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Simbuaken v Egari [2009] PGNC 254; N3824 (29 September 2009)

N3824

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO. 512 OF 1994

BETWEEN:

JACOB SIMBUAKEN
Plaintiff

AND:

NEVILLE EGARI
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Davani .J
2009: 27th, 28th July
29th September

PLEADINGS – Statement of Claim – specific pleading of vicarious liability – specific pleading of s.1(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 – s.37 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 s.1(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

Het Pakena v. The State and Ors N1369
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 Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401
The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR 5
Yange Lagan & 58 Ors v. The State, WS 419 of 1995
Keith Reid v. Murray Hallam and Allcad Pty Ltd (1995) N1337
Obed Lalip for himself and on behalf of Marae Kulap and Francis Minalo v. Fred Sikiot & The State (1996) N1457
Abel Tomba v. The Independent State of Papua New Guinea (1997) SC518
Andale More and Manis Andale v. Henry Tokam and The State (1997) N1645
Wama Kints & 3 Ors v. Senior Constable Pius Kundi, Sergeant Vonomo Makis, Commissioner for Police & The Independent State of Papua New Guinea (2001) PGNC 88 N2113
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC692
Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002), National Court, N2182
William Mel v. Coleman Pakalia & Ors (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 [1888] UKLawRpKQB 186; (1988) 22 Q.B.D 128
Subramaniam v. Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965
Seear v. Lawson [1880] UKLawRpCh 285; (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

Counsel

D. Dotaona, for the plaintiff
T. Tanuvasa, for the first and second defendants

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 Scholarships other than Medical Students v. The University of Papua New Guinea [1985] PNGLR 401, the Supreme Court said at pg.405;
   

"A party cannot obtain relief which has not been requested or sought in the pleadings."

10. As to principles that apply to a trial on assessment of damages, the case of Jack Pinda v. Sam Inguba, The Police Commissioner and the Independent State of Papua New Guinea (unreported, delivered on 28/5/09) Hartshorn .J said at pgs. 1 and 2;
    

"The Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC790 stated:

The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi .J in Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002), National Court, N2182

His Honour stated:

A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant's defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the Statement of Claim.
   
2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
   
3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
   
4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
   
5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as many be pleaded and asked for in his Statement of Claim.
   

The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC692, Amet .CJ, Sheehan .J, Kandakasi .J.

Kandakasi .J applied those principles recently in the National Court in Desmond Huaimbukie v. James Baugen ((2004) N2589. We believe His Honour succinctly and correctly stated the law. We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. (See Keith Reid v. Murray Hallam and Allcad Pty Ltd (1995) n1337, National Court, Kapi DCJ and Andale More and Manis Andale v. Henry Tokam and The State (1997) N1645, National Court, Injia .J)...

Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

• the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;
  
• if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;
  
• only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability."
  

11. Justice Hartshorn held further at pg.3 that in order for a plaintiff to succeed in having the State held liable for a tort of a policeman, the following must be established;
    

"To succeed in having the State held liable for the tort of a policeman, the Court has to be satisfied that:

(a) the policeman as a servant or agent of the State, committed the tort during the course and within the scope of his employment (s.1(1)(a) Wrongs Act, or

(b) the policeman as an officer of the State, committed the tort while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law (s.1(4) Wrongs Act: The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR 5."

12. The same principles apply in this case.
    
13. Firstly, should this Court revisit the aspect of liability? It should only do so where the cause of action pleaded does not make sense or would make any assessment of damages a futile exercise. (See Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC692, Amet .CJ, Sheehan .J, Kandakasi .J)
    
14. It is the plaintiff's claim that the second defendant State is vicariously liable for the actions of the first defendant. The only time this is pleaded in the Statement of Claim is at par.3 which reads;
    

"The first defendant was at all material times acting in the course of his employment as a foreman with the Department of Works and was a servant or agent of the State."

15. The plaintiff does not plead how it is that the second defendant is liable. He does not specifically pleads s.1(1)(a) of the Wrongs (Miscellaneous) Provisions Act chapter 279 ('WMPA'). That provision reads;
    

"1. General liability of the State in tort

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject –

• (a) in respect of torts committed by its servants and agents; and
  

..."

16. Order 8 rule 14 of the National Court Rules ('NCR') requires that certain matters be specifically pleaded. It reads;
    

"14. Matter for specific pleadings

In a defence or subsequent pleadings the party's pleading shall pleads specifically any matter, e.g. performance, release, any status of limitation, fraud, or any facts showing illegality –

(a) which alleges makes any claim, defence or other case of the opposite party not maintainable; or

(b) which, if not pleaded specifically, may take the opposite party by surprise; or

(c) which rises matters of fact not arising out of the proceedings pleadings."

17. The reason for this is simply to avoid surprises and to ensure all the issues that need to be raised are raised long before a matter gets progressed to trial.
    
18. Additionally, each party must plead all the material facts on which he means to rely at the trial otherwise he is not entitled to give any evidence of them at the trial. No averment must be omitted which is essential to success. Those facts must be alleged which must, not may, amount to a cause of action (West Rand Co. v. Rex [1905] 2 K.B 399).
    
19. Where the evidence at the trial establishes facts different from those pleaded by the plaintiff as constituting negligence, which are not just a variation, modification or development of what has been alleged but which constitute a radical departure from the case as pleaded, the action will be dismissed (Waghorn v. George Wimpey & Co. Ltd [1969] 1 W.L.R 1764). Moreover, if the plaintiff succeeds on findings of fact not pleaded by him, the judgment will not be allowed to stand, and the Court of Appeal will either dismiss the action (Pawding v. London Brick Co (1971) 4 K.I.R 207) or in a proper case, will, if necessary, order a new trial. (Lloyde v. West Midlands Gas Board [1971] 1WLR 749).
    
20. Further, if a plaintiff's cause of action, or his title to sue, depends on a statute, he must plead all facts necessary to bring him within that statute (Seear v. Lawson [1880] UKLawRpCh 285; (1881) 16 Ch. D. 121; Read v. Brown [1888] UKLawRpKQB 186; (1988) 22 Q.B.D 128) (my emphasis).
    
21. In this case, the Statement of Claim only pleads that the plaintiff was a motor mechanic apprentice employed by the Department of Works (par.1). First if he was an apprentice, he would not have been in full time employment. Secondly, and most importantly, the plaintiff does not plead the full facts that would bring him within s.1(1)(a) of the WMPA. Merely stating that he was acting within the scope of his employment is not sufficient.
    
22. I reiterate again that the Statement of Claim does not say how the defendants are liable or the basis on which they are liable. The pleading at par.3 of the Statement of Claim that the first defendant was acting in the course of his employment as a foreman, as I said, is insufficient. Again, default judgment was entered only on those facts and not supported by the specific pleading of the statute, i.e s.1(1)(a) of the WMPA, and the relevant facts necessary to come within that provision (see Seear v. Lawson (supra) et al).
    
23. This deficiency was allowed to reach the stage where default judgment was entered, in my view, on a deficient Statement of Claim. The nexus between the first and second defendants is not established, more particularly the aspect of vicarious liability. The Supreme Court judgments in The Independent State of Papua New Guinea v. David Wari Kofewei [1987] PNGLR 5 and Abel Tomba v. The Independent State of Papua New Guinea (1997) SC 518, did not say that, vicarious liability automatically follows against the State as soon as the wrong doer is found as an employee of the State. That is only one-half of the consideration. They must have been found to have been acting within the scope of their employment. The plaintiff was allegedly sitting in the tray of the vehicle. The evidence is that the driver was drunk. Is the first defendant, the second defendant's servants or agent? Was he acting within the scope of his employment when the accident occurred? Although the plaintiff may say that aspect is sufficiently pleaded in par.3 of the Statement of Claim and is proven by the entry of default judgment, I sitting as the Court, cannot allow this very serious lapse and discrepancy in the pleading, to pass, i.e to specifically plead s.1(1)(a) of the WMPA and the full facts in support of s.1(1)(a) of the WMPA, e.g the nature of the driver's work and not just that "he was acting in the course of his employment."
    
24. As I stated above, I am again revisiting this aspect of liability because default judgment was entered on a defective pleading. That I can do by authority given to me by the Supreme Court in William Mel (supra), that the assessment of damages will be a futile exercise because the aspect of the State being vicariously liable by the first defendant's actions is not properly and fully pleaded.
    
25. I will dismiss this claim on that basis alone. However, I will proceed to consider the plaintiff's claim for damages to determine whether such an exercise will be futile or not.
    

Damages

26. I have already described above the plaintiff's injuries. This is supported by several medical reports. Objections were raised in relation to the tendering of these reports because they were inadmissible, for the reason that they were attached to the affidavit of the plaintiff when they should be attached to the doctors' affidavits. In raising these objections, Mr Tanuvasa for the State relied on s.37 of the Evidence Act and the Hearsay Rule. I accepted them but ruling that I would give them the appropriate weight they deserved.
    
27. First, this is a very old matter going back to 1991. The doctor, who the plaintiff claims to have treated him, is a Dr. Matupi L. Apaio. In his affidavit sworn on 18th August, 2006, the plaintiff deposes he obtained his report from Dr. Apaio "on or about 16th August, 2006". This doctor supposedly prepared the report in 2006 because it is attached to the plaintiff's affidavit sworn on 18th August, 2006. However, the plaintiff's lawyer was not able to explain how and why they could not produce him in Court for purposes of cross-examination. I raise this because the letterhead is that of the Port Moresby General Hospital, meaning when the doctor prepared his report, the lawyer should have, at the same time, drafted an affidavit for the doctor's signature. That did not happen.
    
28. Additionally, there is no evidence from the plaintiff of the initial treatment he received at the Sopas Adventist Hospital at Wabag immediately after the accident. He claimed to have been unconscious for a day from 28th August to 29th August, 1991 and was discharged on 2nd September, 1991. If that were the case, and if the plaintiff had lodged his claim in 1994, I am sure he would have retrieved those records or he would have been given some medical release papers. But these records are not before me. On the face of it, there is no evidence of treatment received by the plaintiff immediately after the accident.
    
29. In relation to the other reports before me, another report by Dr. Matupi L. Apaio dated 20th September, 1991 states that he treated the plaintiff at the Wabag Dental Hospital a month later after the accident. Why did he not swear an affidavit? That report should have been attached to the doctor's affidavit together with the other reports attached to the plaintiff's affidavit sworn on 18th August, 2006.
    
30. There is another report by a Dr. Leonard Numo Kaupa, Deputy Chief Surgeon of the Highlands Region dated 8th July, 2008, on the Goroka Base Hospital's letterhead. That report is attached to the plaintiff's affidavit sworn on 11th July, 2009. Objections were raised by Mr Tanuvasa for the State in relation to this affidavit as being inadmissible. I accepted it into evidence with the ruling that I would give it the appropriate weight.
    
31. All these reports are not reports of injuries received immediately after the accident. There are reports prepared a month after the accident; 15 years later (2006 report) and 17 years later (2008 report). That does not assist in determining the authenticity of these reports considering the accident allegedly occurred 18 years ago.
    
32. Although, the plaintiff's lawyer requested that the Court not dismiss the claim because it would be seen to be harsh, I must remind Mr Dotaona that he has a duty to ensure that the necessary, properly admissible evidence are put before the Court and not to put the Court in a position where it would appear to be unfair to claimants and at the same time compromise itself. Mr. Dotaona's duty is to ensure that the doctors are in Court for purposes of cross-examination, which I note, could have been done in the case of Dr. Apaio but which was not done, although Notices to Cross-Examine were issued by the State. I do not know why this occurred.
    
33. At this time, the plaintiff's evidence in support of injuries allegedly suffered or sustained is wanting. This is also exacerbated by the fact that there is no evidence from the plaintiff confirming his employment with OTML. An affidavit from the Personnel Section of the OTML deposed to by the person in charge stating that the plaintiff is employed there and has been for sometime, will assist the Court. This goes towards his evidence that he has a knee injury which has affected his ability to walk properly. In fact the report by Dr. Kaupa states his disabilities to the right knee to be at 30%. Because the plaintiff claims to be a Heavy Equipment Fitter Mechanic with OTML, that evidence must be substantiated by evidence of employment the disabilities suffered, and how that affects his present employment. That is not before me.
    
34. As I always say, the Courts must be vigilant in ensuring that the proper Court processes are followed. Court processes is also in relation to the evidence to be relied on by the Court. Evidence that is hearsay in nature and that goes towards establishing the truth of what is contained in the statement will be inadmissible or should not be relied on by the Court. That, strictly speaking, is hearsay evidence because it is seeking to establish the nature of the injuries sustained by the plaintiff and the lasting disabilities. It should not be brought through the plaintiff but through the doctor responsible. The Court must prevent the abuse of its processes. In saying that, I refer to decision Wama Kints & 3 Ors v. Senior Constable Pius Kundi, Sergeant Vonomo Makis, Commissioner for Police & The Independent State of Papua New Guinea (2001) PGNC 88 N2113. In that case, in pgs. 8 and 9, the Court said this;
    

"Whilst the State did not present any evidence disputing the general claim, it is still necessary for the plaintiff to produce appropriate evidence in Court to support the quantum of the claim. Before dealing with each claim, I will address the law on this aspect."

In the case of Yange Lagan & 58 Ors v. The State, WS 419 of 1995, His Honour Injia .J when discussing the aspect of damages said;

"...plaintiffs must prove their damages in accordance with established principles as to onus and standard of proof and within the rules of practise and procedure prescribed in the National Court Rules. These are some well established principles as to the standard of proof of damages some of which I have already referred to in recently in Jonathan Mangope Paraia v. The State (N1343). As I have said recently in that case, which is also a case involving a victim of the same police raid, the onus is upon the plaintiff to prove on the balance of probabilities, the damages...".

In McGregor on Damages, (Sweet & Maxwell, 13th Edn, 1972, London), the author said;

"The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case, the proof of such allegation falls on him. Even if the defendants fail to deny the allegations of damage or suffers default, the plaintiff must still prove his loss." (p.935)

Further, as Injia .J also stated in Het Pakena v. The State and Ors N1369);

"In my view, the minimum requirement in any action is for the plaintiff himself to give admissible evidence in support of his claim...When the primary evidence of the plaintiff is lacking, there is a serious gap in the plaintiff's case, all other evidence inadmissible as being hearsay or hearsay upon hearsay."

Section 37 of the Evidence Act chapter 48 is the law governing a medical practitioner's evidence. It provides the avenue by which medical evidence may be tendered. It states.

"37 - Evidence of scientific examination

(1) An affidavit made by a Medical Practitioner who has made a medical pathological or other specific examination of a thing setting out –

• (b) his qualifications; and
  
• (c) that he has made the examination; and
  
• (d) the facts that he has ascertained and the conclusion at which he has arrived as a result of the examination is admissible in evidence in any legal proceedings in a Court."
  

In distinguishing hearsay evidence from original evidence, Aranson, Reaburn and Weinberg in their text "Litigation Procedure" Butterworths second edition at par.30.02 made reference to a statement by Professor Sir Rupert Cross;

"Express or implied assertions, other than the witness who is testifying, and assertions in documents produced to the Court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted." (pg.777)

In the case Subramaniam v. Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965, the judges there held that evidence "...is hearsay inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made." (779).

Mr Joseph Mombo's medical report strictly speaking, and in compliance with s.37 should be attached to his own affidavit when it will then be accepted as good evidence. The evidence in Mr Mombo's evidence seeks to establish the truth or the nature of the injuries allegedly suffered by Mr Wapia, to then claim damages. As it is, Mr Wapia's affidavit contains hearsay material which I will not rely on.

35. Therefore, I find myself in a position where I will not make any awards because I will not attach my weight at all to the medical evidence, considering the anomalies I raised in relation to each one of them. I will dismiss this claim.
    
36. Each party shall pay their own costs of the proceedings because the defendant has also contributed to this impasse by not filing a Defence and allowing this matter to come this far with these obvious deficiencies.
    

_____________________________________
Dataona Lawyers: Lawyers for the Plaintiff
Solicitor General's Office: Lawyers for the first and second Defendants