Komboro George v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 16 November 1993
• Citation: [1993] PNGLR 477
• Court: National Court
• Year: 1993
• Judgement Number: N1186

National Court: Woods J

Judgment Delivered: 16 November 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KOMBORO GEORGE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

3-4 November 1993

16 November 1993

PRACTICE AND PROCEDURE — Amendment of pleadings — Amendment of statement of claim after close of evidence — Whether prejudice to defendant — Amendment allowed.

Facts

The plaintiff sought to amend the statement of claim and pleading at the end of the trial of his action for damages for injuries sustained in a motor car accident. He sought to delete the phrase stating that the vehicle "was insured against liability under a third party policy of insurance". The amended pleading, which read that "the vehicle was uninsured", would accord with the facts established by the evidence and the relevant statutory provision.

Held

1. The National Court Rules O 8 r 50 allows the court to amend the pleadings at any stage of a trial, but leave to amend should be sought as early as possible after the need has arisen.

2. A court will allow pleadings to be amended only if the other party is not prejudiced.

3. In exercising its discretion, the court must act judicially.

4. The court should only allow pleadings to be amended at the end of the evidence, if the issues to be pleaded in the amendment have been aired at the hearing.

Cases Cited

Papua New Guinea case cited

New Guinea Co Ltd v Thomason [1975] PNGLR 454

Other cases cited

Baker v Medway [1958] WLR 1216.

Cropper v Smith (1884) 26 ChD 700.

Gordon v McGregor (1909) 8 CLR 316.

Counsel

P Kopunye, for the plaintiff.

A Kandakasi, for the defendant.

16 November 1993

WOODS J: At the end of the trial on a claim for damages for injuries received in a motor vehicle accident, the plaintiff sought to amend the statement of claim to support the real basis of the claim following the disclosure of certain facts during the trial and to bring the pleadings into line with the act under which the claim is made.

The claim by the plaintiff is brought under the Motor Vehicles (Third Party Insurance) Act Ch 295 s 54, which states:

" (1) Subject to subsection (2), any claim for damages in respect of the death or bodily injury to any person caused by, or arising out of the use of:

(a) a motor vehicle insured under this Act, or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established

shall be made against the Trust and not against the owner or driver of the motor vehicle...."

It is necessary to bring your claim within one of the above three categories with appropriate evidence. However, in this case, in the statement of claim, the plaintiff has said:

" (3) At all relevant times the Toyota Truck was owned by one Mathew Wasingo and was insured against liability under a third party policy of insurance, or uninsured, with or by the defendant under the said Motor Vehicles (Third Party Insurance) Act Ch 295."

The plaintiff has not particularized under which category in s 54 the claim is made. Further, at the close of the evidence it was quite apparent that the motor vehicle concerned was...