N1186

PAPUA NEW GUINEA
[In the National Court of Justice]

WS 829 of 1991

KOMBORO GEORGE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen: WOODS J
3, 4, 16, November 1993

INTERLOCUTORY JUDGEMENT

Practice and procedure - Amendment of Pleadings - Amendment of Statement of Claim after close of evidence - whether prejudice to defendant - amendment allowed.

Cases cited.
Cropper v Smith (1884) 26 chD.700.
Gordon v McGregor 1909 8 C.L.R. 316
New Guinea Co Ltd v Thomason [1975] PNGLR 454

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 Section 54 which states:

(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 of the motor vehicle cannot after due inquiry and search be established,

(c) 	a motor vehicle on a public street where the identity of the motor vehicle cannot after due enquiry 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:

(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 Chapter 295.

The Plaintiff has not particularized under which category in section 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 Section 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.

National Court Rules Order 8 Rule 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 judgement 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 page 457 the Judge noted the general principles being: 

"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".

"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 the 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) 26 chD,.700 @ 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 direction 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 and 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 8 C.L.R. 316 at 321 by Griffith C.J.

"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 and 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 and 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 defendants costs of the trial.

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Lawyer for the Plaintiff: Kopunye Lawyers
Lawyer for the Defendant: Young & Williams