N1090

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

GARO KEI

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani
Brown J

7 July 1992

PRACTICE AND PROCEDURE - Pleadings - Statement of claim - Form and manner - Facts to be alleged not law - National Court Rules O 8 r 8 - Motor Vehicles (Third Party Insurance) Act Ch 295 s 54.

DAMAGES - Personal injuries - Particular awards of general damages - Negligence of driver/owner - Need for claim in respect of special damages.

EVIDENCE - Claim for damages - Proceedings under Motor Vehicles (Third Party Insurance) Act Ch 295 s 54 - Proof of all material facts relied on - Not sufficient merely to quote law relied upon.

Facts

The plaintiff failed to either allege facts sufficient to constitute a complete cause of action or prove by evidence an action in negligence presumed on the state of his pleadings. While the plaintiff has a right to claim pursuant to s 54 of the Motor Vehicles (Third Party Insurance) Act Ch 295, no evidence was led as to the matters required to be proved to bring the plaintiff within the terms of the section. The facts appear from the judgment.

Held

National Court Rules O 8 r 8 requires proof of evidence of the facts alleged in the statement of claim. An assertion by stating s 54 of the Motor Vehicles (Third Party Insurance) Act is insufficient pleading where no facts are alleged for the purpose of the section.

Counsel

J Nanei, for the plaintiff.
V Mirupase with O Kenekasii, for the defendant.

7 July 1992

BROWN J: The plaintiff claims damages for personal injuries suffered as a result of a motor vehicle accident which he says happened on 11 May 1989 on the road from Kapakapa to Port Moresby near Manugoro village. The plaintiff says the accident was caused by one Peter Opu, the driver of a vehicle in which the plaintiff was travelling as a passenger. In support of his claim for damages, the plaintiff gave evidence, as did his former wife and his present wife. Their evidence related to the extent of his injuries and his present disabilities. The plaintiff was the only witness to the accident.

The defendant called no evidence and argued that the plaintiff had failed to prove material facts which may be described as prerequisites to a successful claim against the Motor Vehicles Insurance Trust (hereafter Trust). Those facts were the ownership of the particular motor vehicle, its registration, and the fact or otherwise of current insurance by the Trust at the time of this accident.

The evidence given by the plaintiff was to the following effect. I quote from the plaintiffs evidence given in court today.

"I recall Thursday 11 May 1989. I was picked up by Peter Opu at work at Jimi Trading, 4 Mile, at about 1 to 1:30 pm. We went to pick up my former wife and family to go to the village at Kapakapa. On the way to the village, I had two bottles of beer while the driver had only one. It takes about one and a quarter hours to reach the village. We stayed at the village till about 4 pm. Peter was with me to do electrical work in the trade store. I was waiting and having my beer. Sometime after, we drove back. Peter was driving too fast. I told him to slow down but he ignored my words. We came to a corner with a PMV bus going in the other way. Suddenly Peter lost control on loose gravel. My side went and hit the mountain. The vehicle stopped pointing to Port Moresby. I was taken to the Health Center at Kwikila and from there to Port Moresby General Hospital. I was admitted to hospital on the same day at about 8 pm. That night they operated on me."

He was later asked:

Question: Do you know the registration number of the motor vehicle?
Answer: ACB 334.

Question: Do you know who owns the vehicle?
Answer: The vehicle belonged to a friend of my in-law Aloysius.

He was asked what type of vehicle and he answered that it was a Subaru station wagon.

That was the only evidence given relating to the circumstances surrounding the accident or the motor vehicle involved. The plaintiff did say later in his evidence that he had not known the driver before this occasion and that the driver did not know the road to Kapakapa.

No policeman was called. The police motor accident report was not admitted as it was objected to by counsel for the defendant. I refused to admit the report in the circumstances. In the absence of a policeman who compiled the report, it cannot be tendered unless by consent.

The statement of claim stated:

1. The defendant is sued pursuant to s 54 of the Motor Vehicle (Third Party Insurance) Act Ch 295.

2. On 11 May 1989 at approximately 4 pm, the plaintiff was a passenger in a motor vehicle, a white Subaru station wagon registration no ACB 334, driven by one Peter Opu along Magi Highway in bound toward Port Moresby.

3. The said Subaru was then owned by Moses Ririan and driven by one Paul [sic] Opu, who was the servant or agent of the said Moses Ririan.

4. At all material times at a corner near Manugoro village on the said highway, the driver while negotiating a corner lost control of the said vehicle, hit the bank and went to the opposite side of the said highway, causing the said vehicle to overturn.

5. The said Paul Opu drove the said vehicle negligently and thereby caused the plaintiff injury loss and damage.

The statement of claim further particularised the negligence alleged and the injuries suffered by the plaintiff as a result of the accident. Although there was reference to National Court Rules O 8 r 33(1)(g) and (1)(j), there was no claim made in relation to special damages.

While the plaintiff gave evidence of his injuries and his present disabilities, I find that I need not enter upon considerations of those matters. The plaintiff having closed his case, as the evidence then stood, he has failed to prove facts underlying the right to claim damages against the Trust pursuant to s 54 of the Motor Vehicles (Third Party Insurance) Act Ch 295. That section provides:

"s54. Claims for damages:

1. Subject to Subsection (2), any claim for damages in respect of the death of 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 the 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 and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the Trust and not against the owner or driver of the motor vehicle."

The underlying facts which must be proved are that the motor vehicle involved in the accident was a motor vehicle insured under the act, or was an uninsured motor vehicle in a public street, or that the motor vehicle cannot, after due searching inquiry, be identified. No certificate has been given in evidence under hand of the Trust confirming the issue of a current certificate of insurance for the motor vehicle allegedly involved in the accident at the time. There is no evidence of the registered owner of the motor vehicle ACB 334 nor of any registration details in relation to that vehicle obtainable from the Department of Motor Transport. Such matters clearly go to documents, for the fact of registration is a matter for the Department of Transport and may be proved by a certificate obtained from that department. That certificate is evidence of ownership for the purposes of the act and, similarly, a certificate under hand of the Trust is proof of insurance. In this case, all those proofs are lacking. In my view, whilst it is not strictly necessary to plead the particular subsections under which the plaintiff sues by virtue of s 54 of the act, facts must be pleaded sufficient to bring the cause of action within the section. In other words, it would be appropriate in this case, as has been done, to plead ownership in a particular person and the fact that the vehicle was an insured vehicle at the relevant time. Since the point has not been taken prior to the hearing by the defendant, it would be open to the plaintiff to prove in evidence those facts which underlie his cause of action. In this case, however, he has neither pleaded the most material fact nor has he, in his evidence, proved those facts which he has alleged, including the details of the motor vehicle and the ownership or the registration. There has been no evidence of the most material fact, whether the vehicle was insured or uninsured at the time.

It is not strictly necessary for a plaintiff to formulate pleadings as an action in negligence; rather, he may plead the facts on which he intends to rely at the hearing, as the plaintiff has, in a fashion, sought to do here. However, those facts should be sufficient, if established, to allow the Court to find the remedy which he seeks. In this case, whilst some of the material facts have been pleaded, the evidence in support is lacking and the plaintiff must fail. It is not sufficient to plead, for example in the statement of claim, "the defendant is liable to the plaintiff by virtue of the provisions of s 54 of the Motor Vehicles (Third Party Insurance) Act". Facts must be stated on which the plaintiff will rely to bring his action within the terms of the section. The proposition found in O 8 r 8 of the National Court Rules is that a pleading must state facts and not law. A pleading should state facts and not evidence by which they will be proved.

As I say, the plaintiff has in part pleaded those facts but has failed to allege that the relevant motor vehicle was, for instance, insured or uninsured at the time of the accident. Even if silent on those facts, evidence must be brought to bring the plaintiff within the provisions of s 54.

In the absence of evidence in support of those necessary preconditions, the defendant is not liable. The plaintiffs claim must fail. There shall be a verdict for the defendant. The plaintiff shall pay the defendant's costs.

_______________

Lawyer for the plaintiff: J B Nanei & Company.
Lawyer for the defendant: Young & Williams.