongs (Miscellaneous) Provisions Act to establish the aspect of the State’s vicarious liability. The pleading of brief facts alone is insufficient.

2. That the Court can revisit the aspect of liability after the entry of default judgment where the Court finds that the statutory provision is not pleaded and where the assessment of damages will be a futile exercise.

3. That medical reports must be attached to the affidavit of the medical practitioner who prepared the report, and if not done, will be declared inadmissible. That in the event it is tendered into evidence, that the Court should not place any weight on it.

Cases Cited:

Papua New Guinea Cases

Het Pakena v. The State and Ors N1369

Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamuna Paul Piru, Powes Parkop and Members of the Students Representative Council and all those students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401

The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR 5

Yange Lagan & 58 Ors v. The State, WS 419 of 1995

Keith Reid v. Murray Hallam and Allcad Pty Ltd (1995) N1337

Obed Lalip for himself and on behalf of Marae Kulap and Francis Minalo v. Fred Sikiot & The State (1996) N1457

Abel Tomba v. The Independent State of Papua New Guinea (1997) SC 518

Andale More and Manis Andale v. Henry Tokam and The State (1997) N1645

Wama Kints & 3 Ors v. Senior Constable Pius Kundi, Sergeant Vonomo Makis, Commissioner for Police & The Independent State of Papua New Guinea (2001) PGNC 88 N2113

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC692

Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002), National Court, N2182

William Mel v. Coleman Pakalia & Ors (2005) SC790

Jack Pinda v. Sam Inguba, The Police Commissioner and the Independent State of Papua New Guinea (unreported, delivered on 28/5/09)

Overseas Cases

Lloyde v. West Midlands Gas Board [1971] 1WLR 749

Pawding v. London Brick Co. (1971) 4 K.I.R 207

Read v. Brown (1988) 22 Q.B.D 128

Subramaniam v. Public Prosecutor [1956] 1 WLR 965

Seear v. Lawson (1881) 16 Ch. D. 121

West Rand Co. v. Rex [1905] 2 K.B 399

Waghorn v. George Wimpey & Co. Ltd [1969] 1 W.L.R 1764

Other References

McGregor on Damages, (Sweet & Maxwell), 13th Ed, 1972, London

Counsel

D. Dotaona, for the plaintiff

T. Tanuvasa, for the first and second defendants

29th September, 2009

DECISION

1. DAVANI .J – This is a hearing on the assessment of damages for and on behalf of the plaintiff, default judgment having been obtained on 21st July, 2006.

Background

2. The Writ of Summons and Statement of Claim was filed on 15th July, 1994 by Andrew G Corren & Company Lawyers. In the Statement of Claim, the plaintiff claims damages as a result of a motor vehicle accident which occurred on or about 28th August, 1991. The plaintiff pleads that at that time, he was a passenger in a motor vehicle, registration no. ZGA-669 owned by the State. The vehicle was driven by the first defendant when he lost control and overturned near the Pausa High School section of the Highlands Highway in the Enga Province. The plaintiff claims to have sustained injuries as a result of the motor vehicle accident.

3. The particulars of injuries suffered were;

- an unsightly scar and disfigurement to his right forehead;

- 5 percent loss of efficiency of masticatory (chewing) function;

- Loss of two (2) front teeth (central incisors and lateral incisor).

4. The plaintiff pleads that he incurred medical and associated expenses, particulars of which he claimed would be provided prior to trial.

5. The plaintiff is represented by Dotaona Lawyers.

6. The first and second defendants are represented at this hearing by Mr Tanuvasa of the Solicitor-General’s Office.

Analysis of evidence and the law

7. The main issue before the Court is whether the plaintiff is entitled to the damages he claims, being;

- pain suffering and loss of amenities between K25,000.00 to K30,000.00;

- out-of-pocket expenses of K40,000.00;

- interest;

- costs.

8. In a trial on assessment of damages, the Court must be slow to making awards unless the damages claimed are properly proven. The National Court has emphasized this principle in many cases, one of which is Obed Lalip for himself and on behalf of Marae Kulap and Francis Minalo v. Fred Sikiot & The State (1996) N1457 where Injia .J (as he then was) said;

“Just because the plaintiff has obtained default judgment, does not mean that he is entitled as of right to receive damages. He must prove the damages suffered by credible evidence.”

9. And damages to be sought is only what is pleaded in the Statement of Claim. As was held in Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamuna Paul Piru, Powes Parkop and Members of the Students Representative Council and all those students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401, the Supreme Court said at pg.405;

“A party cannot obtain relief which has not been requested or sought in the pleadings.”

10. As to principles that apply to a trial on assessment of damages, the case of Jack Pinda v. Sam Inguba, The Police Commissioner and the Independent State of Papua New Guinea (unreported, delivered on 28/5/09) Hartshorn .J said at pgs. 1 and 2;

“The Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC790 stated:

The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi .J in Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002), National Court, N2182

His Honour stated:

A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the Statement of Claim.

2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as many be pleaded and asked for in his Statement of Claim.

The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC692, Amet .CJ, Sheehan .J, Kandakasi .J.

Kandakasi .J applied those principles recently in the National Court in Desmond Huaimbukie v. James Baugen ((2004) N2589. We believe His Honour succinctly and correctly stated the law. We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. (See Keith Reid v. Murray Hallam...