MVIT v James Pupune

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Jalina J, Doherty J
• Judgment Date: 14 December 1993
• Citation: [1993] PNGLR 370
• Court: Supreme Court
• Year: 1993
• Judgement Number: SC452

Supreme Court: Kapi DCJ, Jalina J, Doherty J

Judgment Delivered: 14 December 1993

SC452

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA N0. 3 OF 1992

BETWEEN:

MOTOR VEHICLES INSURANCE (PNG) TRUST

Appellant

AND:

JAMES PUPUNE

Respondent

Coram : KAPI DCJ, JALINA J, DOHERTY J.

24 August, 14 December 1993

Pleading — Particulars of damage — Function — Personal injury.

Supreme Court — Evidence — Evidence led by the Plaintiff at trial to which

defendant could have objected because facts not pleaded — Evidence led

without objection — whether the Court can take evidence into account.

Damages — Personal injury — Amount of damages — Minor brain injury — Loss

of learning capacity — Method of calculation.

Held: (1) Where evidence is admitted without objection to

economic loss which is not pleaded, the defendant cannot on

appeal hark back to the pleadings and submit that economic

loss was not pleaded.

(2) Loss of earning capacity may be based on the earnings

of the plaintiff at the time of the injury.

(3) That the trial judge erred in not taking into account

failure on the part of the plaintiff to mitigate his damages.

Cases cited:

Dempsey v. Project Pacific Ltd [1985] PNGLR 93

Domsalla v. Barr [1969]

Dore v. Pulhain (1981-82) 148 CLR 658

Gould v Burbeck and Bacon (1916) 22 CLR 490

Coaty v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 55

Moeliker v Reyrdley & Co Ltd [1977] 1 ALL ER 9

Lewis v. The Independent State of Papua New Guinea [1980] PNGLR 219

Pose v The Independent State of Papua New Guinea [1981] PNGLR 556

Sapa Landao v The Independent State of Papua New Guinea [1988] PNGLR 299.

P. Smith for the Appellant

P. Payne for the Respondent

14 December 1993

BY THE COURT:

The respondent sued for damages for personal injuries received in a motor vehicle accident on the Highlands Highway on the 2nd July 1988. Liability was disputed and the matter went to trial. The trial judge found judgement in favour of the respondent and further found that there was no contributory negligence on the part of the respondent.

The respondent suffered from a concussion, a fractured base of skull and laceration of the forehead. He was in a coma for several hours, bleeding from the left ear proptosis of the left eye. The bleeding and bulging of the eye was due to the build up of leaking fluids inside the skull. A facial nerve was permanently damaged and he lost the use of facial muscles on the left side of the face and his mouth has a slur. The doctors report states:

"Ten months after the accident he claims to have frequent headache, defective memory and defective consideration which are not uncommon in post head injury persons. Besides that he was found to have persistent left facial nerve paralysis, excessive laceration from the left eye and the forehead scar which he refused plastic surgery.

Therefore he has a slight chance of recovering from the other complaints but facial nerve paralysis is permanent. He has lost 100% of the effective use of his left face and about 50% of the general efficiency."

The Court assessed the damages as follows:

"GENERAL DAMAGES K25,000

INTEREST AT 8% FROM SERVICE

OF THE WRIT (JANUARY 1991) TO THE

DATE OF TRIAL 1,500

LOSS OF EARNING CAPACITY 51, 600

INTEREST AT 8% ON PRE-JUDGEMENT

ECONOMIC LOSS FROM JULY 1988 TO

DATE TRIAL 13, 416

K91, 516"

The appellant appealed against the whole of the judgement. However, in a supplementary notice of appeal the appellant abandoned the grounds relating to liability and confined the grounds of appeal to assessment of damages as follows:

"3.

(a) As the Plaintiff had not set forth in his Statement of Claim details of each item of special damages claimed, including wages and other economic losses, both present and future, as required by O 8, r 33 (1) the learned trial judge erred in making any award for either -

(i) economics loss to date of trial; or

(ii) economic loss in the future,

(b) In the alternative, having found that the plaintiff's real loss was his future economic loss, the learned trial judge erred in -

(i) including in his award for loss of earning capacity a component for pre-judgement economic loss from the date of the accident to the date of trial;

(ii) awarding interest on that component for pre-judgement economic loss from the date of the accident to the date of trial;

(iii) finding that a proper sum for future economic loss was K60,000 as that figure was manifestly excessive;

(iv) in reducing the sum for future economic loss by only 14% to take into account the contingencies of life;

(c) The award of K25,000 for general damages is manifestly excessive.

(d) His Honour erred in awarding future economic loss in reliance on evidence which he had not accepted."

At the hearing of the appeal, the parties agreed to the following propositions:

1. That the trial judge erred in awarding an interest at 8% on pre-judgement economic loss from July 1988 to the date of trial.

2. That there was no finding by the trial judge of any past economic loss.

3. That the award by the trial judge in relation to loss of earning capacity does not include any past economic loss.

The result of this concession is that the appeal is allowed in respect of grounds 3(b) (i) and (ii). The appeal proceeded on the balance of the grounds of appeal.

The Requirements of Pleading under Order 8 Rule 33(1) (Ground 3(a)).

Order 8 r 33(1)(g) is as follows:

" 33. Particulars to be given in death or personal injuries cases.

(1) Where a claim is made by the plaintiff for damages for breach of duty, and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person the statement of claim endorsed on the writ of summons shall set forth full particulars of the claim, including-

..........

(b) a statement in summary form, of the material facts relied on as giving rise to the cause of action.
..........

(g) details of each item of special damages claimed, including wages and other economic loss, both present and future; and

........"

Counsel for the appellant in essence submitted that the rule provides for a complete code of pleadings with regard to claims for damages in respect of personal injuries and it is essential to plead all material facts which gives rise to a claim ( O 8, r 33(1) (b)). It is further submitted that economic loss is akin to special damages which must be pleaded in order to be recovered ( O 8, r 33(1)(g)). Counsel for the appellant submitted that the respondent did not plead any economic loss, therefore, the trial judge erred in awarding a figure for economic loss.

Counsel for the respondent submitted that the appellant is not entitled to raise this on appeal as counsel for the appellant did not object to the evidence on matters that were not pleaded and he further submitted that counsel for the appellant allowed the issue of economic loss to proceed and contested the issue on it's merits at the trial.

Can the appellant raise this issue on appeal? Counsel for the appellant relied on Dempsey -v- Project Pacific Ltd [1985] PNGLR 93 as supporting the proposition that an appellant may raise and succeed on a major point which was not raised before the National Court. That was a case in which an application to set aside a judgement was refused by the trial judge. On appeal to the Supreme Court, the appellant raised a new matter for the first time on the question of whether the claim was properly for a "liquidated demand". Counsel for the respondent in that case did not raise any objection to the new matter raised on appeal and the appeal was decided on the new matter. This case can give very little assistance on the issue at hand.

The issue raised in this case is somewhat similar to Domsalla -v- Barr [1969] 3 All E R 487. In that case it was held that it was necessary to plead any special circumstances which will probably lead the plaintiff to sustain in the future losses over and above those which in the ordinary way would reasonably be expected to flow from the accident. Edmund Davies, LJ at page 493 said:

"By adverting to the plaintiff's intention to set up in business on his own account, there was been introduced into the case an entirely new element which had received no adumbration at all in the statement of claim. For that reason, in my judgement, the plaintiff was going outside his pleading, and objection might properly have been taken to the leading of such evidence. The objection, however, was not made, and accordingly it is not right, in my judgement, for this court to say now it will not have regard to such evidence as was called in support of this new, unpleaded matter;.."

(Emphasis added)

It is well established that pleadings and particulars have the following functions:-

(a) they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it.

(b) they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial.

(c) they give a defendant an...