Norum v Aziz [2005] PGDC 16; DC124 (3 June 2005)

DC124

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2845 OF 2002

BETWEEN

JOHN WAK NORUM
Complainant

AND

LUKMAN AZIZ
First Defendant

PHILIP TAN

Second Defendant

TAURAMA SUPERSTORE LIMITED

Third Defendant

PORT MORESBY: BIDAR, PM

2005: 10 May, 3 June

Claim for loss of business - Motor vehicle accident - Payment of damage to motor vehicle by third defendant's Insurers

Deed of Release signed by parties - Effect of - Whether further actions lie after signing of deed and receipt of payment by complainant.

Cases Cited

There are no cases cited.

Counsel
J. Kalo for complainant.
F.Z. Lalo for Insurers, QBE Insurance (PNG) Ltd by its subrogated right.

DECISION

3 June, 2005

BIDAR PM: On 24th September 2002, complainant filed summons upon complaint against the defendants alleging negligence by the first defendant which caused damage to the complainant's PMV bus Reg. No. P.239B on or about 30th May 2002. The first defendant drove a Nissan utility, Reg. No. BBE:288 and collided with the complainant's PMV bus.

Sometimes after the accident, the complainant and the first defendant agreed to settle the matter out of Court. Since the first defendant was the employee of the third defendant and the vehicle he drove was also owned by the third defendant, it engaged the services of Person Loss Consultants and Adjusters, who assessed an amount of K12,114.60 less 30% contributory negligence and amount of K8,484.27. This amount was accepted by the third defendants' Insurers (QBE Insurance (PNG) Limited. The sum of K8,480.27 was paid to the complainant, after the parties signed the Deed of Release on the 26th July 2002. The Deed of Release is in the following terms:-

"FORMAL RELEASE FROM FURTHER LIABILITY...............

IN CONSIDERATION OF QBE INSURANCE (PNG) LTD OF P.O. BOX 814, PORT MORESBY IN THE NATIONAL CAPITAL DISTRICT AS INSURERS.

Nissan Navara s/cab utility Reg. No. BBE:288 owned by Taurama Super Store of P.O. Box 7157 in the National Capital District, paying JOHN WAK NORUM, P.O. Box 56, Port Moresby in the National Capital District, the sum of Eight Thousand Four Hundred and Eighty Kina and Twenty Seven Toea (K8,480.27) for and in full satisfaction for all physical damage to the said Mitsubishi Rosa Bus Reg. No. P.23915, and other loses sustained by reason of a collision which occurred on the 31st day of May Two Thousand and Two along the Sir Hubert Murray Highway, near Lahara Service Station opposite Murray Barrack s in the National Capital District.

I, JOHN WAK NORUM acknowledge that such payment is made with a denial of liability and to obviate the expense of litigation and IN CONSIDERATION of the said sum so paid as foresaid, I the said JOHN WAK NORUM fully release and forever discharge the said QBE INSURANCE (PNG) LTD and Taurama Super Store the driver of the said Nissan Navara single cabin utility, Reg. No. BBE:288 from all actions, suits, claims and whatsoever which we now have or may hereafter have in respect of such damage and other losses and this discharge may be pleaded in bar to any such action, suit, claim or demand."

Deed of Release was signed by complainant and witnessed by one Philip Tiki at Port Moresby on 26th July 2002.

The terms of the release are very clear and complainant being an accountant knew very well what he executed.

It appears that before complainant executed the Deed of Release he was informed by Mr. Kiangali of Persean Loss Consultants and Adjusters that payment of K8,480.27 was only for physical damage caused to the complainant's vehicle, and did not cover losses such as business and he was at liberty to sue Taurama Supa store.

This advice may have been given to the complainant by Mr. Kiaigal, but in my view that was only his opinion and not necessarily the law.

In Halsbury's Laws of England 4th Ed. Volume 12 p. 505.

"1. A Deed is an instrument which complies with the following requirements. First it must be written or produced on paper. Secondly it must be executed in the manner specified below by same person or corporation named in the instrument. Thirdly, as to subject matter, it must express that he person or corporation so named, makes, confirms, consults in or consents to some assurance otherwise than by way of testamentary deposition of some interest in property or of some legal or equitable rights file or claim or undertakes or enters into some obligation duty or agreement enforceable at law or in equity or does or consent in some other act affecting the legal relations or position of a party to the instrument or of some other person or corporation."

There are a number of authorities which deal with whether Deed of Release bars complainant from pursuing further claims. For instance, Wallace v Motor Vehicle Insurance (PNG) Trust [1991] PNGLR 341.

Following motor vehicle accident, a claim was lodged with MVIT and was settled in respect of general damages at K100,000.00 without admission of liability by either party. The terms of settlement expressly excluded interest and costs, such matters was to be referred to the National Court.

The instant case is different. There was settlement before Court proceedings. Therefore in the absence of Court proceedings, complainant in my view was bound by the terms of the Deed of Release signed on 26th July 2002. The terms of the Release among other things forever released and discharged all defendants from all actions, suits, claims and demands whatsoever which we now have or may hereafter have in respect of such damages and other losses and the discharge may be pleaded in bar to such actions, suit, claim or demand.

There is no issue as to the validity of the Deed of Release. No allegation of fraud or misrepresentation is arising here. I accept it was a perfectly valid legal document which the complainant executed.

One other matter I mention in passing, that the submissions by both counsel, deal with two defendant contracts or instruments one is a Deed of Release which complainant is a privy to and the other is policy (Insurance) which is separate contract, for which complainant is not a privy to. Each contract have their own consequences.

Having heard both counsels and upon reading throughly the terms of Deed of Release and looking at the authorities which deal with the effects of Deed of Release and having found no evidence that complainant was tricked into or misrepresented in executing the Deed of Release, I am satisfied on the balance of probabilities that, complainant has released all defendants from further actions, suits, claims or demands and therefore I rule in favour of the defendants.

On the other hand if the Court is wrong in that ruling, the Court cannot award damages for loss of income without evidence to substantiate such loss. Evidence such as profit and loss statement, income tax returns are vital to establishing proof of loss of income.

In any event, it may be unconscionable for complainant to have a second bite at the cherry. In the result, the proceedings instituted by the complainant cannot be allowed to proceed.

The proceedings are therefore dismissed with costs to the defendants.

Ordered accordingly.

Yapao Lawyers: Complainant
Posman Kua & Aisi Lawyers: Defendant