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McCrohan v Bechtel Pacific [1976] PGNC 42; [1976] PNGLR 355 (30 August 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 355 - Mary McCrohan v Bechtel Pacific Corporation Ltd and McKee of Panama SA Carrying on business under the Name or Style of Bechtel WKE 

[1976] PNGLR 355

N58

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MARY MCCROHAN

V

BECHTEL PACIFIC CORPORATION LTD

AND

MCKEE

Waigani

Saldanha J

24 August 1976

30 August 1976

PRACTICE AND PROCEDURE - Pleadings - Further and better particulars of defence - Principles applicable - Action under Law Reform (Miscellaneous Provisions) Act, 1962 - Defence of contributory negligence and volenti non fit injuria - Breach of duty.

Pleadings should supply sufficient particulars to ensure clarity and to prevent taking the other party by surprise at the trial. They should be precise so that the other side may know the exact point in dispute and be prepared with evidence at the trial.

Thorp v. Holdsworth [1876] UKLawRpCh 167; (1876) 3 Ch. D. 637 at p. 639; Spedding v. Fitzpatrick [1888] UKLawRpCh 86; (1888) 38 Ch. D. 410 at pp. 413, 414 and Pinson v. Lloyds and National Provincial Foreign Bank, Ltd., [1941] 2 K.B. 72 at p. 75; [1941] 2 All E.R. 636 at p. 638 followed.

In pleadings (be they statement of claim or defence) wherein it is alleged that there is a duty of care of which there has been a breach, the pleadings ought to state the facts, upon which the supposed duty is founded, and the duty to the plaintiff (or defendant) with which the other party is charged.

Gautret v. Egerton [1867] UKLawRpCP 30; (1867) L.R. 2 C.P. 371; West Rand Central Gold Mining Company v. The King [1905] UKLawRpKQB 116; [1905] 2 K.B. 391 at p. 400; and The Kanawha (1913) 108 L.T. 433 followed.

In proceedings under the Law Reform (Miscellaneous Provisions) Act, 1962 the plaintiff claimed damages for the death of her husband whilst a passenger in a motor vehicle, which the plaintiff in her statement of claim alleged was caused by the negligence of the defendant’s servant done in the course of his employment; the defendant, in his defence denied negligence and denied that the servant was driving the relevant motor vehicle in the course of his employment and attempted to set up an alternative defence of contributory negligence and/or volenti non fit injuria. On an application for further and better particulars of the defence:

Held

N1>(1)      the plaintiff was entitled to insist upon the defence being stated precisely;

N1>(2)      the defence, being unclear, possibly embarrassing and lacking in precision, the defendant must give the particulars sought or amend.

Summons

This was an application for further and better particulars of a defence delivered in an action under the Law Reform (Miscellaneous Provisions) Act, 1962.

Counsel

GJ Lay for the plaintiff (applicant)

GJ Cartledge for the defendant (respondent)

Cur. adv. vult.

30 August 1976

SALDANHA J:  This is an application for further and better particulars. The plaintiff sued the defendant on behalf of herself and her three infant children under the Law Reform (Miscellaneous Provisions) Act, 1962, claiming damages for the death of her husband.

In the statement of claim the plaintiff averred as follows. On the 9th August, 1971, at Kieta the deceased was a passenger in an 18-ton Coles Crane truck owned by the defendant and being driven by a servant of the defendant in the course of his employment. Owing to the negligence of the driver the truck went off the road and overturned killing the deceased. The plaintiff claims damages against the defendant on the ground that the defendant is vicariously liable for the negligent act of its servant done in the course of his employment. Alternatively the plaintiff relies upon the doctrine of res ipsa loquitur.

In the defence the defendant denies that the driver of the truck had been negligent, denies that the driver was acting in the course of his employment and denies that the plaintiff is entitled to rely upon the doctrine of res ipsa loquitur. In para. 7 the defendant puts up an alternative defence. I shall set out para. 7 in full because it is in respect of this part of the defence that the plaintiff seeks further and better particulars. It is in the following terms:

N2>“7.      In the alternative, in further answer to the whole of the statement of claim, the defendant says that the death of the deceased was caused solely by the negligence of the deceased, particulars whereof are as follows:

(a)      Failing to conduct himself as a reasonably prudent workman in that contrary to instructions he rode upon a certain motor vehicle, to wit an 18-ton Coles Crane Truck.

(b)      That he failed to keep any or any proper look-out.

(c)      That he failed to give proper instructions as to the control and use of the said vehicle.

(d)      That being fully aware of the capacity and condition of the roadway he did nevertheless fail to exercise the skill and care of a reasonably prudent workman in that he continued to ride upon the said motor vehicle knowing full well that the vehicle was travelling too close to the edge of a roadway.”

The plaintiff seeks further and better particulars as follows:

N2>“(a)    What were or what was the effect of the instructions contrary to which it is alleged the deceased JOHN GERALD McCROHAN acted.

N2>(b)      What lookout is it said the deceased was obliged to keep.

N2>(c)      What instructions is it said the deceased was obliged to give as to the control and use of the said vehicle.

N2>(d)      What are the facts upon which the defendants rely in averring that deceased was fully aware of the capacity and condition of the roadway.”

Mr. Cartledge, who appears for the defendant, contends that the alternative defence is one of contributory negligence and that para. 7 of the defence merely gives particulars of the contributory negligence alleged. It is not quite correct to say that the defence is one of contributory negligence because the defendant has denied negligence on its part and averred that “the death of the deceased was caused solely by the negligence of the deceased”. (Emphasis mine.)

The defendant admits that the deceased was a passenger in the vehicle. In para. 7 (a) the defendant alleges that the deceased rode on this vehicle contrary to instructions. Presumably it is implied that there was some kind of prohibition upon employees using trucks for purposes of transport. If this is what is alleged the plaintiff is entitled to know what form these instructions took. Were they contained in notices or placards stuck on walls, or in a letter circulated to all employees, or was there a warning given to the deceased by some person in authority on behalf of the employer prohibiting the deceased from riding on the defendant’s vehicles? The plaintiff is entitled to know so that the issues can be defined and narrowed and in order to prevent the plaintiff being taken by surprise at the trial.

Paragraph 7 (b) alleges that the deceased “failed to keep any or any proper look-out”. It is easy to see how the driver of a vehicle could be said to be negligent in failing to keep a proper look-out. Why is it alleged that the deceased, who was a passenger, failed to keep a proper look-out? In what way can a passenger be said to be negligent by failing to keep a proper look-out? Is it being suggested that at the moment of peril the deceased should have leapt out of the vehicle to avoid being killed? The plaintiff is entitled to know so that she can be on her guard, be adequately prepared to meet the defendant’s case and avoid being taken by surprise at the trial.

Paragraph 7 (c) alleges that the deceased “failed to give proper instructions as to the control and use of the said vehicle”. As the deceased was only a passenger in the vehicle, he was under no duty to give instructions to the driver. On the contrary one would have thought that he would be expected to mind his own business and let the driver get on with his own. If on the other hand the deceased was in the vehicle in some kind of supervisory capacity, if for instance he was in charge, so that the driver was bound to do as he was instructed by the deceased, it would have been necessary to state the relationship between the deceased and the driver which placed a duty upon the deceased to instruct the driver and a duty on the driver to obey. There is here quite clearly a suggestion that the deceased was under a duty to give proper instructions to the driver as to the control and use of the vehicle. The statement of claim “... ought to state the facts, upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged.” (per Willes J. in Gautret v. Egerton[cdxx]¹). The principle stated above is equally applicable to a defence wherein it is alleged that there is a duty to the defendant of which there has been a breach. Gautret v. Egerton[cdxxi]² was cited with approval by Lord Alverstone C.J. in West Rand Central Gold Mining Company v. The King[cdxxii]³ and in The Kanawha[cdxxiii]⁴.

It is possible that in para. 7 (d) the defendant is setting up the defence of volenti non fit injuria. If this is what is intended I fail to see what further and better particulars the defendant can be required to give apart from alleging, as the defendant has done implicitly, that the deceased fully appreciated the risks he was incurring and nevertheless acquiesced by allowing himself to be carried as a passenger. But if it is volenti that is being pleaded it should be done clearly and expressly and not left to be inferred, much less expressed as one of the particulars of negligence, as is done here. The plaintiff is entitled to insist upon the defence being stated precisely.

If the deceased was only a passenger in the vehicle, and, on the present state of the pleadings that is all he would appear to have been, the defendant will find it difficult to give further and better particulars sought of the allegations made in pars. 7 (b) and 7 (c), and impossible to give particulars of 7 (d) if it is really a defence of volenti but pleaded as a particular of negligence. But it is defendant’s own fault — the slipshod manner in which para. 7 has been drafted — that it finds itself in this predicament.

Perhaps the request for further and better particulars might have been more happily worded. I would have expected (d) to have been expressed in some such form as “What are the facts upon which the defendant relies for saying that the deceased failed to keep any or any proper look-out”; and (c) might have been expressed as “What are the facts upon which the defendant relies for saying that the deceased failed to give proper instructions as to the control and use of the said vehicle”.

The pleadings should supply sufficient particulars to ensure clarity and to prevent taking the other side by surprise at the trial. They should be precise so that the other side may know the exact point in dispute and be prepared with evidence at the trial: see Thorp v. Holdsworth[cdxxiv]⁵ at p. 639, per Jessel M.R.; Spedding v. Fitzpatrick[cdxxv]⁶ at pp. 413, 414 per Cotton L.J. The function of particulars is to put the opposite party on his guard and prevent him from being taken by surprise at the trial: see Pinson v. Lloyds and National Provincial Foreign Bank, Ltd.[cdxxvi]⁷.

Paragraph 7 of the defence is not clear, possibly embarrassing and it is lacking in precision. The defendant must give the particulars sought or amend its defence, failing which, it might find itself faced with an application by the plaintiff that para. 7 be struck out as being embarrassing.

Order accordingly.

Solicitors for the plaintiff: White, Reitano and Young.

Solicitors for the defendant: McCubbery Train Love & Thomas.

[cdxx](1867) L.R. 2 C.P. 371.

[cdxxi](1867) L.R. 2 C.P. 371.

[cdxxii][1905] UKLawRpKQB 116; [1905] 2 K.B. 391 at p. 400.

[cdxxiii](1913) 108 L.T. 433.

[cdxxiv] [1876] 2 Ch. D. 637 at p. 639.

[cdxxv][1888] UKLawRpCh 86; (1888) 38 Ch. D. 410 at pp. 413, 414.

[cdxxvi] [1941] 2 All E.R. 636 at p. 638; [1941] 2 K.B. 72 at p. 75 per Scott L.J.