PNG Law Reports 1994
[1994] PNGLR 57
SC461
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SIDI ADEVU
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
Waigani
Kapi DCJ Andrew Sakora JJ
25 April 1994
1 July 1994
APPEAL - Practice and procedure - Notice of objection to competency - Whether grounds of appeal raise question of fact alone or a question of mixed fact and law - Each case decided on its own merits.
EVIDENCE - Fresh evidence - Admissibility - Tests to be applied.
EVIDENCE - Credibility - Whether Court is bound to accept plaintiff's uncontradicted evidence re alleged eye injury - When defendant has given notice that it lacks knowledge of the events - Onus on plaintiff to prove case on the balance of probability - Browne v Dunn rule inapplicable.
Facts
Sidi Adevu was a passenger in a motor vehicle when it was involved in an accident. He claims damages for personal injuries allegedly suffered as a result of that accident. The trial Judge found that there was a lack of medical evidence to support his claim and found against the appellant on liability.
The appellant appealed against that finding on the following grounds:
1.       The trial Judge erred in law in finding that the defendant was not liable to the plaintiff; s 54(1) of the Motor Vehicles (Third Party Insurance) Act Ch 295 imposes a liability on the defendant to pay damages to any person, including the plaintiff, who sustained bodily injury caused by, or arising out of the use of, an insured motor vehicle.
2.       The trial Judge erred in his finding of fact that the defendant was not liable to the plaintiff; he gave undue weight to the lack of evidence of initial medical advice.
3.       The finding that the defendant was not liable was against the evidence or the weight of the evidence in that there was clear, strong, and unchallenged evidence by the plaintiff and his witness, Oivi Omane, that the plaintiff was a passenger in a motor vehicle driven by Mr Omane, which was involved in an accident on 10 June 1989 and, as a direct consequence of the accident, the plaintiff received cuts to his face and eyes.
The respondent filed an objection to competency to the notice of appeal on the basis that it did not particularise the grounds of appeal or demonstrate that the judge's finding was against the evidence and the weight of the evidence. The notice of appeal was subsequently amended by the appellant, but the respondent pursued the objection to the amended notice of appeal at the hearing on the original basis and on the further basis that it raised only questions of fact, and no leave had been applied for, as required under s 4 of the Supreme Court Act Ch 37.
Held
1.       Objection to competency:
(a)      The amended notice of appeal specifies grounds relied on with sufficient particularity.
(b)      The issue of whether the question relates to fact or law or mixed fact and law can only be determined upon consideration of the whole case, and each case must be decided on its merits.
(c)      The issue of lack of medical evidence on the question of whether the appellant received injuries in the accident involves an application of judgment to those facts. Such judgment amounted to the finding of inferences and conclusions deducted by a process which was central to the judgment and reasonings and which involved findings of mixed fact and law; therefore, leave was not required.
2.       Fresh evidence:
(a)      Under s 6(1)(a) of the Supreme Court Act, the Supreme Court may admit fresh evidence on appeal where the justice of the case warrants.
(b)      Application was dismissed because it failed two tests:
(i)       It was not fresh evidence. The medical report was discovered and in appellant's possession for two years before trial.
(ii)      It would not affect the result. The medical report was compiled four months after the alleged accident and, therefore, was unlikely to have a bearing on the issue whether the injuries were suffered in the alleged accident.
3.       Liability:
(a)      The trial Judge's finding that the appellant's evidence was uncorroborated, that he was not believed, and that he had not proved his case on the balance of probability was open on the evidence. The appellant did not show any error on the part of the trial Judge or that the judgment was unreasonable.
(b)      The appellant was put on notice that he would have to prove his case on the balance of probability. The rule in Browne v Dunn is not applicable. That rule is that any matters on which it is proposed to contradict the evidence-in-chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence-in-chief. Browne v Dunn is not an authority for the proposition put by the appellant that, where a party fails to discredit the evidence of a witness of the opposing party, the tribunal of fact should, as a rule, accept the credibility of that evidence.
Cases Cited
Papua New Guinea cases cited
Dillingham Corp v Diaz [1975] PNGLR 262.
South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38.
Straits Contracting (PNG) Pty Ltd v Branfill Investments Ltd [1988] PNGLR 239.
Tabe v The State [1983] PNGLR 10.
Other cases cited
British Launderers' Research Association v Central Middlesex Assessment Committee [1949] 1 All ER 21.
Browne v Dunn (1893) 6 R 67 (HL).
Counsel
J Yagi, for the appellant.
R Thompson, for the respondent.
1 July 1994
KAPI DCJ ANDREW SAKORA JJ:  This is an appeal from a decision of the National Court in which the appellant's claim for damages as the result of injuries suffered in a motor vehicle accident was dismissed by the Court on the ground that the appellant had failed to prove liability on the balance of probabilities.
There are two preliminary applications filed. The first is a notice of objection to competency filed by the respondent. The second is an application by the appellant to introduce fresh evidence.
OBJECTION TO COMPETENCY
The original notice of appeal was filed on 4 December 1991. The notice of objection to competency was filed on 11 December 1991.
On 15 December 1991, the appellant filed an amended notice of appeal. The original notice of objection was based on O 7 r 9 of the Rules of the Supreme Court. This rule states:
"Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law."
The amended notice of appeal raises two grounds which are objected to on the further basis that they raise only questions of fact and that no leave has been applied for, as required by s 4 of the Supreme Court Act Ch 37. Those grounds are as follows:
"Ground 3 (b) The trial Judge erred in his finding of fact that the defendant is or was not liable to the plaintiff in that the trial Judge gave undue weight to the fact of lack of evidence of initial medical evidence.
Ground 3 (c)  The finding that the defendant was not liable was against the evidence or the weight of the evidence in that there was clear, strong and unchallenged evidence by the plaintiff and his witness one Oivi Omane that the plaintiff was a passenger in a motor vehicle driven by Oivi Omane which was involved in an accident on 10th of June 1989 and as a direct consequence of the accident the plaintiff received cuts to his face and eyes."
We are satisfied that the amended notice of appeal specifies with sufficient particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence. A notice of appeal may be amended without leave by filing a supplementary notice before the date of appointment to settle the Appeal Book: O 7 r 24 of the Rules of the Supreme Court. In this case, that date of appointment was 7 January 1992, so the amended notice was within time. The question remains, however, whether leave was required, as it is submitted that these additional grounds raise only questions of fact. If they raise questions of law or a question of mixed fact and law, then leave is not required: s 4 Supreme Court Act.
The issue of whether questions relate to fact or law or mixed law and fact is not as simple as it may appear. See Dillingham Corp v Diaz [1975] PNGLR 262 at 269, where the Supreme Court indicated that the difficulty that courts have in deciding such matters is revealed in numerous judgments. The Court cited the well known passage of Denning LJ in British Launderers' Research Association v Central Middlesex Assessment Committee [1949] 1 All ER 21 at 25, that:
"On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and in so far as those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts . . . If and in so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness, determination by a trained lawyer - as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer - the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of first instance."
The issue of whether grounds 3 (b) and 3 (c) raise questions of fact alone or a question of mixed fact and law can only be determined upon a consideration of the whole case. Each case must be decided on its own merits. Here, the issue of the lack of medical evidence as it related to the evidence of the plaintiff on the question of whether he received his injuries in this particular accident involved the application of judgment to those facts. Such a judgment, we think, amounted in all the circumstances of this case to the finding of inferences and conclusions deducted by a process which was central to the judgment and of reasonings which, it can be said, involved more than just a finding of fact alone, but of findings of mixed fact and law. We would not, therefore, accede to the application to strike out these two grounds of appeal, as leave was not required.
FRESH EVIDENCE
The appellant's application is that the medical report dated 4 October 1989 by Dr Amos Benjamin of Dr Stephen J Webb Clinic be admitted as evidence in the proceedings before the court.
The appellant has failed to comply with O 7 r 62 of the Rules of the Supreme Court that this application must be filed more than 21 days before the hearing of the appeal. This rule is discretionary, but there has been no application to waive compliance.
Under s 6(1)(a) of the Supreme Court Act, the Supreme Court may admit fresh evidence on an appeal "where it is satisfied that the justice of the case warrants it." Here, however, we think the application fails to satisfy any of the tests laid down by the Supreme Court in such cases as Tabe v The State [1983] PNGLR 10; South Pacific Post Pty Ltd v Nwokolo [1984] PNGLR 38 and Straits Contracting (PNG) Pty Ltd v Branfill Investments Ltd [1988] PNGLR 239. It fails because:
1.       It is not fresh evidence. It is apparent that the evidence was discovered and in the appellant's possession for two years before the trial. Either the appellant's lawyers omitted to call this evidence by inadvertence or chose not to use it. In these circumstances, it is clearly not fresh evidence.
2.       The evidence is a medical report compiled some four months after the alleged accident. If tendered, it would probably not affect the result. As the issue here was whether the appellant suffered the injuries in this particular accident, this report would be unlikely to have any bearing on that issue.
For these reasons, it is our opinion that this evidence should not be admitted.
DAMAGES CLAIM
In this matter, the appellant/plaintiff claimed damages by way of writ of summons for injuries received in a motor vehicle accident. It was alleged that on 10 June 1989 he was lawfully travelling as a passenger in a Toyota station wagon, registration ADZ 619, being driven by Oivi Omani along Bava Street in Port Moresby when it collided at the Taurama Road intersection with a Mazda station wagon, registration AIA 099. He alleged that, at the relevant time, the vehicle in which he was a passenger was insured by the defendant within the meaning of the Motor Vehicles (Third Party Insurance) Act Ch 295.
The plaintiff alleged that the accident was caused by the negligence of both drivers and that, as a result of the accident, he suffered multiple wounds to the forehead, bruised left and right eye lids, bruised eye brows, and the loss of his right eye.
There are three main grounds of appeal. Grounds 3 (b) and 3 (c) have already been set out. Ground 3 (a) is as follows:
"The trial Judge erred in law in finding that the defendant is or was not liable to the plaintiff in that s 54(1) of the Motor Vehicles (Third Party Insurance) Act Ch 295 imposes liability on the defendant to pay damages to any person including the plaintiff who sustains bodily injury caused by or arising out of the use of an insured motor vehicle."
The learned trial Judge found that there was a lack of medical evidence to support the plaintiff's claim. He found as follows:
"I have to decide the question of liability on the evidence of the plaintiff and his witness, Oivi Omani, alone. To do that I have to weigh their evidence and assess their credibility. The liability aspect of the case lies on the evidence of the plaintiff and Oivi Omani.
My first impression of the plaintiff's evidence was that I thought he was a truthful witness until he was cross examined. Then I have wondered why he has not obtained any medical reports from Dr Benjamin of Dr Webb's clinic and why he has not collected any reports from the Port Moresby General Hospital and Dr Dutta. Why only Dr Korimbo's evidence? Dr. Korimbo was engaged two months after the accident which is rather late and arguably remote.
Furthermore, the nature of the accident has not been described properly. All I know is that there was a collision and the plaintiff's eye was cut. There is no evidence that the windscreen of the plaintiff's vehicle was smashed such as to leave it to the court to infer that glass or other parts of the car cut the plaintiff's eye.
None of that kind of evidence has been produced so I do not know exactly how the plaintiff suffered the eye injury. Did he bump his eyes on the dash board? That evidence has not been adduced.
Again I ask myself why select Dr Korimbo's report only and not from the Port Moresby General Hospital and Dr Webb's clinic. Dr Korimbo dealt with the plaintiff two months after the accident. Supporting evidence that should have been called has not been called. The onus is on the plaintiff to prove its case on the balance of probabilities.
I am sorry but liability was not proven sufficiently on the balance of probabilities."
The grounds of appeal, that the trial Judge gave undue weight to the lack of initial medical reports and that the findings are against the evidence, and the weight of the evidence, have been particularised in the appellant's written submissions. These submissions allege that the trial Judge erred in finding that there was inconsistency between the pleadings and the evidence as to the fact that the appellant was a passenger in one of the motor vehicles involved in the accident. But clearly, on the contrary, the trial Judge found that the fact that the appellant was a passenger was not in dispute, and the defendant did not deny during the trial that he was in an accident.
It is also clear on the evidence that the trial Judge had to decide liability on the evidence of the plaintiff and his witness, Oivi Omani. He found that he had to weigh their evidence and assess their credibility. His first impression was that the plaintiff was a truthful witness, until he was cross examined. That is a plain finding that he has not accepted the truthfulness of the plaintiff. That was the basis of the finding that the plaintiff had not proved his case on the balance of probabilities and that he had provided insufficient evidence on every aspect of his claim. 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 his allegations were not believed by the defence and that they would need to be proved. Counsel for the appellant has submitted that the credibility of the appellant and his witness were never challenged and that, accordingly, their evidence should have been believed. Reliance was placed on the well known rule in Browne v Dunn (1893) 6 R 67 (HL), which, it is said, is authority for the proposition that, where the opposite party fails to discredit the evidence of a witness, the tribunal of fact should, as a rule, accept the credibility of that evidence.
However, the rule in Browne v Dunn means only that any matters upon which it is proposed to contradict the evidence-in-chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence-in-chief. That was not the situation here. 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. The defendant did not call any evidence to contradict the plaintiff 's evidence. He was entitled to put the plaintiff to proof, and the onus was on the plaintiff to prove his case on the balance of probabilities. Accordingly, the rule in Browne v Dunn had no application here.
The learned trial Judge found that the plaintiff had not provided sufficient evidence to prove, on the balance of probabilities, that he had sustained the eye injury as a result of this accident. He did not believe the plaintiff. In the absence of evidence to support his claim, the failure to produce supporting medical evidence was relevant. The plaintiff was the only person who said that he injured his eye; that he was admitted to the Port Moresby General Hospital; that he was treated at the hospital; that he was discharged; that he was treated at Dr Webb's Clinic; that he was treated by Dr Dutta; that he was operated on by Dr Dutta; and that he lost the right of his eye as a result of the injuries he received in the accident. The plaintiff referred to all of these matters but failed to call evidence from any of these independent sources. No reason was given.
Therefore, the trial Judge found that the plaintiff's evidence was uncorroborated, he was not believed, and he had not proved his case on the balance of probabilities. That finding was, in our view, open on the evidence. We can see no error on the part of the trial Judge. He assessed the credibility of the plaintiff and the lack of evidence and came to the conclusion, on all of the facts, that the plaintiff had not proved his case. In our opinion, the appellant has not shown any error on the part of the trial Judge or that the judgment was unreasonable.
We would dismiss the appeal and award costs to the respondent.
Lawyer for the appellant: Kirriwom & Company.
Lawyer for the respondent: Young & Williams.