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George v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 62; [1993] PNGLR 477 (16 November 1993)

PNG Law Reports 1993

[1993] PNGLR 477 - Komboro George v MVIT�

[1993] PNGLR 477

N1186

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KOMBORO GEORGE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

3-4 November 1993

16 November 1993

PRACTICE AND PROCEDURE - Amendment of pleadings - Amendment of statement of claim after close of evidence - Whether prejudice to defendant - Amendment allowed.

Facts

The plaintiff sought to amend the statement of claim and pleading at the end of the trial of his action for damages for injuries sustained in a motor car accident. He sought to delete the phrase stating that the vehicle "was insured against liability under a third party policy of insurance". The amended pleading, which read that "the vehicle was uninsured", would accord with the facts established by the evidence and the relevant statutory provision.

Held

N1>1.������ The National Court Rules O 8 r 50 allows the court to amend the pleadings at any stage of a trial, but leave to amend should be sought as early as possible after the need has arisen.

N1>2.������ A court will allow pleadings to be amended only if the other party is not prejudiced.

N1>3.������ In exercising its discretion, the court must act judicially.

N1>4.������ The court should only allow pleadings to be amended at the end of the evidence, if the issues to be pleaded in the amendment have been aired at the hearing.

Cases Cited

Papua New Guinea case cited

New Guinea Co Ltd v Thomason [1975] PNGLR 454

Other cases cited

Baker v Medway [1958] WLR 1216.

Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 ChD 700.

Gordon v McGregor [1909] HCA 26; (1909) 8 CLR 316.

Counsel

P Kopunye, for the plaintiff.

A Kandakasi, for the defendant.

16 November 1993

WOODS J: At the end of the trial on a claim for damages for injuries received in a motor vehicle accident, the plaintiff sought to amend the statement of claim to support the real basis of the claim following the disclosure of certain facts during the trial and to bring the pleadings into line with the act under which the claim is made.

The claim by the plaintiff is brought under the Motor Vehicles (Third Party Insurance) Act Ch 295 s 54, which states:

N2>"(1)���� Subject to subsection (2), any claim for damages in respect of the death or bodily injury to any person caused by, or arising out of the use of:

(a)����� a motor vehicle insured under this Act, or

(b)����� an uninsured motor vehicle in a public street; or

(c)����� a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established

shall be made against the Trust and not against the owner or driver of the motor vehicle...."

It is necessary to bring your claim within one of the above three categories with appropriate evidence. However, in this case, in the statement of claim, the plaintiff has said:

N2>"(3)���� At all relevant times the Toyota Truck was owned by one Mathew Wasingo and was insured against liability under a third party policy of insurance, or uninsured, with or by the defendant under the said Motor Vehicles (Third Party Insurance) Act Ch 295."

The plaintiff has not particularized under which category in s 54 the claim is made. Further, at the close of the evidence it was quite apparent that the motor vehicle concerned was unregistered and uninsured at the time of the accident. The lawyer for the plaintiff has, therefore, sought an amendment to the pleadings and, in particular, to amend paragraph 3 of the statement of claim to delete the words "insured against liability under a third party policy of insurance, or". The effect of this amendment would be to make it clear that the claim is brought under s 54(1)(b) against an uninsured motor vehicle. This would accord with the evidence that has been brought before the court. The defendant has objected to this application at this late stage.

The National Court Rules O 8 r 50 quite clearly allows a court to amend the pleadings at any stage of a trial. The practice is quite clear that leave to amend a pleading should be sought as early as possible after the need has arisen. It is not unusual for a party to apply to amend pleadings during the hearing, especially when the evidence may indicate certain difficulties. However, it is well established that a court will allow pleadings to be amended if the other party is not prejudiced and if it is necessary to amend the pleading to accord with the issues. Sometimes an amendment may be crucial to the success of the plaintiff at the trial. If the evidence and the pleadings are out of step, and at the end of the trial the plaintiff is not entitled to judgment on the pleadings, he may fail unless he can secure an amendment.

The court in New Guinea Co Ltd v Thomason [1975] PNGLR 454 dealt with an application to amend pleadings at the end of the evidence. At p 457 the judge noted the general principles being cited in several authorities. Amendments ought to be made, he said:

"for purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings". See Baker v Medway [1958] 1 WLR 1216.

"It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.... I know of no kind of error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right". See Bowen LJ in Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 Ch D 700 at 710-711.

As the judge in New Guinea Co Ltd v Thomason said, whether leave to amend should be granted or not is a matter of discretion for the court and must be judicially exercised. So, whilst the plaintiff in this case before me now may not have properly examined his evidence, particularly the police accident report, there is no mala fide here.

At the end of the evidence, the court should allow the pleadings to be amended only if the issues to be pleaded in the amendment have been aired at the hearing. This principle is stated in Gordon v Macgregor [1909] HCA 26; (1909) 8 CLR 316 at 321 by Griffith CJ.

"It is a very dangerous thing after the close of the evidence to allow an amendment to raise a point founded on some oral statement by a witness, which may be perfectly complete so far as it is relevant to the issues which are being tried, but which if it were given with reference to entirely different issues would be incomplete. It is like allowing a party to raise a new case on appeal when the Court has not all the materials before it".

In the case before me now, the plaintiff quite clearly cannot succeed, as he has not brought himself properly within the insured category of s 54 and he did not clearly delineate under which category he was claiming. In its defence, the defendant clearly denied that the subject motor vehicle was insured and brought the appropriate evidence at the trial to prove that. I must add here that, having been put on such notice, the lawyer for the plaintiff should have been more industrious or careful in checking the evidence about registration and insurance. Unfortunately, he relied too cursorily on the police accident report. A closer analysis of that report would have revealed to him, or warned him, that the vehicle may have been uninsured.

I must now consider whether the defendant will be prejudiced if I allow this amendment. The defendant was still liable to be sued under s 54 even if the motor vehicle is uninsured, which it now appears to be. So it would still have had to answer the claim and challenge the fact of the accident and the nature of the injuries, and these it has done. Whilst the fact that the vehicle is uninsured may give the defendant certain rights or actions against the driver or owner, these do not affect the plaintiff. The only real prejudice suffered by the defendant is that it brought a witness to the trial which it may not have done if the amendment had been originally pleaded. It may even have considered settling the matter and, thus, saved the expense of a trial. So the only prejudice to the defendant is the matter of the costs of the trial.

In the circumstances, therefore, the court is bound to exercise its discretion and allow the amendment at this late stage and make appropriate orders as to costs.

I order that leave be given to amend the statement of claim by the deletion in paragraph 3 of the words "insured against liability under a third party policy of insurance, or" and that the statement of claim is now deemed to be so amended. I order the plaintiff pay the defendant's costs of the trial.

Lawyer for the plaintiff: Kopunye Lawyers.

Lawyer for the defendant: Young & Williams.