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

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1995] PNGLR 202
• Date: 02 March 1995
• Year: 1995

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

Supreme Court: Woods J, Jalina J, Sakora J

Judgment Delivered: 2 March 1995

1 Practice and procedure—striking out defence—pleading the general issue

2 Sidi Adevu v MVIT [1994] PNGLR 57, Akipa v Lowa [1990] PNGLR 502, Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301, Kidanu v MVIT (1992) Unnumbered and unreported National Court judgment and Michael Newal Wilson v Harold Rosser Howard [1994] PNGLR 418 referred to

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Woods J and 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 Judgment 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 O8 r28:

"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 s54 of the Motor Vehicles (Third Party Insurance) Act (Ch295). 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 O8 r28 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 v Lowa [1990] PNGLR 502 and noted...