Sidi Adevu v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Andrew J, Sakora J
• Judgment Date: 01 July 1994
• Citation: [1994] PNGLR 57
• Court: Supreme Court
• Year: 1994
• Judgement Number: SC461

Supreme Court: Kapi DCJ, Andrew J, Sakora J

Judgment Delivered: 1 July 1994

SC461

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA NO. 141 OF 1991

BETWEEN:

SIDI ADEVU

Appellant

AND:

MOTOR VEHICLE

INSURANCE (PNG)

TRUST

Respondent

WAIGANI : KAPI DCJ, ANDREW and SAKORA JJ

25TH APRIL, 1ST JULY, 1994

This is an appeal from a decision of the National Court in which the appellant's claim for damages as the result of injuries suffered in a motor vehicle accident was dismissed by the court on the ground that the Appellant had failed to prove liability on the balance of probabilities.

There are two preliminary applications filed; the first being a Notice of Objection to Competency filed by the Respondent and secondly an application by the Appellant to introduce fresh evidence.

1. OBJECTION TO COMPETENCY

The original Notice of Appeal was filed on the 4th December 1991 and Notice of Objection to competency was filed on the 11th December 1991.

Subsequently, on the 15th December 1991, the Appellant filed an amended Notice of Appeal. The original Notice of Objection was based on ORDER 7 RULE 9 of the Rules of the Supreme Court namely:

"ORDER 7 RULE 9.

Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law."

The amended Notice of Appeal raises two grounds which are objected to on the further basis that they raise only questions of fact and that no leave has been applied for as required by s.4 of the Supreme Court Act. Those grounds are as follows:-

"Ground 3 (b)- The trial Judge erred in his finding of fact that the defendant is or was not liable to the plaintiff in that the trial judge gave undue weight to the fact of lack of evidence of initial medical evidence."

Ground 3 (c)- The finding that the defendant was not liable was against the evidence or the weight of the evidence in that there was clear, strong and unchallenged evidence by the plaintiff and his witness one OIVI OMANE that the plaintiff was a passenger in a motor vehicle driven by OIVI OMANE which was involved in an accident on 10th of June 1989 and as a direct consequence of the accident the plaintiff received cuts to his face and eyes.

We are satisfied that the amended Notice of Appeal specifies with sufficient particularity the grounds relied upon to demonstrate that it is against the evidence and the weight of the evidence. A Notice of Appeal may be amended without leave by filing a supplementary notice before the date of appointment to settle the appeal book, ORDER 7 RULE 24 of the Rules of the Supreme Court. In this case that date of appointment was the 7th January 1992, so that the amended notice was within time. The question remains however whether leave was required as it is submitted that these additional grounds raise only questions of fact. If they raise questions of law or a question of mixed fact and law then leave is not required: s. 4 Supreme Court Act.

The issue of whether questions relate to fact or law or mixed law and fact is not as simple as it may appear. See DILLINHAM CORP of NEW GUINEA PTY. LTD -v- DIAZ (1975) P.N.G.L.R. 262 at 269 where the Supreme Court indicated that the difficulty that courts have in deciding such matters is revealed in numerous judgments and there cited the well known passage of Denning L.J. in British Launderes' Research Association -v- Central Middlesex Assessment Committee and Hendon Racing Authority (1949) 1 All E.R. 21, that:

"On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law than can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and so far as these conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts: . . . If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination by a trained lawyer — as for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer — the conclusion is a conclusion of law on which an appellate Tribunal is as competent to from an opinion as the Tribunal of the first instance."

The issue of whether Grounds 3 (b) and 3 (c) raise questions of fact alone or a question of mixed fact and law can only be determined upon a consideration of the whole case. Each case must be decided on its own merits. Here the issue of the lack of...