Boi Kawage v Motor Vehicle Insurance Trust Limited (2010) SC1066

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 30 April 2010
• Citation: (2010) SC1066
• Docket Number: SCA. No. 36 of 2008
• Year: 2010

Full Title: SCA. No. 36 of 2008; Boi Kawage v Motor Vehicle Insurance Trust Limited (2010) SC1066

Supreme Court: Kirriwom, Davani & Kariko JJ

Judgment Delivered: 30 April 2010

APPEAL—damages—personal injuries claim—deed of release signed only by the plaintiff—defendant withdrawing its offer to settle - appeal against dismissal of application for enforcement of deed of release—appeal against dismissal of whole of proceedings—whether application for enforcement properly before the court- whether deed of release compromised the whole of the proceedings—failure to ask counsel to address an issue not part of application not a miscarriage of justice.

Cases cited:

Papua New Guinea cases

Vailala Purari Investment Ltd v Papua New Guinea Forest Authority (2004) N2594; NCDC v Yama Security Services Pty Ltd [2003] PNGLR 1; Caltex (Overseas) Ltd v Douglas Charles Dent [1978] PNGLR 411

Overseas cases

Green v Rozen and Others [1955] 2 All ER 797

30 April, 2010

1. BY THE COURT: This is an appeal against the decision of the National Court on 29 April 2008 at Mount Hagen in the proceedings W.S. No. 120 of 2004 (“the Proceedings”) whereby the trial judge dismissed the Proceedings.

Background

2. The Appellant filed the Proceedings on 17 February 2004 claiming damages against the Respondent for personal injuries sustained in a motor vehicle accident on 7th September 2001 along the Okuk Highway between Goroka and Asaro in the Eastern Highlands Province.

3. The Appellant alleged receiving injuries to his head, hands and hip as a result of the accident.

4. On 16 August 2005 and after a request by the Respondent, the Appellant attended the Marian Medical Clinic for a review.

5. Negotiations to settle the claim out of court continued and there was exchange of correspondence between the parties, which included the following:

- On 13 April 2006, the Respondent offered K60,000.00 to the Appellant.

- On 11 May 2006, the Appellant counter-offered K90,000.00 to settle.

- On 20 April 2007, the Appellant followed up on the counter-offer of 11 May 2006.

- On 23 April 2007, the Respondent then replied with its counter-offer of K80,000.00 all up settlement.

- On 9 May 2007, the Appellant accepted the counter-offer but requested that K2,500 in costs be included and requested the appropriate deed of release.

- A deed of release to settle the claim for K80,000.00 in damages and K2,500 costs was prepared by the Respondent (“the Deed”) and sent to the Appellant on 18 May 2007.

- The Deed was executed by the Appellant and faxed back to the Respondent on 1 June 2007.

- The same day, 1 June 2007, the Respondent advised the Appellant that the Deed was rescinded or withdrawn on the basis that the amount offered ought to have read K8,000.00.

6. While the Appellant insisted that there had been an agreement to settle the claim by way of the signed Deed, the Respondent ignored the claim...