Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363 (28 October 1994)

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DAMAGES - Motor vehicle accident - Only Court can make award in excess of statutory limit under Motor Vehicles (Third Party Insurance) Act Ch 295.

PRACTICE AND PROCEDURE - Objection on competency - No cause of action between appellant/respondent - Therefore, no basis for interlocutory application.

WORDS AND PHRASES - "Award", Motor Vehicles (Third Party Insurance) Act Ch 295 - "Cause of action".

Steven Charles Pickthall appealed against an interlocutory order refusing leave to join and proceed against the respondent as owner of a motor vehicle involved in an accident in which the appellant sustained personal injuries. He had earlier discontinued proceedings against the Motor Vehicles Insurance (PNG) Trust after accepting K100,000 paid into Court. The owner of the vehicle, the respondent, had never been a party to the discontinued proceedings. An appeal and application for leave to appeal were filed by the appellant and a notice of objection to competency was filed by the respondent.

1. Section 54(5) Motor Vehicles (Third Party Insurance) Act Ch 295 is dependent upon an assessment of damages by the trial judge, and an award in excess of the statutory limit can only be made by a court.

2. Meaning of "award" in the Motor Vehicles (Third Party Insurance) Act is an award made by a court and does not include payment accepted between the parties.

3. The owner of the vehicle should have been joined in the action if it was intended to seek damages against him.

5. Discontinuance of an action is not a bar to the same cause of action, but there is no specific provision for discontinuance by consent being set aside by consent in the National Court Rules.

6. Meaning of "Cause of action" considered. It is limited to an action between the plaintiff and the defendant.

DOHERTY J: This is an objection to competency of an appeal against the decision of Brown J on 5 April 1991. The appeal and application for leave to appeal were lodged 13 May 1991.

A notice of objection to competency was filed by the respondent on 15 May 1991. It is that objection only that is now before the Court. The history of the proceedings is more fully set out in the judgment of Sevua J, and chronologically is as follows:

The plaintiff had a road accident on 5 December 1983 involving a motorcycle he was driving and a vehicle owned by Lae Plumbing Pty Ltd and driven by its employee. A writ, WS 250 of 1985, was issued on behalf of the plaintiff on 17 May 1985 against the Motor Vehicles Insurance (PNG) Trust.

A letter was written by the plaintiff's lawyers on 4 November 1985 informing Lae Plumbing Pty Ltd the claim could exceed the statutory limit provided by the Motor Vehicles (Third Party Insurance) Act Ch 295. Lae Plumbing Pty Ltd acknowledged that letter.

The plaintiff's lawyers wrote to the insurers of Lae Plumbing on 4 February 1988, again informing it of a possible claim. The letter was acknowledged.

A deposit was paid into court by the Motor Vehicles Insurance Trust on 1 November 1989. That deposit was accepted on 14 November 1989.

A letter was written to Lae Plumbing Pty Ltd on 20 July 1990 by the plaintiff's lawyers, giving notice that the plaintiff's condition had deteriorated and a claim against it would be formulated. The writ, WS 250/85, between the plaintiff and the Motor Vehicles Insurance (PNG) Trust was discontinued on 19 October 1990 by consent.

A motion was filed on 25 February 1991 for orders against Lae Plumbing Pty Ltd, seeking "Orders in respect of the further conduct of these proceedings between the plaintiff and Lae Plumbing Pty Ltd ..." and, inter alia, "leave to file an amended statement of claim that will properly plead the liability of this action of Lae Plumbing..." The motion was returnable on 4 March 1991. Leave was refused on 5 April 1991.

That decision was appealed against, and this is an objection to competency of appeal.

Both counsel agree that the respondent in these proceedings was never served, joined, or in any way made a party to these proceedings when they were first instituted against the statutory corporation, the Motor Vehicles Insurance (PNG) Trust. Clearly, therefore, they had no opportunity to speak in any way in the proceedings leading up to the discontinuance on 19 October 1990.

There is no doubt in my mind that the proceedings against Lae Plumbing Pty Ltd arising from the accident are now statute barred by virtue of the provisions of the Frauds and Limitations Act 1988 (No 3 of 1988). Order 8 rule 61 of the National Court Rules provides for discontinuance.

The effect of that discontinuance is provided in O 8 r 66, which says that discontinuance "shall not, subject to the terms of any leave to discontinue be a defence to proceedings for the same, or substantially the same, cause of action".

Hence, the discontinuance, in itself, is not a bar to the same cause of action. This discontinuance was by consent. I note the Supreme Court Practice 1993 of United Kingdom, on which this rule is based, at para 21/2-5/14 notes that an order for discontinuance by consent may be set aside by a subsequent order by consent, and the cause of action may proceed. However, the authority relied on, Owners of Cargo the Kronprinz v Owners of the Kronprinz [1887] UKLawRpAC 7; (1887) 12 AC 256, turns on the facts and the reason for discontinuance. In their decision, the House of Lords considered there was an agreement between the parties supported by consideration.

The rules of the Supreme Court of the United Kingdom, like our National Court Rules, make no specific provision that a discontinuance by consent may be set aside by consent.

Since discontinuance is not a bar to proceedings for the same or substantially the same cause of action, what then is the "cause of action". The term is not defined in the National Court Rules, although the term is used in other rules, eg O 8 r 53(5) and O 8 r 66.

"Cause of action" has been held to mean "every fact which is material to be proved to entitle the plaintiff to succeed - every fact, which the defendant would have a right to traverse" (Cooke v Gill [1873] UKLawRpCP 3; (1873) LR 8 CP 107). I consider this definition appropriate in this case.

A "cause of action" is an action between the plaintiff and the defendant. The defendant in the action in WS 250/85 was the Motor Vehicles Insurance (PNG) Trust. There was no cause between the plaintiff and Lae Plumbing Pty Ltd on WS 250/85 which can be continued and defended. There can be no cause of action to continue; hence, the question of leave cannot arise.

The appellant relies heavily on Kerr v MVIT [1979] PNGLR 251, but clearly in that case the owner of the vehicle was a party of those proceedings and represented throughout. They had an opportunity to be heard.

I consider this application was misconceived, and I uphold the objection on competency.

SAKORA J: I have read the judgments of Doherty and Sevua JJ and concur with them.

SEVUA J: The appellant appeals against the decison of Brown J, given on 5 April 1991, refusing leave to join and proceed against the respondent as owner of the motor vehicle involved in an accident in which he sustained personal injuries. He had earlier discontinued initial proceedings against the Trust after accepting the sum of K100,000, paid into Court by the Trust.

A brief history of the facts of this case are these. At about 3.55 pm on 5 December 1983, the appellant collided with a car travelling in the opposite direction at the intersection of 7th Street and Huon Road, Lae. The car was owned by the respondent and driven by one Kumin Rovuam. The appellant instituted proceedings against the Trust in 1985, claiming unspecified damages against the Trust, alleging negligence on the part of Mr Rovuam. A writ of summons, No 250 of 1985, was issued on 17 May 1985. On 1 November 1989, the appellant filed a notice of acceptance of K100,000 in satisfaction of the cause of action against the Trust. On 19 October 1990, the appellant filed a notice of discontinuance in that action, which was consented to by the defendant Trust.

On 25 February 1991, the appellant filed a notice of motion seeking leave, as I mentioned earlier, to join and proceed against Lae Plumbing Pty Ltd as owner of the vehicle driven by Mr Kumin Rovuam on the basis that his claim has exceeded the sum of K100,000, which is the statutory limit of the Trust's liability in pursuance of s 49(2)(a)(i) of Motor Vehicles (Third Party Insurance) Act Ch 295 (the Act). Leave was refused, and he appealed against the whole of that decision.

The Trust has raised objection to the competency of this appeal. Counsel for the respondent argued that it is not and was never a party to any legal proceedings institutued by the plaintiff/appellant, and it was never a party to the decision made by Brown J on 5 April 1991. She argued, therefore, that Lae Plumbing Pty Ltd could not be made a respondent to this appeal. Thus, the appeal is incompetent and should be struck out. Counsel for the appellant, argued the opposite and relied on s 54(5) of the Act and the Supreme court decision, Kerr v MVIT [1979] PNGLR 251. As I understood, the essence of his argument was that s 54(1) of the Act does not allow a claim against the owner or driver, thus it was not necessary for the respondent to have been included as a party to the initial action. Secondly, on the basis of Kerr, the excess damages can be awarded against the respondent (Lae Plumbing Pty Ltd) by virtue of s 54(5) of the Act.

The law relied upon by the appellant, in my view, is clear, and I appreciate his arguments. However, I consider that there are substantial grounds upon which I would strike out the appeal as being incompetent.

In my view, the appellant has misconceived the law he seeks to rely upon. The end result is that the very law he relies on does not assist him at all. I consider that Kerr is clearly distinguishable from the present case. In Kerr, both the National Court and the Supreme Court (on appeal) found damages in excess of the statutory limit of K100,000. There was an actual assessment of damages by both the trial judge and the Supreme Court, and there was an award made initially by the trial judge which the Supreme Court later ruled inadequate and awarded a much more higher total sum in damages. The trial judge's assessment were - general damages K115,000 and special damages K17,524.90; total damages K132,524.90. The verdict was against the defendant Trust for the sum K100,000 of that total and against the owner company for excess of K32,524.90. On appeal, the Supreme Court assessed general damages at K183,000 and special damages were the same as the trial judge had assessed. Total damages, therefore, was K200,524.90.

Several points which I consider significant here arose in Kerr. Firstly, the initial claim against the Trust, which was K100,000 was subsequently amended to K300,000 in the writ. Secondly, there was an award of damages made by the trial judge and, in fact, on appeal, an award of damages was made by the Supreme Court too. Thirdly, the owner of the motor vehicle involved in the accident was ordered to pay the excess pursuant to s 54(5) after the trial judge had awarded the statutory limit of K100,000 against the Trust.

In the present appeal, the sum of K100,000 which the Trust paid into Court and was subsequently accepted by the appellant was, strictly speaking, not an award of damages made by a court pursuant to s 54(5) of the Act. The term "award" is not defined in the Act. However, the concise of Oxford dictionary defines it as "give or order to be given as a payment, penalty or prize". In my view, in the ordinary usuage of the word "award" the sum of K100,000, therefore, was not "an award of damages made by a Court ..." This section is crystal clear. The excess must be awarded, but only in a case where an award of damages has been made by a Court. Simply put, excess damages cannot be awarded against the owner of a motor vehicle where an award of damages has not been made by a Court. That much is clear and, therefore, in my view, the appellant's counsel's submission (without authority) is misconceived.

I do not consider that the appellant's other argument that the respondent here did not have to be named as a party to the same action would greatly assist him either. Of course, it is compulsory that a claim must be made against the Trust and not the owner or driver of the motor vehicle concerned. However, under the circumstances in which the appellant had sought leave to proceed against the respondent, he should have adopted procedures available to him under the National Court Rules. Under Order 5 Rule 2, the appellant could have joined the respondent as a defendant. He chose not to. I consider that even though he was discontinuing the claim against the Trust, he could have sought leave at that stage to join the respondent, especially when he had not quantified his claim and, further, there had been no award made by a court against the Trust.

In my view, he had options available to him, as argued by the respondent's counsel. Instead of, or prior to, filing the notice of discontinuance, he could have proceeded to hearing and asked the Court to award damages of K100,000 against the Trust and then rely on s 54(5) to have the Court award any excess against Lae Plumbing Pty Ltd. Alternatively, he could have accepted payment into Court, as he did, then applied to have judgment entered against the Trust for K100,000, then subsequently apply for excess to be made against Lae Plumbing Pty Ltd. If he had wished to claim against the respondent, herein, he should have adopted one of these procedures available under the rules. As I said, he chose neither. Then, after discontinuing the whole action against the Trust, he sought to join the present respondent. To my mind, he cannot do this. He needs to start all over again, that is, issue fresh proceedings against the respondent if he wishes to claim excess damages from the respondent.

Another ground to strike out the appeal relates to the appellant's pleadings. There is nothing in the appeal book which shows that the statement of claim on the writ of summons filed by the appellant on 17 May 1985, had been subsequently amended. It is noted that the claim for damages against the defendant Trust was not quantified, as in Kerr. Furthermore, there is nothing in the pleadings which alluded to the issue of excess damages. In the light of this revelation, could the plaintiff/appellant claim a remedy which he did not plead?

In my view, the law on this aspect is settled. A person cannot recover damages where the pleading does not contain a claim for such damages. In Collins v MVIT [1990] PNGLR 580, Hinchliffe J refused to assess a dependency claim for a child whose name was not specifically pleaded in the writ. In Waima v MVIT [1992] PNGLR 254, Woods J referred to the code of pleading under the National Court Rules, especially O 8 r 33, which I consider to be very wide in covering particulars necessary in death or personal injury cases. He referred to three English cases, namely, Hayward v Pullinger & Partners Ltd [1950] 1 All ER 581 and Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873, dealing with special damages, and Chai Wai Ton v Li Ping Sum [1984] UKPC 49; [1985] AC 446, dealing with an award for loss of future earning capacity. I think we can conclude, therefore, that if a plaintiff does not plead a specific head of damages in his writ, he is not entitled to recover same. Not only can we derive this general principle from these cases, but our own Rules state that particulars of a claim in a death or personal injuries case must be provided. I am of the opinion, therefore, that the appellant did not plead the excess in his writ, and it follows that he cannot recover excess damages.

The appellant had discontinued the whole proceedings against the Trust. He cannot, in my view, join the respondent to an action or proceedings which no longer exists. He should start afresh against the respondent if he wishes. I consider that he cannot proceed against this respondent simply because his action against the Trust is incapable of being revived. In ROFA Sport Management AG v DHL International (UK) Ltd [1989] 2 All ER 743, where Neill LJ was distinguishing "stay" from "dismissed" or "discontinuance", he said on p 749, "But, as it seems to me, the action following a stay remains technically in being. The action cannot proceed or resume its active life without an order of the court, but I do not consider that it can properly be regarded as dead in the same way as an action which has been dismissed or discontinued by order". (emphasis mine) The proceedings are, therefore, incapable of being revived as it has been discontinued, thus is dead, so to speak.

However, even if the appeal was allowed to proceed without the issue of incompetence, I consider that it should be dismissed in any event. The appellant appeals against the exercise of discretion of a trial judge's refusal to grant leave. I think the issue would be, has the trial judge erred in the exercise of his discretion in refusing leave? In my judgment, there was no error in the exercise of his discretion. The appellant has the onus, and he must discharge that burden. The appeal book does not seem to me to indicate or suggest where the trial judge had erred in the exercise of his discretion to refuse leave to join the respondent.

Order 5 rule 2 provides "Two or more persons may be joined as plaintiffs or defendants in any proceedings:

(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

The Court's jurisdiction under this rule to join parties to proceedings is, therefore, a discretionary one. See Tozer v PNG [1982] PNGLR 150. In Hadmor Productions Ltd v Hamilton [1982] 1 All ER 1042 at 1046, Lord Diplock, with whom their Lordships agreed, explained in a well known passage in his speech in the House of Lords, the circumstances on which an appellate court can interfere with the exercise by a judge of a discretion vested in him. In broad terms, such interference is only permissible where the judge has misunderstood the law or the facts or has taken into account irrelevant matters or ignored matters which were plainly relevant to his decision. I cannot find any misunderstanding of the law or facts in the trial judge's judgment in the case before us.

I consider that the Supreme Court should not jump onto the lawyer's bandwagon in allowing an appeal against the National Court's decision each time an interlocutory application is refused. My view is reinforced by the Supreme Court decision in Straits Contracting (PNG) Pty Ltd v Branfill Investments Ltd [1988] PNGLR 239. The Court held at 243 that it should hesitate to overturn the trial judge on a discretionary interlocutory ruling. I would apply that in this case.

Nevertheless, as I said previously, the original proceedings against the Trust is not on foot because it had been discontinued, and it is not proper to join the respondent unless new proceedings are commenced. In any event, this matter is now statute barred.

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Papua New Guinea Law Reports

Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363 (28 October 1994)

PNG Law Reports 1994