Unreported National Court Decisions
N1386
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO 922 OF 1991(H)
BETWEEN
JACK LUNDU YALAO - PLAINTIFF
AND
MOTOR VEHICLES INSURANCE (PNG) TRUST - DEFENDANT
Mount Hagen
Injia J
7 July 1995
7 October 1995
21 October 1995
27 October 1995
8 December 1995
PRACTICE AND PROCEDURE - Application to re-open trial at the end of trial and after written submissions on evidence filed - Discretion - Grounds for exercising discretion - Nature and importance of the evidence (sought to be introduced)to the issues in the trial.
PRACTICE AND PROCEDURE - Pleadings - Defence - Method of traversing fact alleged in Statement of Claim - Appropriateness of method - Whether defendant who knows or should know an alleged matter of mixed fact and law may plead non-admission due to lack of knowledge of that fact - Whether such pleading is inappropriate to the nature of the plaintiff’s pleadings, or discloses no reasonable defence, or causes unnecessary prejudice to the plaintiff or is an abuse of the court’s process - National Court Rules O 8 rr 21 (2), 27.
STATUTE - Claim for damages pursuant to Motor Vehicles (Third Party Insurance) Act Ch No 295 - Appropriateness of pleadings in the context of the nature and extent of Motor Vehicles Insurance (PNG) Trust’s liability for death or personal injury arising from insured, uninsured or unidentified motor vehicles discussed - Motor Vehicles (Third Party Insurance) Act Ch No 295, ss. 44, 50, 53, 54 (1), (6); 57 (1) (b), (c).
HELD:
(1)      The nature and importance of the evidence sought to be called upon re-opening the case to the material issue(s) in the trial is an important factor affecting the exercise of discretion whether or not to re-open the case:
Parao Tunboro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 273 considered.
(2)      Because the insured status of the motor vehicle which caused the injury to the plaintiff was known or ought to be known by the Defendant Trust from its own records and accounts required to be kept pursuant to s. 44, 49 and 53 of the Motor Vehicles (Third Party Insurance) Act Ch No 295, it was wrong for the defendant to plead in its defence that it did not know of and therefore could not admit the insured status of the subject motor vehicle as pleaded in the Statement of Claim. Such pleading was an inappropriate method of traversing the alleged fact; it did not disclose a reasonable defence; it caused prejudice to the plaintiff and may as well have constituted an abuse of the court’s process.
Motor Vehicles Insurance (PNG) Trust v Nande Waige & 2 Others, Unrep. SC478[1995].
Adevu v Motor Vehicles Insurance (PNG) Trust Unrep. SC461 [1994] both distinguished.
(3)      One of the main purpose of the Motor Vehicles (Third Party Insurance) Act Ch No 295 being to set up a statutory scheme to compensate an injured person who has suffered damages as a result of the use of an insured motor vehicle, or an uninsured motor vehicle driven on a public street or a motor vehicle whose identity in terms of registration, insurance, driver and ownership cannot be established after reasonable enquiry, the defendant Trust cannot, by pleading or otherwise, seek to exonerate itself from liability by insisting on strict proof of the insured status of the subject motor vehicle: the insured status of the subject motor vehicle being of little or no consequence to the Trust insofar as the Trust’s liability to the plaintiff is concerned.
(4)      In the circumstances, the plaintiff is granted leave to re-open his case to call evidence from the defendant’s Claims Manager as to the insurance status of the subject motor vehicle which was identified and pleaded in the plaintiff’s Statement of Claim.
Cases Cited
Imambu Alo v Motor Vehicles Insurance (PNG) Trust Unrep. N1122
Bepiwan Ambon v Motor Vehicles Insurance (PNG) Trust Unrep. National Court Judgment Wabag 1992
Andreas Hara v Motor Vehicles Insurance (PNG) Trust Unrep. National Court Judgment Waigani 1994
Adevu v Motor Vehicles Insurance (PNG) Trust Unrep. SC461 [1994]
Motor Vehicles Insurance (PNG) Trust v Nande Waige & 2 Others Unrep. SC478 [1995]
Wenam Elkum & Another v State [1986] PNGLR 301
Counsel:
A Manase for the Plaintiff/Applicant
PW Smith for the Defendant/Respondent
RULING
8 December 1995
INJIA J:  This is the plaintiff’s application to re-open the trial to allow the plaintiff to call  fresh evidence as to the third-party insurance status of the subject motor vehicle which was involved in an accident at Panguna in 1987.  If the application is successful, the plaintiff intends to call the defendant’s claims manager Mr Paul Butler to give evidence and to produce documents relating to the subject motor vehicle identified as a Datsun 180B Reg. No AE1 997, certificate of insurance No 57980.
The application has been made after the end of the trial and written submissions were already filed.  It appears that the plaintiff discovered the need to call this evidence from the defendant’s submission in which the defendant denied liability on the basis inter-alia, that the plaintiff had failed to prove the current third party insurance status of the subject motor vehicle.
At the trial, the plaintiff produced evidence from Mr Chris Passongo showing that he was the driver of a motor vehicle, a Datsun 120Y Reg. No ABU:331 in which the plaintiff was a passenger.  On 5 November 1987, he drove the vehicle on the Espie Highway in Bougainville and was heading towards Panguna when another vehicle  which he only identified as a Datsun 180B came from the opposite direction downhill, overtook another vehicle and collided into his motor vehicle thereby causing his vehicle to overturn and injuring him and the plaintiff.  Mr Passongo did not identify the insurance and registration number, driver and the owner of the Datsun 180B.  This vehicle is however identified in the plaintiff’s statement of claim (in para 3) as a Datsun 180B Reg. No AEI 997 which was owned by Joe Simu and driven by Salang Senge. And then in paragraph 4 of the Statement of Claim, it was alleged that the vehicle was insured at the material time.  The plaintiff’s action was based solely on the negligent driving of the Datsun 180B and not of Mr Passongo’s motor vehicle.  The defendant, whilst admitting the registration and insurance of Mr Passongo’s vehicle (the Datsun 180Y)  did not cross examine Mr Passongo on the current registration and insurance of the Datsun 180B.  The defendant also did not call any evidence on these aspects.
The issue before me is whether or not I should allow the plaintiff to re-open its case in the circumstances outlined above.  In order to decide this issue, I need to deal with the circumstances which have gave rise to the defendant’s contention which has necessitated the plaintiff’s application.  The defendant’s contention principally stems from the nature of the pleadings, in particular the plaintiff’s pleading as to the insurance status of the subject vehicle (the Datsun 180B) in paragraph 4 of the statement of claim referred to above and the defendant’s defence.  The defendant in its defence pleaded that it did not know and could not admit any part of the statement of claim including paragraph 4.  Consequently, there having been no reply filed by the plaintiff, there was an automatic joinder on the issue, thereby forcing the plaintiff to prove the current insurance status of the subject vehicle as part of its general onus of proving his claim.
In its written submissions on the issue of liability, the defendant relied on Imambu Alo v MVIT (N1122), Bepiwan Ambon v MVIT Unrep. National Court decision given at Wabag in 1992 and Andreas Hara v MVIT Unrep. decision of National Court given on 19/9/94, to support its argument that the onus is on the plaintiff to strictly prove the existence of a current third-party insurance (and registration).  That onus, it was submitted, had not been discharged by the plaintiff in this case, hence the claim should fail.
There are two Supreme Court cases which deal with pleadings of this kind.  In the earlier case of Adevu v MVIT Unrep. SC461 [1994].  The Supreme Court said:
“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.  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 above principle relate to the onus carried by the plaintiff to prove the general “circumstances” of the alleged accident.  In the present case however, we are concerned with a matter of not only mixed fact and law but primarily a matter of law and the application of the above principles depends on the threshold question of who bears the burden of proving the insurance status of the subject motor vehicle.
In MVIT v Nande Waige & 2 Others Unrep. SC478 [1995], the plaintiff, apart from pleading the alleged circumstances of the accident, specifically pleaded (in para. 4) that the subject motor vehicle, a white toyota PMV bus, Reg. No P5100, was at all material times insured against liability under a Third Party Policy of Insurance by the Defendant, pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act.  In its defence, the defendant specifically denied this allegation.  The Supreme Court held by majority decision that the defence as pleaded was proper and in accordance with 0 8 r 21 of the National Court Rules.  The majority said:
“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.”
The present case is clearly distinguishable from the above case in terms of the method of traverse adopted by the defendant in its defence.  In the above case, in relation to para 4 of the plaintiff’s Statement of Claim (which pleaded that the subject vehicle was insured at the material time) the defendant specifically denied this alleged fact whereas in the present case, the defendant pleaded non-admission due to lack of knowledge of the alleged fact.  The two methods of traverse are not and do not mean the same thing.  This is clear from a close reading of 0 8 r 21(2). Order 8 Rule 21 (2) provides that 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.”  The defendant has only two distinct alternative methods of traversing an alleged fact: a denial or statement of non-admission.  As to which method he adopts depends on the nature of the specific fact pleaded in the Statement of Claim.  For instance, it would be considered appropriate for a defendant to deny a fact relating to the circumstances of an alleged event or plead non-admission owing to want of knowledge because the defendant may not or would not be expected to know the circumstances of the accident whereas the plaintiff would be in a position to know those facts.  But it would be wrong or inappropriate for the defendant to plead non-admission owing to lack of knowledge in relation to an alleged matter of mixed fact and law or a matter of law alone which fact the defendant should or ought to know and which matter the plaintiff may not be reasonably expected to know.  This is invariably true where the defendant is a public statutory corporation such as the Motor Vehicles Insurance (PNG) Trust which is required by law to keep a system of records and accounts in respect of the insurance status of all motor vehicles in Papua New Guinea, whether they be insured (and registered) or not and from which information the Trust should or ought to know the insurance status of the vehicle.  Its task would be made far easier when the motor vehicle’s make, model, registration number, owner and driver are specifically pleaded in the statement of claim.
To demonstrate this point, let me briefly go through the scheme of the Motor Vehicle (Third Party Insurance) Act Ch No 25.  One of the main purposes of the Act is inter-alia, to establish a statutory scheme to provide a compulsory insurance cover for third parties whose death or personal injury may be caused by or arises out of the use of a motor vehicle in a wide variety of situations. The Trust may be held liable not only for a motor vehicle which is insured by its owner under the Act but also for an uninsured motor vehicle which is driven on a public street or in respect of a motor vehicle, either insured or uninsured, whose identity cannot be ascertained after due inquiry: s. 54 (1).  Under the Act, the driver or the owner of  the vehicle cannot be sued - a claim can only be brought against the Trust: s. 54 (1).  Where the identity of a motor vehicle driven on a public road which caused the death or personal injury is established, whether or not the vehicle was currently insured and registered and the particular identity of the driver or owner is of little or no consequence to the Trust insofar as its liability to an injured third party who makes out a cause of action in negligence is concerned.  Likewise the liability of a particular driver or owner of the vehicle to the Trust is of no concern to the plaintiff (apart from the plaintiff establishing negligence on the part of the driver or owner).
Another related purpose of the Act is that the Act establishes a system of compulsory and concurrent registration and insurance of all motor vehicles in the country (s. 50) in a systematic and regulatory manner.  It provides for a system of issue of insurance cover or certificate of insurance upon payment of the prescribed premium: s. 49.  It requires the Trust to keep proper records and accounts in such form as approved by the Insurance Commissioner: s. 44.  In the event of a motor vehicle accident resulting in death or bodily injury, it requires the owner or driver to notify the Trust of, inter alia, the full circumstances of the accident.  It is a criminal offence not to do so: s. 53.  The Act goes to the extent of protecting confidentiality of such information by making such information not available for discovery in any legal proceedings: s. 53 (3).  Further, the Act provides for a system of requiring an injured person, etc to give notice of the claim within 6 months of the accident: s. 54 (6).  The notice would no doubt state the particulars of the subject motor vehicle, the relevant circumstances of the accident and the nature of the injury sustained.  No action for damages can be instituted in court without the pre-requisite notice being given.  All these and other provisions exist to ensure that the Trust keeps an accurate record or account of its insurance scheme and to ensure that the Trust is adequately informed in advance of the nature of the impending claim.  All these provisions accord with ordinary business practices and customs of the insurance industry.
In the light of these statutory provisions in particular ss. 44, 53 and 54 (6) the Trust should know or ought to know the insurance status of the motor vehicle whose make and model, registration number, driver and owner is particularised in the plaintiff’s statement of claim.  It would be wrong or inappropriate for the Trust to say, by pleading or otherwise, “Oh! We don’t know whether or not the motor vehicle, Datsun 180B Reg. No A1E 997, owned by Joe Simu and driven by Salang Senge on the Espie Highway on 5 November 1987 was insured.  We cannot admit it.  You prove it.” It should not come as a surprise to the Trust now that the plaintiff has identified the insurance certificate number, No 57980, for this very same vehicle.  The defendant’s defence therefore as pleaded in its defence discloses no reasonable defence, it is an inappropriate method of traversing the fact alleged in para. 4 of the plaintiff’s statement of claim, it causes unnecessary prejudice to the plaintiff and it may as well constitute an abuse of the court’s process: Order 8 Rule 27.  I would also think that such a pleading is inappropriate to the nature of the plaintiff’s cause of action under the Act.  This court has wide discretion to strike out such pleadings at any stage of the proceedings on its own initiative: Order 8 Rule 27.  For reasons I have given, I strike out the defendant’s defence insofar as it relates to para. 4 of the statement of claim.  Consequently, I also reject those part of the defendant’s written submissions which relate to the issue of insurance.
In arriving at this decision, I have had regard to the general principles enunciated in various cases by this court and the Supreme Court in relation to the onus and standard of proof borne by the plaintiff in civil cases generally and I accept them.  I also agree with the general principle that a plaintiff cannot succeed in his claim under the Motor Vehicles (Third Party Insurance) Act unless he brings himself within the provisions of the Act - by his pleadings and by the evidence he produces in support of the pleadings.  At the same time however, we must not be so pre-occupied with the strictures of civil procedures relating to pleadings and evidence that we loose sight of the purposes of the Act, some which I have outlined above, and the purpose of pleadings. Pleadings must be appropriate, meaningful and designed to achieve substantial justice according to the purpose of Act.  I cannot put it any clearer than how Brunton AJ put it in Wenam Elkum & Another v The State [1988-89] PNGLR 662 at p.665 said:
“In such circumstances, not to admit facts which could reasonably be admitted, or to deny facts which could reasonably have been admitted, is an abuse of the court’s process.  One can only reiterate the words of the Deputy Chief Justice in Hornibrook Constructions, at 302:
‘The purpose of pleading is to set out clearly the issues; not only to inform the other party but the court as well.’
This principle should be observed both in its letter and its spirit.  Pleadings are not devices which those with long pockets can manipulate and gain unfair advantages over their adversaries.  To do so is to abuse the process of the court...”
Returning now to the main issue, it is clear to me that the evidence proposed to be called if the case were to be re-opened is evidence which the plaintiff is not reasonably expected to know.  It is evidence which the defendant as a public statutory institution is required by law to possess and is not only a matter of mixed fact and law but primarily a matter of law.  The onus of introducing this evidence has been inappropriately shifted to the plaintiff by the defendant’s pleadings. It is also evidence which the defendant could have produced if it thought the evidence was vital for its defence.  In any case, it is evidence which is of little or no consequence to the defendant’s liability to the injured plaintiff under the Act.  I am inclined to grant the application.
I note that both counsels made submissions based on the six-seven tests set out by McDermott J in Parao Tunboro v MVIT [1984] PNGLR 273.  There was some dispute between counsels as to whether the plaintiff/applicant must meet all six-seven tests or whether it is sufficient for the plaintiff/applicant to meet just one or some of them.  My view is that His Honour never intended that these tests should be applied severally or conjunctively.   Nor did His Honour purport to exhaustively set out the tests.  He was merely setting out some relevant factors which the court needs to consider in deciding the issue.  For my part, I think all the six-seven tests taken together underlie one basic factor: the nature and importance to the parties of the evidence sought to be led if the case were to be re-opened.  I find this factor to be the over-riding consideration and that is the basis of my ruling today.
Costs of this application shall be in the cause.
Lawyer for the Plaintiff/Applicant: Pato Lawyers
Lawyer for the Defendant/Respondent: Young & Williams