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Yalao v Motor Vehicles Insurance (PNG) Trust [1995] PGNC 46; N1386 (8 December 1995)

Unreported National Court Decisions

N1386

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 922 OF 1991(H)
BETWEEN
JACK LUNDU YALAO - PLAINTIFF
AND
MOTOR VEHICLES INSURANCE (PNG) TRUST - DEFENDANT

Mount Hagen

Injia J
7 July 1995
7 October 1995
21 October 1995
27 October 1995
8 December 1995

PRACTICE AND PROCEDURE - Application to re-open trial at the end of trial and after written submissions on evidence filed - Discretion - Grounds for exercising discretion - Nature and importance of the evidence (sought to be introduced)to the issues in the trial.

PRACTICE AND PROCEDURE - Pleadings - Defence - Method of traversing fact alleged in Statement of Claim - Appropriateness of method - Whether defendant who knows or should know an alleged matter of mixed fact and law may plead non-admission due to lack of knowledge of that fact - Whether such pleading is inappropriate to the nature of the plaintiff’s pleadings, or discloses no reasonable defence, or causes unnecessary prejudice to the plaintiff or is an abuse of the court’s process - National Court Rules O 8 rr 21 (2), 27.

STATUTE - Claim for damages pursuant to Motor Vehicles (Third Party Insurance) Act Ch No 295 - Appropriateness of pleadings in the context of the nature and extent of Motor Vehicles Insurance (PNG) Trust’s liability for death or personal injury arising from insured, uninsured or unidentified motor vehicles discussed - Motor Vehicles (Third Party Insurance) Act Ch No 295, ss. 44, 50, 53, 54 (1), (6); 57 (1) (b), (c).

HELD:

(1) nate e anr importance of thof the evidence sought to be called upon re-opening the case to the material issue(s) in the trial is an important factor affecting tercisdiscr whetr note-open the case:

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ParaoParao Tunb Tunboro voro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 273 considered.

(2) ; Because the idsured statustatus of the motor vehicle which caused the injury to the plaintiff was known or ought to be known by the Defendant Trust from its own records and accounts required to be kept pursuant to s. 44, 49 and 53 of the Motor Vehicles (Third Party Insurance) Act Ch No 295, it was wrong for the defendant to plead in its defence that it did not know of and therefore could not admit the insured status of the subject motor vehicle as pleaded in the Statement of Claim. Such pleading was an inappropriate method of traversing the alleged fact; it did not disclose a reasonable defence; it caused prejudice to the plaintiff and may as well have constituted an abuse of the court’s process.

Motor Vehicles Insurance (PNG) Trust v Nande Waige & 2 Others, Unrep. SC478[1995].

Adevu v Motor Vehicles Insurance (PNG) Trust Unrep. SC461 [1994] both distinguished.

(3) One of the main purpose of the Motor Vehicles (Third Party Insurance) Act Ch No 295 being to set up a statutory scheme to compensate an injured person who has suffered damages as a result of the use insuotor le, or an uninsurinsured moed motor vtor vehicle driven on a public street or a motor vehicle whose identity in terms of registration, insurance, driver and ownership cannot be established after reasonable enquiry, the defendant Trust cannot, by pleading or otherwise, seek to exonerate itself from liability by insisting on strict proof of the insured status of the subject motor vehicle: the insured status of the subject motor vehicle being of little or no consequence to the Trust insofar as the Trust’s liability to the plaintiff is concerned.

(4) &#In the circumstances, the, the plaintiff is granted leave to re-open his case to call evidence from the defendant’s Claims Manager as to the insurance status of the subject motor vehicleh wastifie pleaded in d in the pthe plaintlaintiff’s Statement of Claim.

Cases Cited

Imambu Alo v Motor Vehicles Insurance (PNG) Trust Unrep. N1122

Bepiwan Ambon v Motor Vehicles Insurance (PNG) Trust Unrep. National Court Judgment Wabag 1992

Andreas Hara v Motor Vehicles Insurance (PNG) Trust Unrep. National Court Judgment Waigani 1994

Adevu v Motor Vehicles Insurance (PNG) Trust Unrep. SC461 [1994]

Motor Vehicles Insurance (PNG) Trust v Nande Waige & 2 Others Unrep. SC478 [1995]

Wenam Elkum & Another v State [1986] PNGLR 301

Counsel:

A Manase for the Plaintiff/Applicant

PW Smith for the Defendant/Respondent

RULING

8 December 1995

INJIA J: This is the plaintiff’s application to re-open the trial to allow the plaintiff to call fresh evidence as to the third-party insurance status of the subject motor vehicle whas involved in an accident at Panguna in 1987. If thef the applicati succ successful, the plaintiff intends to call the defenda217;s claims manager Mr Paur Paul Butler to give evidence and to produce documents relating to the subject motor vehicle identified aatsun 180B Reg. No AE1 997, 997, certificate of insurance No 57980.

The application has been made after the end of the trial and written submissions were already filed. It appears thatplaintiff diff discovered the need to call this evidence from the defendant’s submission in which the defendant denied liability on the basis inter-alia, that the plaintiff had failed toe the current third party irty insurance status of the subject motor vehicle.

At the trial, the plaintiff produced evidence from Mr Chris Passongo showing that he was the driver of a motor vehicle, a Datsun 120Y Reg. No ABU:331 in which the plaintiff was a passenger. On 5 Novembe7, he drove thve the vehicle on the Espie Highway in Bougainville and was heading towards Panguna when another vehicle which he identified as a Ds a Datsun 180B came from the opposite direction downhill, overtook another vehicle and collided into his motor vehicle thereby causing his vehicle to overturn and injuring him and the plaintiff. Mr Passond not identify thfy the insurance and registration number, driver and the owner of the Datsun 180B. This vehicle is howeventified in the plaintiff’s statement of claim (in para 3) as a Datsun 180B Reg. No AENo AEI 997 which was owned by Joe Simu anden by Salang Senge. And then in paragraph 4 of the Statement of Claim, it was alleged that that the vehicle was insured at the material time. The plaintiff&#82action waon was based solely on the negligent driving of the Datsun 180B and not of Mr Passongo’s motor vehicle. The defe, whilst admittingtting the registration and insurance of Mr Passongo’s vehicle (the Datsun 180Y) did not cross examine Msonassongo on the current registration and insurance of the Datsun 180B. The defendant also didcall call any evidence on these aspects.

The issue before me is whether or not I should allow the plaintiff to re-open ite in the circumstances outlined above. In order to decide this , sue, I need to deal deal with the circumstances which have gave rise to the defendant’s contention which has necessitated the plaintiff’s application. The defendant’sention principally stems frms from the nature of the pleadings, in particular the plaintiff’s pleading as to the insurance stat the subject vehicle (the Datsun 180B) in paragraph 4 of the statement of claim referred toed to above and the defendant’s defence. The defendant in its ce plce pleaded that it did not know and could not admit any part of the statement of claim including paragraph 4. Consequentlyre having been been no reply filed by the plaintiff, there was an automatic joinder on the issue, thereby forcing the plaintiff to prove the current insurance status of the subject vehicle as part of its general onus of proving his claim.

In its written submissions on the issue of liability, the defendant relied on Imambu Alo v MVIT (N1122), Bepiwan Ambon v MVIT Unrep. National Court decision given at Wabag in 1992 and Andreas Hara v MVIT Unrep. decision of National Court given on 19/9/94, to support its argument that the onus is on the plaintiff to strictly prove the existence of a current third-party insurance (and registration). That onus, it was submithad, had not been discharged by the plaintiff in this case, hence the claim should fail.

There are two Supreme Court cases which deal with pleadings of this kind. In the earlier cf AdeMVIT MVIT Unrep. SC461SC461 [1994]. The Supreme Court said:

“The sequence of events was that by its pleadingsDefendant required the Plaintiff to prove his case, because the Defendant did not know abou about the alleged circumstances of the act. The Plaintiff was was put on clear notice that his allegations were not believed by the defence and that they would need to be proved. The Defendant had s given iven notice that it did not know about the alleged circumstances of the case and that they would need to be proved.”

The above principle relate to the onus carried by the plaintiff to prove the general “circumstances” of the alleged accident. In the presese however, wer, we are concerned with a matter of not only mixed fact and law but primarily a matter of law and the application of the above principles depends on the threshold question of whrs the burden of proving thng the insurance status of the subject motor vehicle.

In MVIT v Nande Waige & 2 Others Unrep. SC478 [1995], the plaintiff, apart from pleading the alleged circumstances of the accident, specifically pleaded (in para. 4) that the subject motor vehicle, a white toyota PMV bus, Reg. No P5100, was at all material times insured against liability under a Third Party Policy of Insurance by the Defendant, pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act. In its defence, the defendant specifically denied this allegation. The Supreme Court heldajormajority decision that the defence as pleaded was proper and in accordance with 0 8 r 21 of the National Court Rules. The mty said:

&#822&#8220plaintiff merely makes a general allegation that the vehiclehicle that caused the injuries is registered and insured however the stat of claim makes no reference to a policy of insurance numbenumber or the relevant dates of such registration and insurance. Andmber that without a vala valid insurance there can be no registration. So without any referenceerumber how can the Trust d own researches. So it is quite entito deny deny generally in the terms of Order 8 ru 8 rule 21. Ths is always on thintiff tiff to prove its case, not on a defendant to prove the pthe plaintiff’s case for it. Of course i plaintiff make makes specieference to a policy number then there would be an obligatiigation on the Trust to specifically state in its defence what the status at policy number was from its own records. But that ihat is notcase hase here.”

The present case is clearly distinguishable from the above case in terms of the method of traverse adopted by the defendant in its defence. In the above cas relato pato para 4 of the the plaintiff’s Statement of Claim (which pleaded that the subject vehicle was insured at the materime) the defendant specifically denied this alleged fact whereas in the present case, the dthe defendant pleaded non-admission due to lack of knowledge of the alleged fact. The two methods oferse aree are not and do not mean the same thing. This is clear a close read reading of 0 8 r 21(2). Order 8 Rule 21 (2) provides that a “traverse may be either by a denial or by aementon-admission, and, and either expressly or by necessary implication and either generally orly or as to any particular allegation.” The defendant has onlydist distinct alternative methods of traversing an alleged fact: a denial or statement of non-admission. As to which method he s dets depends on the nature of the specific fact pleaded in the Statement of Claim. For instant would be consiconsidered appropriate for a defendant to deny a fact relating to the circumstances of an alleged event or pleadadmission owing to want of knowledge because the defendant may not or would not be expectedected to know the circumstances of the accident whereas the plaintiff would be in a position to know those facts. But it would be wrr inapprnappropriate for the defendant to plead non-admission owing to lack of knowledge in relation to an alleged matter of mixed fact and law or a matter of lone which fact the defendant should or ought to know and whnd which matter the plaintiff may not be reasonably expected to know. This is invariably true where the defendant is a public statutory corporation such as the Motor Vehicles Insurance (PNG) Trust which is required by law to keep a system of records and accounts in respect of the insurance status of all motor vehicles in Papua New Guinea, whether they be insured (and registered) or not and from which information the Trust should or ought to know the insurance status of the vehicle. Its task would be made far easier when the motor vehicle’s make, model, registration number, owner and driver are specifically pleaded in the statement of claim.

To demonstrate this point, let me briefly go gh the scheme of the Motor otor Vehicle (Third Party Insurance) Act Ch No 25. One of the main pes of thef the Act is inter-alia, to establish a statutory scheme to provide a compulsory insurance cover for third parties whose death or personal injury may bsed by or arises out of the use of a motor vehicle in a wida wide variety of situations. The Trust may be held liable not only for a motor vehicle which is insured by its owner under the Act but also for an uninsured motor vehicle which is driven on a public street or in respect of a motor vehicle, either insured or uninsured, whose identity cannot be ascertained after due inquiry: s. 54 (1). Under the Act, the r or thor the owner of the vehiannot be sued - a - a claim can only be brought against the Trust: s. 54 (1). Where the identi a motor vtor vehicle driven on a public road which caused the death or personal injury is lished, whether or not the the vehicle was currently insured and registered and the particular identity of the driver or owner is of little or no consequence to the Trust insofar as its liability to an injured third party who makes out a cause of action in negligence is concerned. Likewise iability of a para particular driver or owner of the vehicle to the Trust is of no concern to the plaintiff (apart from the plaintiff establishing negligence on the part of the driver or owner).

Another related purpose of the Act is that the Act establishes a system of compulsory and concurrent registration and insurance of all motor vehicles in the country (s. 50) in a systematic and regulatory manner. Ivides for a system of issf issue of insurance cover or certificate of insurance upon payment of the prescribed premium: s. 49. quires the Trust to keep peep proper records and accounts ih form as approved by the Ithe Insurance Commissioner: s. 44. In thet of a motor vehiclehicle accident resulting in death or boinjury, it requires the owne owner or driver to notify the Trust of, inter alia, the full circumstances of the accident. It is minalnce not to do s do so:o so: s. 53. The Act goes to the extent of protecting confidentiality of such information by making information not available for discovery in any legal proceedings: s. 53 (3). Further,ther, the Act pes ides for a system of reqg an injured person, etc totc to give notice of the claim within 6 months of the accident: s. 54 (6). The notice would no doubte the particulars of the subject motor vehicle, the relevanlevant circumstances of the accident and the nature of the injury sustaine60; No action for damages can be instituted in court without the pre-requisite notice beingbeing given. All these and other prons ions exist to ensure that the Trust keeps an accurate record or account of its insurance scheme and to ensure that the Trust equately informed in advance of the nature of the impending claim. All these provisiovisions accord with ordinary business practices and customs of the insurance industry.

In the light of these statutory provisions in particular ss. 44, 53 and 54 (e Trust should know or ought to know the insurance status otus of the motor vehicle whose make and model, registration number, driver and owner is particularised in the plaintiff’s statement of claim. It would be wroninappropriropriate for the Trust to say, by pleading or otherwise, “Oh! We don’t know whether or not the motor vehicle, Datsun 180B Reg. No A1E 997,d by Joe Simu and driven by Salang Senge on the Espie HighwHighway on 5 November 1987 was insured. We cannot admit it. You pro.” It should ould not come as a surprise to the Trust now that the plaintiff has identified the insurance certificateer, N80, for this very same vehicle. The defendant’s defence therefore as e as pleadpleaded in its defence discloses no reasonable defence, it is an inappropriate method of traversing the fact alleged in para. 4 of the plaintiff’s statement of clai causes unnecessary prejudiejudice to the plaintiff and it may as well constitute an abuse of the court’s process: Order 8 Rule 27. I would also think thch a ch a pleading is inappropriate to the nature of the plaintiff’s cause of action under the Act. This court has wide dtion tion to strike out such pleadings at any stage of the proceedings on its own initiative: Order 8 Rule 27. For reasons I haven, I strI strike out the defendant’s defence insofar as it relates to para. 4 of the statement of claim. Consequently, o reject thot those part of the defendant’s written submissions which relate to the issue of insurance.

In arriving at this decision, I have had regard to the general principles enunciated in various cases by this court and the Supreme Court in relation to the onus and standard of proof borne by the plaintiff in civil cases generally and I accept them. I also agree wie general pral principle that a plaintiff cannot succeed in his claim under the Motor Vehicles (Third Party Insurance) Act unless he brings himself within the provisions of the Act - by his pleadings and by the evidence he produces in support of the pleadings. At the same time however, we must not be so pre-occupied with the strictures of civil procedures relating to pleadings and evidence that we loose sight of the purposes of the Act, some which I have outlined above, and urpose of pleadings. Pleadileadings must be appropriate, meaningful and designed to achieve substantial justice according to the purpose of Act. I cannot put i clearer thar than how Brunton AJ put it in Wenam Elkum & Another v The State [1988-89] PNGLR 662 at p.665 said:

“In such circumstances, not to admit facts which could reasonably be admitted, or to deny facts which could reasonably have been admitted, is an abuse of the court’s process. One can reiterate the word words of the Deputy Chief Justice in Hornibrook Constructions, at 302:

‘The purpose of pleading is to set out clearly the issues only to inform the other party but the court as well.̵’

This principle should be observed both in its letter and its spirit. Pleadings are noices whichwhich those with long pockets can manipulate and gain unfair advantages over their adversaries. To do so is to abuse rocesrocess of the court...”

Returning now to the main issue, it is clear to me that the evidence proposed to be called if the case were to be re-opened is evidence which the plaintiff is not reasonably expected to know. It is evidence which efendefendant as a public statutory institution is required by law to possess and is not only a matter of mixed fact and law but primarily a matter of law. The of introducing this evis evidence has been inappropriately shifted to the plaintiff by the defendant’s pleadings. It is also evidence which the defendant could have produced if it thouge evidence was vital for itor its defence. In any case, it is ece whie which is of little or no consequence to the defendant’s liability to the injured plaintiff under the Act. I am ind to grant the appl application.

I note that both cos made submissions based oned on the six-seven tests set out by McDermott J in Parao Tunboro v MVIT [1984] PNGLR 273. There was dispetween counscounsels aels as to whether the plaintiff/applicant must meet all six-seven tests or whether it is sufficient for thintiff/applicant to meet just one or some of them. My view is tis Honour neve never iver intended that these tests should be applied severally or conjunctively. Nor did His Honour purport to exhaustively set out the tests. He was merely ng out some relevant factoractors which the court needs to consider in deciding the issue. For my part, I thin the sihe six-sevsts ttogetnderlieerlie one one basic factor: the nature and importance to the parties of the evidencidence sought to be led if the case were tre-opened. I find this factor tthe ovhe over-riding cing consideration and that is the basis of my ruling today.

Costs of this application shall be in the cause.

Lawyer for the Plaintiff/Applicant: Pato Lawyers

Lawyer for the Defendant/Respondent: Young & Williams