Kora Gene v Motor Vehicles Insurance (PNG) Trust (MVIT)

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 23 May 1994
• Court: National Court
• Judgement Number: N1224

National Court: Woods J

Judgment Delivered: 23 May 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KORA GENE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

18 April 1994

23 May 1994

PRACTICE & PROCEDURE — Pleadings — Issues of law — All available issues of law should arise on pleadings — Discretion of court.

NEGLIGENCE — Motor vehicle injuries claim — Deed of release — Enforceability — Parties not on equal footing — Avoidance of agreement — Circumstances of PNG — Uneducated villager — Deed limited to solatium.

Facts

In a claim for damages arising from the death of his daughter in a motor vehicle accident, the defendant pleaded the existence of a deed of release under which the plaintiff released and discharged the deendan tfrom all actions arising out of the death. No reply to the defence was filed and served. The plaintiff sought a preliminary hearing on the issue of the deed of release.

Held

1. The plaintiff had indicated well in advance of the trial that the existence of the deed was an issue that required resolution. In those circumstances, the defendant could not be said to have been taken by surprise. The plaintiff had, in effect, informally complied with the pleading rules by his conduct. Accordingly, the failure to file a reply did not prevent the plaintiff disputing the dee dof the release.

2. Having regard to the fact that th edeed had been signed by thumb print by an illiterate villager in the absence of his legal advisers and that the defendant had knowledge of the existence of those advisers at the time the deed was signed, the parties were not on an equal footing. Accordingly, the deed did not bar the plaintiff from proceeding with the cliam and the matter would proceed to trial.

Cases cited

Re Robinsons Settlement Gant v Hobbs [1912] 1 Ch 717.

Vian Guatal v The State [1981] PNGLR 230.

Counsel

D. O'Connor, for the plaintiff.

A. Kandakasi, for the defendant.

23 May 1994

WOODS J: This is claim by a father for damages for the loss of a daughter Erekina Karo who is alleged to have died through the negligent driving of two vehicles which collided in Goroka on 3 June 1989.

It is alleged that the daughter was a passenger in one of the vehicles.

The defendant has denied liability and in its defence has referred to a Deed of Release executed by the plaintiff on 16 November 1989. Whereby the plaintiff released and discharged the defendant from all actions claims or demands arising out of or in respect of the death of Erekina Kora in a Motor Vehicle accident on 3 June 1989.

The plaintiff did not file a reply to this defence but instead set the matter down for trial. When a date for trial was sought the plaintiff raised the issue of this Deed of Release and sought a preliminary hearing on this matter. So this comes before me for argument on the effect of the Deed of Release.

Certain documents were put before me in evidence for the purpose of this preliminary argument namely:

1) A Deed of Release executed on 16 November 1989.

2) A statutory declaration by the plaintiff declared at Port Moresby on t16 November 1989.

3) A letter dated 16 October 1989 from the plaintiff's Lawyer to the defendant.

4) A letter dated 1 November 1989 from the defendant to the plaintiff's lawyer.

The defendant has submitted before me that the plaintiff cannot raise arguments against the effect of the Deed of Release because he has not pleaded the issue in a Reply to the Defence. The defendant here refers to the rules of the...