Motor Vehicles Insurance (PNG) Trust v Nand Waige, Wagbie Jack and Kawage Gedua [1995] PNGLR 202

• Jurisdiction: Papua New Guinea
• Judge: (dissenting)
• Judgment Date: 02 March 1995
• Court: Supreme Court
• Citation: [1995] PNGLR 202
• Year: 1995
• Judgement Number: SC478

Supreme Court: Woods J Jalina J, Sakora J

Judgment Delivered: 2 March 1995

SC478

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 121 of 1993

SCA 122 of 1993

SCA 123 of 1993

MOTOR VEHICLES INSURANCE (PNG) TRUST

Appellant

V

NAND WAIGE, WAGBIE JACK, KAWAGE GEDUA

Respondents

Waigani: Woods, Jalina, Sakora JJ

28 June 1994 — 2 March 1995

Practice and Procedure — Striking out Defence — Pleading the general issue.

Cases cited:

Adevu v MVIT [1994] Unreported SC461.

Akipa v Lowa [1990] PNGLR 502

Hornibrook Constructions P/L v Kawas Express Corp P/L

[1986] PNGLR 301

A Kandakasi for the Appellant.

E Styliano for the Respondents.

WOODS, J. & SAKORA, J.: These Appeals are against Orders of the National Court made in each case on the 15 September 1993 striking out the Appellant's Defences and ordering Judgement for the Plaintiffs with damages to be assessed.

Application was made to strike out the Respondent's Defences in each case on the basis that the Respondent had pleaded the general issue that being especially disallowed by National Court Rules Order 8 Rule 28:

"A party shall not plead the general issue."

The claims in these matters were claiming damages for personal injuries received by the plaintiffs in motor vehicle accidents. In each case the plaintiff had pleaded that the Appellant was liable by virtue of being the authorised insurer pursuant to Section 54 of the Motor Vehicles (Third Party Insurance) Act Ch 295. The plaintiffs pleaded that they were lawfully travelling as passengers in motor vehicles which were duly registered and because of the negligence of the driver of the subject motor vehicle there was an accident and the plaintiff thereby suffered injuries. In each claim the plaintiff referred to different aspects of the negligent driving of the driver.

In answer and as a defence to the statement of claim the Appellant had filed a defence which stated for example as in Appeal 121:

1. The defendant does not know and cannot admit paragraph 1 of the

Statement of Claim

2. The defendant does not admit paragraph 2 of the Statement of Claim.

3. The defendant denies paragraph 3 of the Statement of Claim.

4. The defendant denies paragraph 4 of the Statement of Claim.

5. The defendant denies paragraph 5 of the Statement of Claim and each

and every particular of negligence pleaded thereunder.

6. The defendant denies paragraph 6 of the Statement of Claim and each

and every particular pleaded thereunder.

7. In the premises the defendant says that the Plaintiff is not entitled to claim damages as pleaded, or at all.

So how is that pleading the general issue. Reference is made in the case Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 to the general issue. Kapi DCJ says that the purpose of Order 8 Rule 28 is to prohibit the defendant from making a general denial without specifically denying the facts or basis on 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.

We do not argue with that expression of the purpose of pleadings. And then in that case by applying those principles to the pleadings and in particular the defence pleaded it was clear that the defence did not attempt to set out clearly the issues. The defence in that case had merely said in 2. "The defendant does not admit the allegations contained in paragraphs 3 to 10 of the Statement of Claim". However the Statement of Claim in that case was pleading breaches of a contract and the statement of claim set out various aspects of that contract and the alleged breaches. The defence was therefore far too general when in an attempt to isolate the matters at issue it should have referred to each clause in the Statement of Claim and pleaded the defendant's situation in respect of each of the allegations starting of course with what the defendant had to say about the particular contract, thus do they recognise that there was some document called a contract or how do they dispute its very existence. However the broad "not admitting the allegations" was clearly too general when the court would need to know what was the defendant's position regarding the very existence of the contract, it did not state the facts upon which the conclusion is reached. Therefore the appellants defence in this case before us now is far different from the defence to a contract as pleaded in that Hornibrook case.

Note also that following the Hornibrook case Kapi DCJ, referred again to the 'general issue' in the case Akipa & Os v Lowa & Os [1990] PNGLR 502 and noted that Order 8 Rule 21 permits pleading a general denial of pleaded facts.

Order 8 Rule 21:

"A traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation."

In the Akipa case Kapi DCJ concluded as follows:

"I conclude from the cases I have referred to that pleading the general issue in defence is a plea which to use the words of Sugerman AP in the Rudenno case, 'merely state a conclusion from denials which are not stated'. For example in an action for goods bargained and sold or sold and delivered, the plea in defence must deny the order or contract, the delivery or the amount claimed. To plead that the defendant 'is not liable' or was 'never indebted' is a conclusion which does not state the facts upon which such a conclusion is reached. However, where the statement of claim pleads facts upon which the cause of action is based such as existence of an order or contract, the delivery or amount claimed in an action for goods bargained and sold or sold and delivered, a mere denial of these facts either generally or specifically is permissible under O 8, r 21(2) of the National Court Rules. Such a plea in my view does not offend O 8, r 28 of the Rules."

So what has the appellant pleaded in its defence. It has pleaded non-admission to some of the specific paragraphs. So what else can it do. Looking at each paragraph of the defence in turn.

1. Paragraph 1 of the Statement refers to who the plaintiff is, and of course the Trust does not know the defendant, and will not know him or her until he or she presents themselves in court to give evidence. Thus does not know and cannot admit is clearly proper and is as expected by order 8 Rule 21.

2. The statement of claims refers to the Trust as being the authorised insurer, and of course the Trust cannot admit that until it has been referred to the relevant policy number a fact which is only within the knowledge of the plaintiff or the driver or owner at the beginning of the case unless the case is being taken on the basis of non-insurance and non-registration which is not pleaded here.

3. This is where the bare facts of the accident is recited. Of course the Trust does not know that or is entitled to not admit that until the evidence of the actual accident is presented. To say that the Trust should also within the 2 weeks allowed for the filing of a defence do its own investigations and obtain the police accident report and then agree that an accident has happened is making the Trust do the plaintiff's work in double quick time and prejudge the whole of the evidence that should be presented to the court. A defendant has no obligation to prove a plaintiff's case. Always remember a defendant is going to be liable to the costs if it denies a plaintiff's claim unreasonably.

4. The plaintiff merely makes a general allegation that the vehicle that caused the injuries is registered and insured however the statement of claim makes no reference to a policy of insurance number or the relevant dates of such registration and insurance. And remember that without a valid insurance there can be no registration. So without any reference number how can the Trust do its own researches. So it is quite entitled to deny generally in the terms of Order 8 rule 21. The onus is always on the plaintiff to prove its case, not on a defendant to prove the plaintiff's case for it.

Of course if the plaintiff makes specific reference to a policy number then there would be an obligation on the Trust to specifically state in its defence what the status of that policy number was from its own records. But that is not the case here.

5. This alleges the negligence in the driver and sets out the different aspects of the negligence. To go any further than make a general denial of negligence the Trust would have to in effect plead the evidence and it clear rule of pleading that...