Jacob Simbuaken v Neville Egari and The Independent State of Papua New Guinea (2009) N3824

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 29 September 2009
• Citation: (2009) N3824
• Docket Number: WS NO. 512 OF 1994
• Year: 2009

Full Title: WS NO. 512 OF 1994; Jacob Simbuaken v Neville Egari and The Independent State of Papua New Guinea (2009) N3824

National Court: Davani J

Judgment Delivered: 29 September 2009

PLEADINGS—Statement of Claim—specific pleading of vicarious liability—specific pleading of s1(1) of the Wrongs (Miscellaneous) Provisions Act chapter 279—where plaintiff’s cause of action depends on statute, must plead all necessary facts to bring him within the statute.

EVIDENCE—Medical evidence—must be attached to affidavit of medical practitioner—s37 of Evidence Act chapter 4.

Facts

The matter proceeded to trial on assessment of damages where the plaintiff had obtained default judgment on a claim where he had allegedly been involved in a motor vehicle accident, whilst a passenger in a vehicle driven by an employee of the State.

Issues

1. Whether the Court can revisit the aspect of liability after the entry of default judgment?

2. Should the aspect of vicarious liability be properly pleaded by pleading the relevant legislative provision?

3. Whether the Court can accept or place any weight on evidence of a medical practitioner that is attached to the plaintiff’s affidavit and not his or her own affidavit?

Held

1. The Court found firstly that the plaintiff must specifically plead s1(1)(a) of the Wrongs (Miscellaneous) Provisions Act to establish the aspect of the State’s vicarious liability. The pleading of brief facts alone is insufficient.

2. That the Court can revisit the aspect of liability after the entry of default judgment where the Court finds that the statutory provision is not pleaded and where the assessment of damages will be a futile exercise.

3. That medical reports must be attached to the affidavit of the medical practitioner who prepared the report, and if not done, will be declared inadmissible. That in the event it is tendered into evidence, that the Court should not place any weight on it.

Cases Cited:

Papua New Guinea Cases

Yange Lagan v The State (1995) N1369; Ume More v UPNG [1985] PNGLR 401; The Independent State of Papua New Guinea v Kofowei [1987] PNGLR 5; Yange Lagan v The State (1995) N1369; Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337; Obed Lalip v Fred Sikiot (1996) N1457; Abel Tomba v The State (1997) SC518; Andale More v Henry Tokam (1997) N1645; Wama Kints v The State (2001) N2113; PNGBC v Jeff Tole (2002) SC694; Coecon Ltd v The National Fisheries Authority of PNG [2002] PNGLR 506; William Mel v Coleman Pakalia (2005) SC790; Jack Pinda v Sam Inguba, The Police Commissioner and the Independent State of Papua New Guinea (unreported, delivered on 28/5/09)

Overseas Cases

Lloyde v. West Midlands Gas Board [1971] 1WLR 749; Pawding v. London Brick Co. (1971) 4 K.I.R 207; Read v. Brown (1988) 22 Q.B.D 128; Subramaniam v. Public Prosecutor [1956] 1 WLR 965; Seear v. Lawson (1881) 16 Ch. D. 121; West Rand Co. v. Rex [1905] 2 K.B 399; Waghorn v. George Wimpey & Co. Ltd [1969] 1 W.L.R 1764;

Other References;

McGregor on Damages, (Sweet & Maxwell), 13th Ed, 1972, London

29th September, 2009

DECISION

1. DAVANI .J—This is a hearing on the assessment of damages for and on behalf of the plaintiff, default judgment having been obtained on 21st July, 2006.

Background

2. The Writ of Summons and Statement of Claim was filed on 15th July, 1994 by Andrew G Corren & Company Lawyers. In the Statement of Claim, the plaintiff claims damages as a result of a motor vehicle accident which occurred on or about 28th August, 1991. The plaintiff pleads that at that time, he was a passenger in a motor vehicle, registration no. ZGA-669 owned by the State. The vehicle was driven by the first defendant when he lost control and overturned near the Pausa High School section of the Highlands Highway in the Enga Province. The plaintiff claims to have sustained injuries as a result of the motor vehicle accident.

3. The particulars of injuries suffered were;

- an unsightly scar and disfigurement to his right forehead;

- 5 percent loss of efficiency of masticatory (chewing) function;

- Loss of two (2) front teeth (central incisors and lateral incisor).

4. The plaintiff pleads that he incurred medical and associated expenses, particulars of which he claimed would be provided prior to trial.

5. The plaintiff is represented by Dotaona Lawyers.

6. The first and second defendants are represented at this hearing by Mr Tanuvasa of the Solicitor-General’s Office.

Analysis of evidence and the law

7. The main issue before the Court is whether the plaintiff is entitled to the damages he claims, being;

- pain suffering and loss of amenities between K25,000.00 to K30,000.00;

- out-of-pocket expenses of K40,000.00;

- interest;

- costs.

8. In a trial on assessment of damages, the Court must be slow to making awards unless the damages claimed are properly proven. The National Court has emphasized this principle in many cases, one of which is Obed Lalip for himself and on behalf of Marae Kulap and Francis Minalo v. Fred Sikiot & The State (1996) N1457 where Injia .J (as he then was) said;

“Just because the plaintiff has obtained default judgment, does not mean that he is entitled as of right to receive damages. He must prove the damages suffered by credible evidence.”

9. And damages to be sought is only what is pleaded in the Statement of Claim. As was held in Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamuna Paul Piru, Powes Parkop and Members of the Students Representative Council and all those students now enrolled at the University of Papua New Guinea who have National...