Sidi Adevu v MVIT

• Jurisdiction: Papua New Guinea
• Citation: [1994] PNGLR 57
• Date: 01 July 1994
• Court: Supreme Court
• Year: 1994

Supreme Court: Kapi DCJ, Andrew J, Sakora J

Judgment Delivered: 1 July 1994

1 Appeal—practice and procedure—leave to amend—not required if additional grounds raise questions of law or mixed fact and law—s4 Supreme Court Act—can only be determined by consideration of the whole case

2 Evidence—fresh evidence—medical report in possession 2 years before trial—not fresh—report made 4 months after accident unlikely to have any bearing on whether injuries suffered in that accident

3 Evidence—credibility—by its pleadings, defendant gave notice that it did not know of alleged circumstances—onus on plaintiff to prove case on the balance of probabilities—rule in Browne v Dunn (1893) 6 R 67 (HL) inapplicable

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By the Court: 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 O7 r9 of the Supreme Court Rules namely:

"O7 R9.

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 s4 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...