PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea

You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2019 >> [2019] PGNC 78

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Kupo v Beilby [2019] PGNC 78; N7782 (20 March 2019)


N7782

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS No. 237 OF 2018


BETWEEN:
WILLIE KUPO
Plaintiff


AND:
WAYNE BEILBY as the General Manager
of Tower Insurance (PNG) Limited
First Defendant


AND:
TOWER INSURANCE (PNG) LIMITED
Second Defendant


Waigani: Thompson J
2019: 18 & 20 March


INSURANCE - House Policy Of Insurance - Loss by fire – Whether property unoccupied - Material non disclosure - No duty on insurer to cancel inspect property before accepting risk - Plaintiff's claim limited to what is pleaded - No evidence to be given of claim not pleaded - Party unable to raise new issues of law and fact not pleaded - Party unable to raise new issues after close of case.


Counsel:


Mr C Gagma, for the Plaintiff
Mr M Goodwin & Mr T Ivano, for the Defendants


20th March, 2019


1. THOMPSON J: The Plaintiff was the owner of a property at Lot 4, Section 264, Hohola, which comprised a block of land with a house on it. The purchase of the property was financed by a loan from Bank South Pacific, which required as a condition of finance that adequate insurance cover be in place at all times.


2. The Plaintiff took out insurance cover over the property with the Second Defendant. The policy was incepted on 2 February 2012, and renewed on 2 February 2013 for a further 12 months. The premium was paid annually, and the renewal premium was paid by the Plaintiff to the Second Defendant ("the insurer") on 22 February 2013, as evidenced by his bank deposit slip. On 20 February 2013, the house was burned down in a fire.


3. The Plaintiff submitted a claim on 1 March 2013. By a letter dated 2 July 2013, the insurer denied indemnity for the claim. Essentially, two reasons were given:


(a) The house had been unoccupied for more than 30 consecutive days, so that cover under the policy was suspended.

(b) The Plaintiff failed to disclose material facts before taking out the insurance, namely, that there had been an earlier dispute with some highlanders over the title to the property, and that the house was in a significant state of disrepair with many defects.

4. The insurer said that if the Plaintiff had disclosed these facts when first applying for the cover, it would not have offered cover. The insurer said that it had therefore elected to avoid the policy back to inception.


5. It is not known what the Plaintiff did between 2013 and 2016 when he instructed a lawyer to issue a letter of demand to the Defendants, or between 2016 to 2018 when the proceedings were issued. It is not known if the house was repaired or rebuilt, or if another building has been built on the land.


6. The Plaintiff issued these proceedings on 20 March 2018 against the Defendants, for failing to payout on a claim made under the House Insurance Policy. The Defendants took no issue with the fact that the premium was paid after the loss had already occurred.


7. When the hearing commenced, the Plaintiff's lawyer sought leave to tender a current certificate of insurance said to be issued for the property in 2018. The Plaintiff was not called to identify the document, and the Defendants objected to it. In the absence of the document being properly identified, the absence of evidence that the SSP was aware that the house had been burned down in 2013, and the absence of any evidence as to what had happened with the property since 2013, the document could have no probative value, and so its tender was refused.


The Trial


8. The trial proceeded in accordance with earlier directions, by way of affidavit evidence, subject to the right of cross-examination. The Plaintiff tendered his own affidavit filed on 27 March 2018. The Defendants tendered three affidavits of George Maino, Mark Keaney and Phil Francis all filed on 11 October 2018.


9. The Plaintiff briefly cross-examined Phil Francis, but there was no other cross-examination by either party. After the conclusion of each party's evidence, the case was closed. The Defendants had filed written submissions over a week before the trial. The Plaintiff's lawyer had not filed any submissions. The Plaintiff's lawyer proceeded to make oral submissions, the Defendants' lawyer made oral submissions, and the Plaintiff's lawyer made oral submissions in reply.


The Plaintiff's Written Submission


10. After this was all concluded, the Plaintiff's lawyer then handed up a written submission, and gave a copy to the Defendants' lawyer. There was no opportunity for the Defendants' lawyer or this Court to read or comment on the written submission. It was therefore only later that the contents of the submission were read.


11. A major part of the Plaintiff's written submission would have taken the Defendants' lawyer completely by surprise. The Plaintiff raised a number of issues which were not pleaded in the statement of claim, were not given in evidence, and were not the subject of any cross-examination. They were not raised during the hearing or oral submissions.


12. The issues were raised only after the close of the case, when the Defendant had no opportunity to respond to them. This would be trial by ambush, if it was allowed.


13. The Plaintiff's lawyer did not apply to re-open his case, or for leave to amend his statement of claim to include these issues, either before the trial concluded, or at all. If he had, and if leave had been granted, the trial would have had to be aborted, and the pleadings would have had to start all over again.


14. A Plaintiff cannot be allowed to raise new issues in a mere submission, after the case has closed.


15. First, the rule in Browne v Dunn is very clear - any matter upon which it is proposed to contradict the evidence in chief of a witness, must normally be put to him so that he may have an opportunity to explain the contradiction. Failure to do so may be held to imply acceptance of the evidence in chief.


16. Here, the Plaintiff's lawyer did not put most of the contents of his submission to the Defendants' witnesses, and he did not call any evidence to contradict those witnesses' evidence.


17. Secondly, the Supreme Court in cases such as PNGBC v Jeff Tole (2002) PGSC 8 has confirmed that if a party does not properly plead his claim with particulars, he cannot give evidence of what has not been pleaded, and there is no basis or foundation for making any award on that claim.


18. The submission raises an issue as to Section 31 of the Insurance Act. This was not pleaded in the statement of claim or contained in the Plaintiff's affidavit evidence.


19. It also raises an issue as to Section 47 of the Insurance Act. This was also not pleaded in the Statement of Claim or contained in the Plaintiff's evidence or put to any of the Defendants' witnesses. Further, it is simply factually wrong, as the policy document clearly sets out the Defendants internal complaints procedure on its last page.


20. It also raises an issue as to Section 5 of the Insurance (Miscellaneous Provisions) Act. This is completely irrelevant when there is no insurance money payable, as in this case, and in any event, it was not pleaded in the statement of claim or contained in the Plaintiff's evidence or put to the Defendants witnesses.


21. If the Plaintiff wished to allege that Sections 31 and 47 of the Insurance Act and Section 5 of the Insurance (Miscellaneous Provisions) Act were breached or made the Defendants' case not maintainable, the sections of the statutes and the facts giving rise to the alleged breaches should have been pleaded in the statement of claim and Reply.


22. Under Order 8 Rule 32, a Plaintiff must give the necessary particulars of any claim pleaded by him. In particular, where the Plaintiff has pleaded negligence, as the Plaintiff has done here, or breach of statutory duty, the Plaintiff must give particulars of the matter pleaded. The particulars shall be a statement of facts on which the Plaintiff relies as constituting the negligence or breach of statutory duty. If the Plaintiff relies on more than one, the particulars must state separately each negligent act or breach of statutory duty on which he relies.


23. Under Order 8 Rule 8 of the National Court Rules, a pleading must contain all the material facts. Under Rule 10, if a document is referred to, the effect of the document must be stated. Under Rule 14, a Plaintiff must plead specifically in a Reply, any matter which he alleges makes the defence or other case of the Defendant not maintainable, or which if not specifically pleaded, may take the Defendant by surprise, or which raises facts not arising out of the defence.


24. The Plaintiff did not file a Reply. His only pleading was a statement of claim, which did not contain any pleading of specific facts or specific documents relating to those sections of the statutes. It therefore also did not contain a specific pleading that by virtue of these statutes and facts, the defence was not maintainable. As a result, the matters raised in the submission were matters which were not pleaded, which raised facts not arising out of the defence, and which took the Defendants by surprise.


25. A failure to properly plead these issues means that the Plaintiff will not be able to rely on them - see Vian Guatal v The State (1981) PNGLR 230 and Manorburn Earthmoving v The State (No.2) (2008) PGNC 14.


26. The whole trial and oral submissions were conducted and concluded on the basis of what the Plaintiff had pleaded in his statement of claim, and had said in his evidence. The case was not re-opened and the statement of claim was not amended.


27. The Plaintiff's written submission must therefore be seen on the basis that it raises issues of fact and law which were not pleaded and which are therefore unable to form part of his case. In the circumstances, I disregard the Plaintiff's written submission on these issues, insofar as it raises issues of fact or statutory breaches not pleaded in the statement of claim, and which have no basis in the pleadings or evidence.


The Pleadings


28. I therefore turn now to the pleadings.


29. The Plaintiff did not specifically deny in his pleadings or evidence that he received the policy document or renewal certificate, and did not specifically plead that he had not received them. The Defendants were therefore not required to make any pleading on this issue, in their defence.


30. The Plaintiff did not give or seek to give evidence on these issues, and did not apply for leave to amend his pleading to refer to them. He was therefore restricted to claiming and giving evidence of the matters pleaded in his statement of claim.


31. In his statement of claim, the Plaintiff has pleaded breaches of the contract of insurance, and negligence by the Defendants.


32. First, in relation to the First Defendant, he is not the insurer, he was only its employee, and the Plaintiff did not enter into any contract with him. No grounds are pleaded for showing the basis of any cause of action for contract or duty of care between the Plaintiff and the First Defendant. As no cause of action is pleaded or evidence produced against the First Defendant, he was wrongly named as a party to the proceedings, and there can be no claim against him.


33. In relation to the Second Defendant, the Plaintiff did not identify any sections of the statutes which he alleged were breached. He did not plead the particulars required by Order 8 Rule 32 relating to negligence. Following PNGBC v Tole, unless there is foundation in the pleadings, no evidence of or damages for matters not pleaded, can be allowed.


34. His pleading included an ambiguous reference to the insurer failing to conduct an investigation. It is not clear what was meant by this. If he intended to refer to an inspection before the policy was issued, it was not in dispute. The only dispute was the implied allegation that the insurer had a duty to carry out such an inspection. No particulars of any such duty were pleaded. If he intended to refer to an investigation after the fire, he did not rebut the Defendants' evidence of the investigations carried out by the Police, the Fire Service, and its own Investigator, Mark Keaney, on which the insurer relied.


35. In relation to the pleading of negligence, the statement of claim did not plead the statutory or common law basis for the alleged duty of care, thereby breaching Order 8 Rule 32. No evidence was or could have been given in relation to this non-pleaded part of the claim, and it therefore could not be made out against the Second Defendant.


36. The Plaintiff did plead a breach of the contract of insurance by the Second Defendant.


37. The only particulars pleaded were that the insurer failed to pay his claim when it was covered by the policy because the exclusionary conditions relied on by the insurer, were not contained in the policy.


The Evidence


38. The insurer gave evidence and identified the policy through its then National Claims Manager, Phil Francis. He said that on inception, the policy was issued and sent to the Plaintiff together with the certificate of insurance, to the address he provided, and that the terms of the policy were not subsequently changed in any way. He said that the insurer did not explain the terms of the policy to the Plaintiff before issuing it. He said that if the insured had any queries about the policy terms, he could ask the insurer to explain them, and they would do so. If the insured did not accept the policy terms or was not satisfied with their explanation, the
insured could cancel the policy on 14 days notice. The Plaintiff did not raise any queries, and did not cancel the policy.


39. The Plaintiff did not produce a policy document which he said was different to the one produced by the Defendant. He produced the certificate of insurance, which said on it that the insurance was " ... subject to our House Policy terms and conditions". He did not rebut the insurer's evidence of the tendered policy document which contained the House Policy terms and conditions.


40. The Plaintiff pleads that the grounds relied on by the insurer to deny indemnity, were not contained in the insurance policy. His lawyer also submitted, but had not pleaded, that the policy terms should have been explained to the Plaintiff.


41. The basis of the submission is unclear. The Plaintiff did not identify any clause in the policy which he did not understand, and which he says should have been explained. He was able to, and should have, read the policy. In the absence of vitiating factors, a person who accepts an offer in a written document by signing it, is bound by all the terms of the document, whether or not he had read them (Bank South Pacific v Tingke (2014) PGSC 49). Similarly, the Plaintiff cannot say, and in fact did not say in his pleadings or evidence, that he did not read the policy, it was not explained to him, and so it is not binding on him. This was a mere submission, unsupported by a pleading or evidence.


42. The Plaintiff did not specifically deny in either his pleadings or his evidence that he received the policy document on inception, and he did not rebut the insurer's evidence that it had been issued and sent.


43. The insurer has therefore shown on the balance of probabilities that the policy document was sent to the Plaintiff on inception, and the policy terms were not subsequently varied on renewal.


The Policy Terms


44. The only policy document in evidence was the House Policy produced by the insurer. At the start of the policy, on page 3, the opening paragraph is headed "what you must tell us". It sets out that the insured has some important obligations, and the insurer must receive all relevant information. The insured must tell the insurer everything he knows or could reasonably be expected to know, that may influence the insurer's decision to insure the property. If the insurer is not told, it has the option to decline a claim.


45. The policy goes on to say that the insurer has the option to avoid the policy, but that is only from the date of any change in circumstances or information. No change of circumstances is alleged here, so this part is not applicable.


46. On page 5, the policy sets out General Exclusions. The insured is not covered for loss or damage caused by or arising from, inter alia, gradual deterioration and neglect of maintenance.


47. On page 6, the policy goes on to say that if the perils listed below are caused by a matter set out in the Exclusions, then the policy will insure the loss or damage directly caused by that peril. The onus is on the insurer to prove that the loss comes within the Exclusion (see Agmark Pacific Ltd v Queenland Insurance (PNG) Ltd (1992) PNGLR 454).


48. In relation to the exclusion, there is no evidence that the fire was directly caused by a neglect of maintenance. Rather, the evidence is that a neglect of maintenance led to the house being unable to be occupied, which in turn made it more susceptible to trespass, being damaged by vandals, and at risk of the type of actions which are likely to result in a fire.


49. There was evidence of the poor state of repair of the house, which made it almost uninhabitable. I do not accept the Plaintiff's submission that only minor repairs were required. In his interview with Mr Mark Keaney, the Plaintiff stated that he was unable to tenant the house because it needed significant maintenance, there were no security alarms or security lights, and that he had been quoted K150,OOO to fix up the house.


50. Nevertheless, there was no evidence that the condition of the house actually caused the fire, such as by faulty electrical wiring. Rather, the evidence was that the condition of the house indirectly led to the fire, because it left the house unoccupied and vulnerable to trespasses, vandals, and so on.


51. As the listed peril of fire was not directly caused by gradual deterioration or neglect of maintenance, the provision for removal of the General Exclusion is not applicable. The General Exclusion was still applicable, if the fire was caused by or arose from general deterioration or neglect of maintenance.


52. However, the insurer has not relied on this part of the Exclusion to deny indemnity. Instead, the insurer has said that the Plaintiff failed to disclose the gradual deterioration, neglect of maintenance and significant state of disrepair of the house. The insurer says that these were material facts and information which would influence its decision to insure the house. The insurer says that if it had known that the house was in such poor condition, it would have assessed the risk of loss as being too high, and would not have insured the property.


53. The insurer went on to say that as a result of this material non-disclosure, it elected to avoid the policy from inception. However, because the opening wording of the policy refers to a change in circumstances or information, which was not the case here, then the insurer's only option was to decline the claim.


54. The insurer next pleaded that the Plaintiff had also failed to disclose the material fact that the property was unoccupied for more than 30 consecutive days. On page 9, the policy provides that if the insured had not told the insurer that the house will be unoccupied for more than 30 consecutive days, the policy is automatically suspended.


55. Again, the insurer went on to say that as a result of this material non-disclosure, it elected to avoid the policy from inception. However, that is not an option provided by this part of the policy. This part provides that the cover under the policy is automatically suspended, and will not resume until the house is occupied again.


56. It is arguable whether or not the house was occupied after inception. No one lived there all the time. The house was not properly furnished, and the security was poor with the lock on the gate not working and there was a hole in the fence. Despite this, at different times, some of the Plaintiff's relatives camped inside. If the fire had occurred within the first 30 days after inception of the policy, the insurer may not have been able to rely on this provision.


57. However, the fire occurred more than a year after inception of the policy. The Plaintiff's own evidence was that from 3 months before the fire, no one had stayed in the house, and the small amount of furniture had been removed. He told Mark Keaney that the house sat there empty for 3 months, with no power and nobody in it.


58. The insurer therefore established that the house was unoccupied for more than 30 consecutive days, without any notification to the insurer by the Plaintiff. As a result, the cover was automatically suspended. It was not in place at the time of the fire. The insurer was entitled to rely on this provision, to deny indemnity for the claim.


59. Next, in the written submission, the Plaintiff challenges the credibility of the affidavit evidence of George Maino and Mark Keaney. This was never raised during the trial. The Plaintiff had the opportunity to cross-examine both witnesses on their affidavit evidence, but did not do so. The Plaintiff called no evidence to rebut their evidence. Again, the rule in Browne v Dunn means that, having failed to challenge or rebut the witnesses evidence during the hearing, the Plaintiff has no basis for challenging their credibility.


60. Further, in relation to the interview with the witness Mark Keaney, the Plaintiff's submission is factually incorrect. The Plaintiff says that he was not told the purpose of the interview, and was not given the opportunity to confirm the accuracy of the transcript before it was tendered into evidence.


61. On the first point, the Plaintiff is not an unsophisticated villager. He is an experienced businessman. At the time of the insurance, he was a senior executive with Oil Search Ltd earning nearly half a million kina per year, and he was the owner of several properties. After the house was burned down in a fire, and his insurer arranged for him to be interviewed, he would obviously know that the purpose of the interview was to establish the circumstances leading up to the fire.


62. In relation to the second point, the transcript was annexed to the affidavits of Mark Keaney and Phil Francis, which were both filed on 11 October 2018. The Plaintiff had several months before the trial to challenge its accuracy, but did not do so. He did not give evidence that the transcript was inaccurate. He did not challenge its accuracy during the trial. The Plaintiff had the opportunity to cross-examine Mark Keaney on the accuracy of the transcript, but did not cross-examine him at all. The Plaintiff cannot now be allowed to challenge its accuracy by way of a mere submission, with no basis in the pleadings or evidence.


63. Similarly, in relation to the affidavit of George Maino, the Plaintiff had the opportunity to cross-examine him on his affidavit evidence during the trial, but did not do so. The Plaintiff did not give evidence to rebut George Maino's evidence. He cannot be allowed to challenge it by way of a mere submission, with no basis in the pleadings or evidence.


64. This is of course a separate issue from the question of how much weight is to be attached to the witness' evidence. The Court will always assess the weight and credibility of a witness' evidence, taking into account whether or not their credibility has been weakened by cross-examination or rebutting evidence. In this case, there was no cross-examination or rebutting evidence from the Plaintiff.


65. The only issue raised in the submission which was raised during the trial, was the issue of whether or not the Second Defendant had conducted an investigation of the property before it agreed to insure it.


66. The insurer never alleged that it had conducted such an investigation. On the contrary, the insurer's evidence was that for properties worth less than about K1 million, they had so many hundreds of properties to insure that it was not practical to conduct such investigations. Mr Francis said that this is why they rely on the insured providing them with truthful information as to any matter which would be relevant to the cover, including the condition of the property.


67. As referred to earlier, the Plaintiff was an experienced businessman. His own evidence was that he bought this property as a longer term investment, despite its condition, because he believed the land would become more valuable as the LNG project was near it. He would have known or reasonably ought to have known, that the condition of the property was relevant to its insurance.


68. The Plaintiff did not cite any authority for the proposition that the insurer had a duty to investigate the property before accepting the risk. He referred to Alotau Enterprises v Zurich Pacific Insurance (1999) PGNC 107. I believe this National Court decision was overturned on appeal to the Supreme Court, in an unreported decision. But in any event, the case was not authority for that proposition, and is distinguishable on its facts. In that case, the increased risk of the property was known by the insurer's employee who had inspected the premises, and his knowledge was imputed to his employer, the insurer. In the present case, no inspection was carried out, and the insurer had no knowledge of the condition of the property.


69. I am unaware of any case authority or statute which imposes a duty on an insurer to carry out such an inspection. Indeed, the standard text by Hardy Ivamy on General Principles of Insurance Law, 6th Edition, quotes from the case of London General Omnibus Co. Ltd v Holloway (1912) 2KB72, where the Court said:


"The person seeking to insure may fairly be presumed to know all
the circumstances which materially affect the risk and generally is .
. . the only person who has the knowledge; the underwriter whom
he asks to take the risk, cannot as a rule know, and ... rarely has
either the time or the opportunity to learn by inquiry, circumstances
which are or may be ... material to the ... acceptance ... of the risk

..."


70. This is consistent with the insurer's evidence here, that because it insures hundreds of houses, then unless the house is worth more than about K1 million, it is not practical for the insurer to carry out investigations into every property. The Plaintiff has not shown that the insurer had a duty to investigate the property before accepting the risk.


71. It was not in dispute that the insurer did not carry out an investigation into the condition of the Plaintiff's house before accepting the risk. The insurer relied on the Plaintiff's obligation to disclose all material facts and information, and was entitled to do so. The Plaintiff has not established that the insurer breached the contract or any statute.


72. The next issue in the written submission is whether or not the insurer explained the terms and conditions to the Plaintiff, and ensured that he understood them. The Plaintiff cited no statute or case authority for the proposition that an insurer had a duty to do so. The insurer's evidence was that if the Plaintiff had asked for any explanation or clarification, they would have given it to him, but he didn't ask. The Plaintiff was always at liberty to seek advice from the insurer, or from any independent source such as an insurance broker or lawyer. He did not do so.


73. In any event, this issue was not pleaded in the statement of claim or contained in the Plaintiff's evidence, and so the Plaintiff cannot be permitted to raise it by way of a mere submission, not founded on any pleadings or evidence. I therefore disregard the Plaintiff's submission on this issue, as it has no basis in the Plaintiff's pleadings or evidence.


74. In relation to the substantive issue that the property was unoccupied for 30 consecutive days without notice to the insurer, I do not accept the Plaintiff's submission that the house was never left unoccupied, and that this was confirmed by the Plaintiff in the interview of Mark Keaney. The transcript of the interview is quite clear, and in it, the Plaintiff says that the house was empty and unoccupied with no one in it, for 3 months before the fire.


75. Even leaving aside the corroborating evidence of George Maino, the Plaintiff's evidence was sufficient by itself to establish unoccupancy for over 30 consecutive days prior to and at the time of the fire.


76. The insurer had also relied on the failure of the Plaintiff to disclose a prior dispute over title to the property, which it said made it possible that the disputants might damage the property. However, the evidence of a realistic threat from the previous disputants was weak, and was insufficient for the insurer to show that this was a material fact which should have been disclosed.


Conclusions


77. The preceding matters can be summarized in the following findings:


(a) The house was insured against the peril of fire under a House Policy, which was sent to the Plaintiff on inception in 2012.


(b) The House insurance was renewed in 2013, without any terms being changed.

(c) The insurer was not under a duty to, and did not, inspect the house before accepting the risk.

(d) The house burned down by fire during the renewed policy period.

(e) The poor condition and periodic unoccupancy of the house were material facts known to the Plaintiff, which would influence the insurer's decision to insure the house.

(f) The Plaintiff failed to disclose these material facts to the insurer.

(g) The insurer would have been entitled to decline the claim
for material non disclosure, if cover had been in place at
the date of the fire.

(h) At the date of the fire, the house had been unoccupied
for more than 30 consecutive days.

(i) The cover under the policy was automatically suspended 2 months before the fire.

(j) The house was still unoccupied and the cover was still suspended at the date of the fire.

(k) The Plaintiff therefore failed to prove on the balance of probabilities that the insurer breached the contract of insurance by not paying his claim.

78. In relation to loss and damage, it is not possible to see the loss which is claimed over and above the value of the house. There were no contents, and there was no loss of income, as the house was not tenanted. The loan and mortgage taken out by the Plaintiff with BSP to purchase the property, was required to be repaid regardless of the fire, and the repayments were not made from income derived from the house, because there was no income.


79. Further, apart from the value of the house, the matters claimed by the Plaintiff are consequential losses, which are not covered by the House insurance.


80. There was no evidence in support of the claim for general damages for stress and humiliation. It is unlikely that such damages could be awarded for breach of a commercial contract. Even if they were, cases such as the Central Bank of PNG v Gabriel Tugiau (2009) PGSC 50 have established that in order to recover such damages, the Plaintiff has to show more than ordinary hurt feelings. He must properly plead the loss and damage with particulars, and then establish it by evidence at the trial. In the absence of such evidence, there is no basis on which general damages could be assessed.


81. The Plaintiff did not plead this part of the claim with particularity, and did not call any evidence to support it. There is therefore no basis on which general damages could be assessed.


82. Notwithstanding this, it is not necessary to make findings on the claims for loss and damage, in view of the findings on liability. Based on those findings, I make the following orders:


  1. The First Defendant has been wrongly joined as a party, and the claim against the First Defendant is dismissed.
  2. The claim against the Second Defendant is dismissed.
  3. The Plaintiff is to pay the First Defendant's costs, to be agreed or taxed.
  4. The Plaintiff and Second Defendant are each to pay their own costs.

_________________________________________________________
Gagma Legal Services: Lawyer for the Plaintiff
O’Briens Lawyers: Lawyer for the Defendants






PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2019/78.html