SC1194

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 57 OF 2011

BETWEEN:

WAINE KEROWA
Appellant

AND:

HARGY OIL PALMS LIMITED
Respondent

Waigani: Injia CJ, David & Makail JJ.
2012: 31st August & 03rd September

SUPREME COURT APPEAL – Pleadings – Amendment of – Appeal against refusal of grant of leave to amend pleadings – Amendment of statement of claim – Grounds of – Deficiency, ambiguity and vagueness of pleadings – Correction of error - Exercise of discretion – Grounds of refusal – Irrelevance – Prejudicial – Delay adverse to defence – No reasonable explanation for delay – Whether discretion properly exercised – National Court Rules – O 8, r 50.

Cases cited:

The Papua Club -v- Nusaum Holdings Limited (2002) N2273
Michael Kewa -v- Elias Kombo (2004) N2688
Komboro -v- MVIT [1993] PNGLR 477
Eki Investments Limited -v- Era Dorina Limited (2006) N3176
Luke Kyokal Niap -v- PNG Harbours Limited (2009) N3672

Counsel:

Mr. M. Saka, for the Appellant
Mr M Mukwasipu, for the Respondent

03rd September, 2012

JUDGMENT

1.	BY THE COURT: The appellant appeals against the decision of the National Court refusing leave to amend pleadings. He sought leave after close of pleadings but before trial to amend the statement of claim to first add the name of his business entity called Kikuwa Pundi Trading, secondly, correct error in the date of accident, thirdly, add more details to the deficiency or ambiguity in the particulars of negligence and also damages. The primary judge held that:

a)	the motor vehicle that was damaged in the accident was owned and used by the appellant to run a PMV business and it was not necessary and relevant to grant leave to amend the pleadings to include the business name. In any case, there was no evidence to show that the appellant was trading under the name of Kikuwa Pundi Trading. 

b)	the proposed amendments would not change the scope of the appellant's claim and the respondent's defence. 

c)	there was a delay of four years and the appellant did not satisfactorily explain the delay in bringing the application for leave to amend.

d)	the proposed amendments will prejudice the respondent in its defence to the claim.

Brief Facts

2.	The appellant alleged that he operated a PMV business using a Hino truck. On 09th September 2004 at about 11:00 am at Silane village outside Bialla, the respondent's motor vehicle collided with his truck. He alleged that the driver of the respondent's motor vehicle was negligent when he drove on the wrong side of the road and at high speed. As a result of the collision, his truck was severely damaged and required repairs. It was grounded for one year and four months. He demanded the respondent to meet the costs of repairs and it refused. For these reasons, he sought damages against it for costs of repairs and associated costs including loss of business income from the PMV business.

Issue

3.	The issue before us is whether the primary judge properly exercised his discretion when he refused leave. The National Court has power under O 8, r 50 of the National Court Rules to grant leave to amend pleadings at any stage of the proceedings. The power to grant leave is an exercise of judicial discretion and must be exercised based on proper principles of law. Both counsel have succinctly set out the relevant principles on amendments in their respective submissions and we do not propose to restate them here suffice to say that the onus is on the appellant to establish that the proposed amendments are necessary to enable the Court to determine the real question in controversy between the parties, to correct any defect or error in the proceedings and that the amendments will not prejudice the other party: The Papua Club -v- Nusaum Holdings Limited (2002) N2273, Michael Kewa -v- Elias Kombo (2004) N2688, Komboro -v- MVIT [1993] PNGLR 477, Eki Investments Limited -v- Era Dorina Limited (2006) N3176 and Luke Kyokal Niap -v- PNG Harbours Limited (2009) N3672.

Addition of business name

4.	With respect to the addition of the name Kikuwa Pundi Trading to paragraphs 1 and 3 of the statement of claim, the appellant pleaded that he is the owner of the truck and was using it to operate a PMV business. He submitted that because he is claiming damages for loss of business income, it is necessary that the business name be included in the statement of claim so that there is foundation in the pleadings to claim it. The respondent defended the decision of the primary judge. It submitted that the business name is not relevant and in any case, there is no evidence to verify that the appellant was operating a PMV business under the name of Kikuwa Pundi Trading.

5.	We consider that if the truck was damaged in the accident, as the owner, he is entitled to bring an action to claim damages in his personal capacity. If he was using it to run a PMV business, he may also claim loss of business income. In this regard, we note he has not only claimed it but has sufficiently set out its particulars at paragraph 7 of the statement of claim. In our view, the primary judge's refusal to add the business name does not prejudice his claim for recovery of costs of repairs and loss of business income. They are intact and all he has to do is to provide appropriate evidence to prove them at trial. For these reasons, we are not satisfied that his Honour fell into error when he refused leave to add Kikuwa Pundi Trading in the statement of claim. This ground is dismissed.

Correction of date of accident

6.	As to the date of accident, the appellant alleged at paragraph 4 of the statement of claim that the accident occurred on Saturday 09th September 2004. He submitted the correct date is Saturday 18th September 2004. He seeks to correct it. He submitted that the primary judge erred in refusing leave to amend it because when he held that it would prejudice the respondent, he failed to specify the prejudice. He further submitted the date is crucial to the entire claim and his Honour should have allowed the amendment. The respondent submitted first, that the appellant failed to provide evidence to support the amendment. Secondly, it will be prejudiced by it because of the delay and that it filed a defence denying the allegation that the accident occurred on Saturday 09th September 2004. If the date is changed, it will deny it a fair trial on the issue of liability.
 
7.	We are not satisfied that the proposed amendment will prejudice the respondent. We consider that the date of accident is a material fact and also an essential allegation of fact to the dispute between the parties. In our view, correcting the date would not prejudice the respondent. On the other hand, correcting it will benefit both parties. It will enable them to know the correct date of the alleged accident so that the issue of liability can be determined once and for all. In addition, his Honour did not specify how the delay and amendment will prejudice the respondent. 

8.	Furthermore, the respondent did not specifically deny the allegation that the accident occurred on Saturday 09th September 2004. It also did not plead that the accident occurred on a different date. If leave is granted and date is changed, it will still have the opportunity to either deny or admit it. It can do that by filing an amended defence. 

9.	We are also of the view that the amendment did not require supporting evidence to substantiate it as those are matters for trial. For these reasons, we are satisfied his Honour erred when he refused leave to amend the date of accident. This ground is upheld.

Particulars of negligence

10.	We turn to the ground of appeal in relation to the addition of more details to the particulars of negligence. The appellant submitted that the proposed amendments would provide more details to the deficiency or ambiguity in the particulars of negligence. That is to say, they will provide additional facts in relation to the cause of the accident. In opposing this ground, the respondent submitted that his Honour correctly refused leave because the proposed amendments would not change the scope of the appellant's claim and the respondent's defence. 

11.	We have perused the pleadings at paragraph 4 of the statement of claim and the proposed amendments at paragraph 5 of the draft amended statement of claim and are of the view that the pleadings in the original statement of claim are neither deficient nor ambiguous. On the other hand, they are sufficient because they clearly outline the alleged cause of the accident. That is to say, the driver of the respondent's motor vehicle was negligent, in that he drove the motor vehicle at high speed and on the wrong lane. As a result, when he saw the appellant's truck approaching, it was too late to avoid it and ran into it. 

12.	In other words, the proposed amendments will not substantially change the allegations of fact relied upon by the appellant to prove negligence against the respondent. For these reasons, we are of the view that his Honour was correct in holding that the proposed amendments in relation to the particulars of negligence will not change the scope of the appellant's claim and the respondent's defence. This ground is dismissed.

Categories of damages

13.	Finally, the appellant seeks amendment to paragraph 8 of the statement of claim and addition of two new paragraphs to the existing pleadings on damages. These proposed amendments are set out in paragraphs 11 and 12 of the draft amended statement of claim. He seeks to add general damages for mental distress, frustration and hardship. He submitted that the proposed amendments seeks to clarify any deficiency or ambiguity by setting out the various categories of damages such as general damages, special damages, loss of income and general damages for mental distress, frustration and hardship. 

14.	We have perused both the original and proposed pleadings and we are not satisfied that original pleadings are either deficient or vague. In our view, they sufficiently set out the various categories of damages and paragraph 6 sets out the material facts giving rise to the claim for damages for mental distress, frustration and hardship. In addition, he seeks it in the prayer for reliefs. Thus, in essence, all the necessary and relevant information on the type of reliefs are sufficiently set out in the statement of claim. It would, therefore, be unnecessary and waste of time to change them. For these reasons, we find his Honour did not err when he refused leave to amend the pleadings in relation to damages. This ground is also dismissed.

Conclusion

15.	We are satisfied that the primary judge improperly exercised his discretion in so far as refusal of leave to correct the error in the date of the accident is concerned and will allow the appeal in part. As the appellant also seeks leave to amend the pleadings in the event that the appeal is upheld, and in order to expedite the matter, noting that the dispute arose some 8 years ago, in the exercise of the Court's power under section 16(c) of the Supreme Court Act, we grant leave to the appellant to amend paragraph 4 of the statement of claim with regard to the date of accident of Saturday 09th September 2004 to Saturday 18th September 2004. 

16.	We further order that the appellant shall file and serve the amended statement of claim within 14 days from the date of this order and the respondent shall have a further 14 days to file and serve its amended defence. Thereafter, the appellant shall have a further 7 days to file and serve its amended reply. Finally, as either party has been successful in the appeal and in fairness to both, we order that each party bear their own costs of the appeal. 

Order

17.	The orders of the Court are:

1.	The appeal is allowed in part.

2.	 Leave is granted to the appellant to amend paragraph 4 of the statement of claim with regard to the date of accident of Saturday 09th September 2004 to Saturday 18th September 2004. 

3.	The appellant shall file and serve the amended statement of claim within 14 days from the date of this order;

4.	 The respondent shall have a further 14 days to file and serve its amended defence. 

5.	Thereafter, the appellant shall have a further 7 days to file and serve its amended reply.

6.	Each party shall bear their own costs of the appeal. 

_________________________________________

M Saka Lawyers:	Lawyers for Appellant
Gadens Lawyers:	Lawyers for Respondent