MVIT v John Etape

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Brown J, Konilio J
• Judgment Date: 01 July 1994
• Citation: [1994] PNGLR 596
• Court: Supreme Court
• Year: 1994
• Judgement Number: SC460

Supreme Court: Kapi DCJ, Brown J, Konilio J

Judgment Delivered: 1 July 1994

SCA 460

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA NO. 80 OF 1992

MOTOR VEHICLES INSURANCE (PNG) TRUST

-Appellant-

-V-

JOHN ETAPE

-Respondent-

Waigani : Sir Mari Kapi, DCJ, Brown & Konilio JJ.

1994 : 26 April

01 July

REASONS FOR DECISION

Ms A. Kandakasi, for the Appellant

Mr O'Connor, for the Respondent

BY THE COURT.: This is an appeal from the judgment of Woods J in the National Court given at Mount Hagen on the 1 June 1992 where the plaintiff succeeded in a damages claim for personal injuries and other financial loss suffered as a result of a motor vehicle accident. The appeal relates to both matters of fact and law and where necessary leave is granted to pursue the appeal in relation to the factual matters for the reasons which will become apparent.

The plaintiff says that the trial Judge erred in law by allowing evidence to be given by the plaintiff in respect of economic loss when it had not been pleaded in the statement of claim. Further the trial Judge erred in law in finding an award of K51,000 on the basis of the evidence led in relation to such economic loss. The factual matters which the appellant criticises relate to the trial Judge's finding that the plaintiff was unable to work at all for over 14 months from the date of the accident on the 4 June 1989 so that the award of K8,178.00 for past salary loss was erroneous and further the award of K2,494.80 relating to lost housing benefits was also unsubstantiated on the evidence. The appellant accordingly sought orders sitting aside the judgment in the total amount of K91,553.53 and asked that this Court substitute a judgment in an amount of K30,330.73 which represents the general damages and specific out of pocket expenses.

The appellant points to the statement of claim, the original pleading, as the document which fences the extent of the plaintiff's claim for damages. In that document the plaintiff claimed general damages and particularised the injuries and disabilities alleged. The plaintiff went on to claim special damages "particulars of which would be provided prior to trial". Para 8 of the statement of the claim was to the following effect -

"8. By reason of the driver's negligence the plaintiff alleges that he has suffered and will continue to suffer loss of enjoyment of life, pain and suffering, loss of amenities of life, continuing disabilities and loss of income earning capacity that he will incur the cost of further hospital and other related treatment".

Putting aside the allegations which relate to his claim for general damages, the appellant says the plaintiff has failed to plead with any particularity, a claim for past or future wage loss, a claim for loss of housing entitlements or a claim for the economic consequences of his alleged loss of earning capacity. As a consequence the trial Judge had erred in law by entertaining such a claim at the hearing and allowing evidence in that respect

The appellant's argument was that the deficiency in pleading, contrary to the mandatory requirements of O 8 r 33(1)(b) & (c) of the National Court Rules, effectively precluded the trial Judge from an award in relation to these alleged financial losses. Where there is no pleadings covering special damages of this nature, Mr Kandakasi for the appellant says that there can be no award, even if there is some evidence on point.

The appellant quite rightly points out that there has been a complete failure on the part of the plaintiff to comply with the requirements of O 8 r.33, more particularly that no material facts were stated on which the plaintiff sought to rely giving rise to the alleged loss of income earning capacity. No particulars, whether of wage loss, housing entitlements, or anticipated wage loss were provided. With those submissions we must aggree for clearly, on the statement of claim, there is an absence of facts or particulars.

O'Leary AJ whilst dealing with the New South Wales Supreme Court Rules (which correspond with the rules of the National Court) said in Principles of Practice and Procedure (Butterworths 1976) at 10.307 "besides requiring that certain matters be pleaded specifically, the rules also contain a number of provisions which require a party to furnish in or with his pleadings, particulars of his claim or defence or other matter pleaded. The function of particulars is "to let (a party) know what case he will have to meet and to enable him to know what evidence he ought to be prepared with". The object is "to ensure as far as is practicable, that proceedings between parties would result in a determination of the rights of the parties according to law and to limit if not eradicate the number of cases in which technologies can cause the proceedings to miscarry. Generally speaking justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other". Philliponi -v- Leithead (1958) 76 W.N.(NSW) 150.

Particulars are in fact an extension of the pleadings — they control the generality of the pleadings. In Pilato -v- Metropolitan Water Sewerage and Drainange Board (1959) 76 W.N. (NSW) 364, McClemens J said at 365 -

"Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led...