Motor Vehicles Insurance Limited v Kauna Kiangua (2015) SC1476

• Jurisdiction: Papua New Guinea
• Judge: Davani J, Kassman J, Logan J
• Judgment Date: 17 December 2015
• Citation: (2015) SC1476
• Docket Number: SCA NO. 92 OF 2012
• Court: Supreme Court
• Year: 2015
• Judgement Number: SC1476

Full Title: SCA NO. 92 OF 2012; Motor Vehicles Insurance Limited v Kauna Kiangua (2015) SC1476

Supreme Court: Davani J, Kassman J, Logan J

Judgment Delivered: 17 December 2015

SC1476

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA NO. 92 OF 2012

BETWEEN:

MOTOR VEHICLES INSURANCE LIMITED

Appellant

AND:

KAUNA KIANGUA

Respondent

Waigani: Davani J, Kassman J, Logan J

2013: 16th December

2015: ---17th December

DAMAGES – claim by appellant for damages in respect of husband’s death in motor vehicle accident – default judgment entered in respect of liability with damages to be assessed – no appeal against default judgment – later trial on assessment of damages – whether primary judge should have revisited default judgment before assessing damages – whether default judgment proceedings were statute barred under s 31 of the Wrongs (Miscellaneous Provisions) Act (Wrongs Act) – estoppel based on default judgment — per rem judicatum – whether damages correctly assessed -limitation of action legislation does not bar the right to a cause of action unless pleaded.

Held

(Davani J dissenting, except as to funeral expenses) not competent for appellant to raise issue concerning s 31 of the Wrongs Act – inconsistent with default judgment on liability – in any event s 31 no bar to the proceeding as no defence filed – statement of claim serves as proxy for default judgment in assessing damages – funeral expenses not pleaded in statement of claim – judgment below wrong in law to the limited extent it allowed for funeral expenses in assessment of damages - appeal otherwise dismissed with costs

Cases cited:

Papua New Guinea

Andale More v Henry Tokam (1977) N1645

Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853

Coecon Ltd (Receiver/Manager appointed) v National Fisheries Authority (2002) N2132

Cosmos Kutau Kitawal & Christopher Kutau v The State (2007) SC927

Curtain Brothers (PNG) Limited & Curtain Brothers (Qld) Pty Limited v University of Papua New Guinea (2005) SC788

Dempsey v Project Pacific Ltd [1985] PNGLR 93

Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705

Government of Papua New Guinea and Davis v Barker [1997] PNGLR 386

Gregory Tavatune v Dr. Novette, Christopher Pasmat, Danny Gre and Elias John Warivama v Henry Nagt Sapau (2013) N5319

Kapaware of Vanimo General Hospital (2012) N4611

Kapaware of Ivan Saun v Chief Inspector Hodges Ette (2005) N3031

Michael Pundari v Niolam Security (2011) SC1123

Motor Vehicles Insurance (PNG) Trust v John Etape [1994] PNGLR 596

MVIT v. James Pupune [1993] PNGLR 370

Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812

Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694

Sakaire Ambo v Motor Vehicles Insurance (PNG) Trust (2002) SC681

Sangasib v MVIT [1991] PNGLR 449

Tony David Raim v Simon Korua (2010) SC1062

Uma More v University of Papua New Guinea [1985] PNGLR 401

Van Der Kreek v Van Der Kreek [1979] PNGLR 185

Vanimo General Hospital (2012) N4611

William Mel v Colman Pakalia and others (2005) SC 790

Overseas case cited

Dianne McGrath Fingleton v The Queen [2005] HCA 34

House v the Queen (1936) 55 CLR 499

Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] A.C. 993

Lunun v Singh (Hajar), The Times, July 1999, [1999] CPLR 587

New Brunswick Railway Co v British & French Trust Corp Ltd [1939] AC 1

Ronex Properties Ltd v John Laing Construction Ltd and others [1983] QB 398

Symes v St Georges NHS Trust [2014] EWHC 2505 (QB); [2014] Med. L.R. 449 (QBD); (2014) 140 B.M.L.R. 171

Legislation cited:

Motor Vehicles (Third Party Insurance) Act c.295 Sections 54

Wrongs (Miscellaneous Provisions) Act c. 297 Sections 25, 26, 31 and 37(6)

Counsel:

K Peri, for the Appellant

L Manu and B Geita, for the Respondent

DECISION

17 December, 2015

1. DAVANI J: The appellant appeals against the National Court’s decision of 10th July 2012, where, in a hearing on assessment of damages, the appellant was ordered to pay the sum of K92, 180.13 in damages, to the respondent.

Background

2. The respondent was the plaintiff in National Court proceedings WS 597 of 2003 (H) filed in the National Court in Goroka on 12th May, 2003.

1) According to the Writ of Summons and Statement of Claim, (the ‘Writ’), copy of which is contained in the Appeal Book at pages 8 to 15, the respondent sought damages for the death of her husband who was allegedly killed in a motor vehicle accident on 10th March, 1997, which accident occurred on the Kerowagi to Kundiawa Road when one Bill Angua Waine, who was driving a Mitsuibishi Canter, registration No. 1AA 019 drove off the road and struck a pedestrian, Kiangua Poka (the ‘deceased’), who died instantly.

2) The Writ was filed on 12th May, 2003. On 22nd September, 2006, the National Court Goroka entered default judgment in the respondents favour and for damages to be assessed.

3) The hearing on assessment of damages was conducted on 23rd March, 2011 and a decision delivered on 10th July, 2012.

4) Damages were assessed and awards made as follows;

respondent - K21, 273.18

Jack (son) - K5,278.74

Emos Kiangua - K6,245.48

Tori Kiangua -` K6,865.84

Nuglai Kiangua - K6,664.11

Margaret Kiangua - K6,865.84

5) Funeral expenses were assessed at K1, 500.00.

6) Interest was assessed over a period of 3,344 days (12.05.03 to 10.7.12) at 8% upon the awards for each claimant, assessed at;

- respondent - K15, 591.78

- Jack Kiangua - K3, 868.95

- Emos Kiangua - K4, 577.50

- Tori Kiangua - K5, 032.19

- Nuglai Kiangua - K4,884.33

- Margaret Kiangua - K5,032.19

Default Judgment

7) Default Judgment was ordered on 22nd September, 2006 and entered on 28th September, 2006. The appeal depositions only contain the sealed orders for default judgment. It does not contain the depositions of the appearances before the Judge who granted the default judgment nor does it contain the transcripts of that hearing.

8) The relevance of those depositions and transcripts is discussed later below.

Grounds of Appeal

3. The Notice of Appeal filed by Warner Shand Lawyers on 9th August, 2012 pleads 8 grounds of appeal. Ground 3(a) is the only ground that is different in content to grounds 3(a) to (h), the final ground of appeal, but otherwise, all the grounds are basically in relation to the manner in which the trial Judge exercised his discretion. I summarise these grounds as follows:

1. That the trial Judge erred when he did not properly exercise his discretion by revisiting the entry of default judgment, particularly, when, upon a cursory glance, it is obvious that the matter is statute-barred pursuant to s. 31 of the Wrongs (Miscellaneous Provisions) Act Chapter 297 (the ‘Wrongs Act’).

2. That the trial Judge erred when he made findings on heads of damages not properly particularized and which are listed hereunder;

2.1 That the deceased was employed prior to his death and which aspect was not pleaded;

2.2 That it was not pleaded that the deceased was earning an income and that the actual weekly loss suffered by the respondent and the children was K135.00;

2.3 That the weekly loss purportedly suffered of K135.00 was excessive considering the deceased and the respondent are villagers, subsistence farmers and were not in formal employment.

2.4 That the period of dependency was not pleaded in the statement of claim;

2.5 Monies spent on funeral expenses was not pleaded and therefore, the award of K1, 500.00 was excessive and an error by the trial Judge.

4. The appellant asks that if the Court does find in its favour, that the following orders must be made by this court:

1. The appeal must be upheld;

2. The National Court’s decision of 10th July, 2012 in WS 599 of 2003 (H), be quashed;

3. That the National Court proceedings WS 597 of 2003 (H) be dismissed;

4. That the respondent pays the costs of this appeal and the National Court proceedings.

Analysis of the grounds of appeal

5. The respondent’s lawyer opposes the appeal and submits amongst others, that the appellant should not be pursuing this appeal because it did not show any interest in defending the proceedings in the National Court.

6. In response to this, the appellant submits that it was not aware the respondent was proceeding to default judgment and to the hearing on assessment of damages because it was not aware the respondent had filed court proceedings and further, that it had not received any court documentation from the respondent and had not received any notification of the court proceedings filed against it, from the respondent and her lawyers.

7. Based on the submissions by both lawyers, I note that the appeal before us raises serious issues in relation to the propriety of the pleadings in the National Court; the manner in which default judgement was entered and generally, the manner in which the trial Judge dealt with the matter. I summarise all the grounds of appeal under the two parts which are The Entry of Default Judgement...