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Supreme Court of Papua New Guinea |
[1995] PNGLR 202 - Motor Vehicles Insurance (PNG) Trust MVIT v Nand Waige, Wagbie Jack and Kawage Gedua�
SC478
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA 121 OF 1993
SCA 122 OF 1993
SCA 123 OF 1993
MOTOR VEHICLES INSURANCE (PNG) TRUST
V
NAND WAIGE, WAGBIE JACK, KAWAGE GEDUA
Waigani
Woods Jalina Sakora JJ
28 June 1994
2 March 1995
PRACTICE AND PROCEDURE - Striking out Defence - Pleading the general issue - National Court Rules, Order 8 r 2 and 28.
Facts
An application was made successfully to strike out the defence on the basis that the appellant had pleaded the general issue contrary to the National Court Rules, Order 8 r 28. The appellant appealed against those orders.
Held
N1>1.������ (By majority) O 8 rr 21 and 28 make it clear that a general denial to each allegation is not the same as pleading the general issue.
N1>2.������ (By majority) A general denial of the whole claim in one breath could be pleading the general issue, following Hornibrook Constructions Pty Ltd v Kawas Express Pty Ltd [1986] PNGLR 301.
Cases Cited
Adevu v Motor Vehicles Insurance (PNG) Trust [1994] Unreported SC461.
Akipa v Lowa [1990] PNGLR 502.
Hornibrook Constructions P/L v Kawas Express Corp P/L [1986] PNGLR 301.
Counsel
A Kandakasi for the appellant.
E Styliano for the respondents.
2 March 1995
WOODS SAKORA JJ: These appeals are against orders of the National Court made in each case on the 15 September 1993 striking out the appellant�s defences and ordering judgment for the plaintiffs with damages to be assessed.
Application was made to strike out the defences in each case on the basis that the defendant had pleaded the general issue that being especially disallowed by National Court Rules O 8 r 28:
�A party shall not plead the general issue.�
The claimants in these matters were claiming damages for personal injuries suffered in motor vehicle accidents. In each case the plaintiff had pleaded that the defendant (appellant) was liable by virtue of being the authorised insurer pursuant to s 54 of the Motor Vehicles (Third Party Insurance) Act Ch 295. The plaintiffs pleaded that they were lawfully travelling as passengers in motor vehicles which were duly registered and because of the negligence of the driver of the subject motor vehicle there was an accident and the plaintiff thereby suffered injuries. In each claim the plaintiff referred to different aspects of the negligent driving of the driver.
In answer and as a defence to the statement of claim the appellant had filed a defence which stated, for example, as in appeal 121:
N2>1.������ The defendant does not know and cannot admit paragraph 1 of the statement of claim
N2>2.������ The defendant does not admit paragraph 2 of the statement of claim.
N2>3.������ The defendant denies paragraph 3 of the statement of claim.
N2>4.������ The defendant denies paragraph 4 of the satement of claim.
N2>5.������ The defendant denies paragraph 5 of the satement of claim and each and every particular of negligence pleaded thereunder.
N2>6.������ The defendant denies paragraph 6 of the statement of claim and each and every particular pleaded thereunder.
N2>7.������ In the premises the defendant says that the plaintiff is not entitled to claim damages as pleaded, or at all.
So how is that pleading the general issue? Reference is made in the case Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 to the general issue. Kapi DCJ says that the purpose of O 8 r 28 is to prohibit the defendant from making a general denial without specifically denying the facts or basis on which the plaintiff�s cause of action is based. The reason for this is obvious, the purpose of pleading is to set out clearly the issues, not only to inform the other party but the Court as well. Each party needs to know the nature of the case against him so that he cannot be caught by surprise at the trial.
We do not argue with that expression of the purpose of pleadings. And then in that case by applying those principles to the pleadings and in particular the defence pleaded it was clear that the defence did not attempt to set out clearly the issues. The defence in that case had merely said in 2. �The defendant does not admit the allegations contained in paragraphs 3 to 10 of the satement of claim�. However the statement of claim in that case was pleading breaches of a contract and the statement of claim set out various aspects of that contract and the alleged breaches. The defence was therefore far too general when in an attempt to isolate the matters at issue it should have referred to each clause in the satement of claim and pleaded the defendant�s situation in respect of each of the allegations starting of course with what the defendant had to say about the particular contract. Thus do they recognise that there was some document called a contract or how do they dispute its very existence? However the broad �not admitting the allegations� was clearly too general when the court would need to know what was the defendant�s position regarding the very existence of the contract, it did not state the facts upon which the conclusion is reached. Therefore the appellants defence in this case before us now is far different from the defence to a contract as pleaded in that Hornibrook case.
Note also that following the Hornibrook case Kapi DCJ, referred again to the �general issue� in the case Akipa & Os v Lowa & Os [1990] PNGLR 502 and noted that O8 r 21 permits pleading a general denial of pleaded facts.
Order 8 r 21:
�A traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation.�
In the Akipa case, Kapi DCJ concluded as follows:
�I conclude from the cases I have referred to that pleading the general issue in defence is a plea which to use the words of Sugerman AP in the Rudenno case, �merely state a conclusion from denials which are not stated�. For example in an action for goods bargained and sold or sold and delivered, the plea in defence must deny the order or contract, the delivery or the amount claimed. To plead that the defendant �is not liable� or was �never indebted� is a conclusion which does not state the facts upon which such a conclusion is reached. However, where the statement of claim pleads facts upon which the cause of action is based such as existence of an order or contract, the delivery or amount claimed in an action for goods bargained and sold or sold and delivered, a mere denial of these facts either generally or specifically is permissible under O 8, r 21(2) of the National Court Rules. Such a plea in my view does not offend O 8, r 28 of the Rules.�
So what has the appellant pleaded in its defence. It has pleaded non-admission to some of the specific paragraphs. So what else can it do. Looking at each paragraph of the defence in turn.
N2>1.������ Paragraph 1 of the Statement refers to who the plaintiff is, and of course the Trust does not know the defendant, and will not know him or her until he or she presents themselves in court to give evidence. Thus does not know and cannot admit is clearly proper and is as expected by order 8 Rule 21.
N2>2.������ The statement of claims refers to the Trust as being the authorised insurer, and of course the Trust cannot admit that until it has been referred to the relevant policy number a fact which is only within the knowledge of the plaintiff or the driver or owner at the beginning of the case unless the case is being taken on the basis of non-insurance and non-registration which is not pleaded here.
N2>3.������ This is where the bare facts of the accident is recited. Of course the Trust does not know that or is entitled to not admit that until the evidence of the actual accident is presented. To say that the Trust should also within the 2 weeks allowed for the filing of a defence do its own investigations and obtain the police accident report and then agree that an accident has happened is making the Trust do the plaintiff�s work in double quick time and prejudge the whole of the evidence that should be presented to the court. A defendant has no obligation to prove a plaintiff�s case. Always remember a defendant is going to be liable to the costs if it denies a plaintiff�s claim unreasonably. �������
N2>4.������ The plaintiff merely makes a general allegation that the vehicle that caused the injuries is registered and insured however the statement of claim makes no reference to a policy of insurance number or the relevant dates of such registration and insurance. And remember that without a valid insurance there can be no registration. So without any reference number how can the Trust do its own researches. So it is quite entitled to deny generally in the terms of Order 8 rule 21. The onus is always on the plaintiff to prove its case, not on a defendant to prove the plaintiff�s case for it.
Of course if the plaintiff makes specific reference to a policy number then there would be an obligation on the Trust to specifically state in its defence what the status of that policy number was from its own records. But that is not the case here.
N2>5.������ This alleges the negligence in the driver and sets out the different aspects of the negligence. To go any further than make a general denial of negligence the Trust would have to in effect plead the evidence and it clear rule of pleading that evidence must not be pleaded.
The Trust has pleaded in accordance with O 8 r 21 for each pleading in the statement of claim and has done so in accordance with O 8 r 21, there has been no blanket general denial to the whole claim without reference to the different aspects. In this way the defence here is not of the same nature as the defence to an alleged contract as in the Hornibrook case. The Judge has clearly said that �if a specific allegation is made then it is my view that specific pleadings are required.� And surely this is what the Trust has done, it has separately denied each paragraph in the statement of claim. The Judge appears to have confused bare denials with the general issue. Look at O 8 r 21 again, a traverse may be either by a denial, or by a statement of non-admission, and surely that is what the appellant has done here. Yet the Judge seems to have equated a simple denial or a statement of non-admission with a general issue. This is clearly an error and again see Kapi DCJ in Akipa & Lowa above referred to. To take the respondent�s submission to it logical extension the defendant in its defence would have to plead the evidence to dispute or deny the plaintiff�s various allegations. And as we have pointed out already the plaintiff in these cases has made no reference to the number of the alleged policy of insurance and of course unless there is a current policy of insurance there cannot be any valid registration of the vehicle.
Note carefully the wording and implication of s 54 of the Trust Act. A plaintiff has to give notice and put himself into one of the 3 categories of claimants, and the court has a number of times made it clear that failure to specifically plead into which category the claim is made could lead to the failure of the claim because of vagueness of the issues.
There is always the overriding principle that the onus is on the plaintiffs to prove their case. This principle has been reiterated by the Supreme Court in Adevu v M.V.I.T. [1994] Unreported SC 461, �The sequence of events was that by its pleadings the defendant required the plaintiff to prove his case because the defendant did not know about the alleged circumstances of the accident. The plaintiff was put on clear notice that the allegations were not believed by the defence and that they would need to be proved.� And further: �The defendant had simply given notice that it did not know about the alleged circumstances of the case and that they would need to be proved�.
Whilst pleadings put some responsibility on a defendant to assist in defining the issue it puts no responsibility on any defendant whoever they are to help the plaintiff to prove their case. That is made clear by the Supreme Court above. Of course there is an overriding fact that an unreasonable defendant may lose as well as the claim but also the additional costs of running a trial. In this case before us now the general denials of the Defendant to each allegation is clearly within the rules and is not the same as pleading the general issue.
A careful consideration of O 8 r 21 and 28 makes it quite clear that a general denial to each allegation is not the same as pleading the general issue, general denials to each allegation is clearly within the rules whereas a general denial of the whole claim in one breath could be pleading the general issue as can be seen in the Hornibrook case.
We find that the Judge has clearly erred in law in striking out the defences and we allow the appeals and quash the orders of the Judge and reinstate the Defences as filed in each case.
JALINA J (dissenting):� The appellant appeals against orders made by the National Court 15 September, 1993 whereby it struck out defences filed by the appellant in respect of separate actions instituted by each respondent for damages arising out of an alleged negligent driving of a motor vehicle and entered judgment for the respondents with damages to be assessed. The respondents were passengers in the same vehicle.
The appellant�s defences were struck out in each case as it pleaded the �A general issue which was prohibited by O 8 r 28 which provides:party shall not plead the general issue.�
For want of better understanding of the reasons for the conclusion I have reached in this case, I quote the statement of claim and defence which were in similar terms in each claim except for the particulars of injuries sustained by and treatment given to each respondent as well as the amount of special damages which are obviously different.
STATEMENT OF CLAIM
N1>1.������ The plaintiff is an adult female aged approximately thirty-five (35) years old and comes from Ganige Village in Kerowagi, Simbu Province.
N1>2.������ The defendant is sued as an authorised insurer pursuant to s 54(1) of the Motor Vehicles (Third Party Insurance) Act, Ch 295.
N1>3.������ On the 30th day of September 1992, at approximately 1.30 p.m. the Plaintiff was lawfully travelling as a passenger in a motor vehicle, namely a white Toyota PMV bus, Registration Number P5100 along the Okuk Highway when it ran of the road and overturned at a location between Kerowagi and Kondiu in the Simbu Province (such circumstances being hereinafter called �the accident�).
N1>4.������ The said motor vehicle was at all material times insured against liability under a Third Party Policy of Insurance issued by the Defendant, pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act.
N1>5.������ The accident was caused as a result of the negligence of the driver of the motor vehicle, Igo Soke.
PARTICULARS OF NEGLIGENCE
N2>(a)����� Failed to keep a proper look out;
N2>(b)����� Failing to have proper control;
N2>(c)����� Driving at excessive speed;
N2>(d)����� Failing to steer or control the motor vehicle so as to avoid the accident;
N2>(e)����� Failing to stop or slow down;
N2>(f)����� Failing to have proper brakes and or steering;
N2>(g)����� Failing to take any adequate precaution;
N2>(h)����� Failing to comply with the provisions of the motor Traffic Act and Regulations made thereunder.
N1>6.������ As a result of the accident, the plaintiff was injured and suffered and will continue to suffer loss and damage.
The appellant�s defence were in the following terms:
DEFENCE
N2>1.������ The defendant does not know and cannot admit paragraph 1 of the Statement of claim.
N2>2.������ The defendant does not admit paragraph 2 of the statement of claim.
N2>3.������ The defendant denies paragraph 3 of the statement of claim
N2>4.������ The defendant denies paragraph 4 of the statement of claim.
N2>5.������ The defendant denies paragraph 5 of the statement of claim.
N2>6.������ The defendant denies paragraph 6 of the statement of claim and each and very particular of negligence pleaded thereunder.
N2>7.������ In the premises, the defendant says that the plaintiff is not entitled to claim damages as pleaded or at all.�
The purpose of O 8 r 28 was correctly stated by Kapi DCJ in Hornibrook Construction Pty Ltd v Kawas Express Corporations Pty Ltd [1986] PNGLR 301 at 302 which was endorsed by this Court in Michael Newal Wilson v Harold Rosser Howard, an unreported Supreme Court Decision No. SC 453 of 26 April, 1993:
�The purpose of O 8 r 28 is to prohibit the defendant from making a general denial without specifically denying the facts or basis upon which the plaintiff�s cause of action is based. The reason for this is obvious. The purpose of pleading is to set out clearly the issues; not only to inform the other party but the Court as well. Each party needs to know the nature of the cause against him so that he cannot be caught by surprise at the trial. Any pleading which tends not to deny specifically any fact but denies a matter general eg. a simple denial of a debt in an action for debt, would be a general denial without specifically denying the basis of the plaintiff�s action.�
It is noted that the appellant does not allege in its defence that notice of the claim was not given within six (6) months as required by s 54 (6) of the Motor Vehicles (Third Party) Insurance Act Ch 295. Consequently, it would appear that due to notice of the Respondents� intention to make a claim having been given no doubt settlement negotiations were had failing which this claim was filed in the National Court. The appellant was thus put on notice of the impending claim. Although at this stage it could be accepted that the notice of claim may contain the name of the claimant or claimants it may not contain the essential particular such as the registration number of the vehicle, the name of the driver, the date and place of accident. But once a writ of summons is issued the statement of claim would undoubtedly contain those particulars. By virtue of O 8 r 4(1) of the National Court Rules the defendant is required to file its/his defence within 14 days. No prudent defendant would file a defence that it knows cannot be sustained at trial if the facts upon which the defence is based are not true.
The purpose of pleading being one by which the issues would become clear to the parties as well as to the Court so that no one, particularly the other party, is caught by surprise at trial, it is necessary to consider whether the defence as pleaded clarify or appear to clarify the issues raised in the statement of claim.
N2>1.������ Paragraph 1 and 3 of the statement of claim alleges the gender, age, village and the province of the plaintiff as well as the date, place, time and registration number of the vehicle. The Trust having no doubt received the notice of claim pursuant to s 54(6) of the Act coupled with the fact that it has agencies in the main centres throughout this country, failed to request its agents to verify this from the police accident report prior to filing its defence so that it could be clearly determined at an early stage of the proceedings; whether or not the claim ���� was genuine and if so admit that aspect.
N2>2.������ The Trust�s denial of paragraph 2, is with respect, most absurd. It has been made a defendant by operation of law namely the Motor Vehicles (Third Party) Insurance Act Ch 295. How would it escape being sued? Whether or not it is found to be liable at the end of the day is another matter but being made a defendant is something it cannot avoid.
N2>3.������ Again, with respect, the Trust�s denial of paragraph 4 of the Statement of Claim is absurd. By law all compulsory third party insurance are obtained from the Trust through its agents most of whom are traffic registries throughout Papua New Guinea. No doubt the particulars of the policy which contain the model and registration number of the vehicle together with the premium (money) are sent to the Trust�s Head Office in Port Moresby. With these records being with the Trust, it seems to me that the Trust did not verify this with its records bearing in mind that no motor vehicle can be registered without the third party insurance from the Trust.
In Martha Kidanu v MVIT an unreported National Court Judgment dated 25th November, 1992 where the statement of claim and the defence were in several paragraphs and contained terms similar to those in the Appeal I said:
�In paragraph 1, it admits something which is a fact. It refers to the Defendant having been created by Statute. That is not a defence at all. In paragraph 2 it says it �does not know and cannot admit� and goes on to state the paragraphs concerned. If it does not know as it says, that clearly shows that it has not carried out any investigations prior to filing the Defence. In paragraph 3 it makes a general denial. This raises the question as to why it is denying in general terms. The defence, which is part of the pleadings, is supposed to inform the plaintiff of the case he has to meet and also to clarify the issues for trial. A defence in general terms is not a defence at all. A defence must go a little further than a general denial. It must plead with some particularity the basis upon which the defendant denies the allegations.
A general denial in the way the defendant has done here seem to suggest that it was done to avoid the plaintiff obtaining default judgment against it.�
Whilst I accept that the onus is on the plaintiff to prove his case on the balance of probabilities, I do not accept matters which the defendant could easily have investigated and either admitted or denied with sufficient particularity should be denied in a general way thus leaving the defendant and the Court in the dark. Denial with sufficient particularity does not mean that the defendant should be required to plead evidence. He could still plead facts with sufficient particularity. A denial with sufficient particularity would be advantageous to the defendant in that a plaintiff whose claim is not genuine would realise that he did not have a case with a reasonable chance of success if it went to trial thus leading to discontinuance of the case.
In this country where the majority of claimants for personal injury or death are illiterate and live in the rural areas and also cannot afford very high legal fees even to engage Papua New Guinean lawyers, care should be taken to ensure that people are not exploited or denied redress through the use of technical rules of practice and procedure. Cases should not be prolonged through the application of technical rules of practice and procedure to such an extent that the claim is extinguished by death or is abandoned because an ordinary villager cannot continue to pay high legal fees. This, with respect, appears to be the trend in this country.
In fact, failure by the Trust to not only attend to but to settle personal injury claims quickly is against the spirit and intent of the Act as can be seen from the speech by Julius Chan the then Finance Minister on 12 August, 1974 in Parliament when introducing the Motor Vehicle (Third Party) Insurance Bill, 1974.
�During the course of investigations into compulsory third party motor vehicle insurance, it was found that this type of insurance, is giving rise to complaints and difficulties in two major areas; namely delays in settlement of claims and difficulties in obtaining insurance.�
For the foregoing reasons I am of the opinion that the trial judge did not err when he decided to strike out the defendant�s defence as it pleaded the general issue. I would dismiss the appeal with costs.
Order of the Court (By Majority) - Appeal allowed. Order of the trial Judge quashed. Defences as filed are reinstated. Respondents to pay appellants costs.
Lawyer for the appellants: Young & Williams.
Lawyer for the respondents: Warner Shand.
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