PNG Law Reports 1995
[1995] PNGLR 344
N1224
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
KORA GENE
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
Mount Hagen
Woods J
18 April 1994
23 May 1994
PRACTICE & PROCEDURE - Pleadings - Issues of law - All available issues of law should arise on pleadings - Discretion of court.
NEGLIGENCE - Motor vehicle injuries claim - Deed of release - Enforceability - Parties not on equal footing - Avoidance of agreement - Circumstances of PNG - Uneducated villager - Deed limited to solatium.
Facts
In a claim for damages arising from the death of his daughter in a motor vehicle accident, the defendant pleaded the existence of a deed of release under which the plaintiff released and discharged the deendan tfrom all actions arising out of the death. No reply to the defence was filed and served. The plaintiff sought a preliminary hearing on the issue of the deed of release.
Held
1.       The plaintiff had indicated well in advance of the trial that the existence of the deed was an issue that required resolution. In those circumstances, the defendant could not be said to have been taken by surprise. The plaintiff had, in effect, informally complied with the pleading rules by his conduct. Accordingly, the failure to file a reply did not prevent the plaintiff disputing the dee dof the release.
2.       Having regard to the fact that th edeed had been signed by thumb print by an illiterate villager in the absence of his legal advisers and that the defendant had knowledge of the existence of those advisers at the time the deed was signed, the parties were not on an equal footing. Accordingly, the deed did not bar the plaintiff from proceeding with the cliam and the matter would proceed to trial.
Cases cited
Re Robinsons Settlement Gant v Hobbs [1912] 1 Ch 717.
Vian Guatal v The State [1981] PNGLR 230. 
Counsel
D. O’Connor, for the plaintiff.
A. Kandakasi, for the defendant.
23 May 1994
WOODS J: This is claim by a father for damages for the loss of a daughter Erekina Karo who is alleged to have died through the negligent driving of two vehicles which collided in Goroka on 3 June 1989.
It is alleged that the daughter was a passenger in one of the vehicles.
The defendant has denied liability and in its defence has referred to a Deed of Release executed by the plaintiff on 16 November 1989. Whereby the plaintiff released and discharged the defendant from all actions claims or demands arising out of or in respect of the death of Erekina Kora in a Motor Vehicle accident on 3 June 1989.
The plaintiff did not file a reply to this defence but instead set the matter down for trial. When a date for trial was sought the plaintiff raised the issue of this Deed of Release and sought a preliminary hearing on this matter. So this comes before me for argument on the effect of the Deed of Release.
Certain documents were put before me in evidence for the purpose of this preliminary argument namely:
1)       A Deed of Release executed on 16 November 1989.
2)       A statutory declaration by the plaintiff declared at Port Moresby on t16 November 1989.
3)       A letter dated 16 October 1989 from the plaintiff’s Lawyer to the defendant.
4)       A letter dated 1 November 1989 from the defendant to the plaintiff’s lawyer.
The defendant has submitted before me that the plaintiff cannot raise arguments against the effect of the Deed of Release because he has not pleaded the issue in a Reply to the Defence. The defendant here refers to the rules of the National Court and in particular to National Court Rules Order 8 rr 5 and 14. 
RULE 5 - REPLY - 
(1)      Where a defendant serves a defence on a plaintiff and a reply is needed for compliance with r 14 of this O or r87 of this Order, the plaintiff shall file and serve the reply before the expiry of 14 days after the date of service on him of the defence.
RULE 14 - MATTERS FOR SPECIFIC PLEADING:
In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, fraud or any fact showing illegality,
a)       which he alleges makes any claim, defence or other case of the opposite party not maintainable;
b)       which, if not pleaded specifically, may take the opposite party by surprise; or
c)       which raises matters of fact not arising out of the preceding pleadings.
These rules were referred to by Miles J, In the case of Vian Guatal v The State [1981] PNGLR 230 at page 234 where His Honour says as follows:
“By O 22 r 14 of the rules of the National Court each party must raise by his pleading ‘all matters of fact which show that the claim of the opposite party is not maintainable’ and all grounds of defence or reply must be pleaded which, if not raised, would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the present pleadings. Ordinarily speaking then, if a party wishes to raise an issue which has not been pleaded he will have to amend his pleading and it is perfectly clear why this is so; it is to enable the other party to know exactly the case he has to meet, to enable the court hearing in the action to know the issues of fact and law between the parties to be decided and to enable a appellate court to know what those issues where when they were decided.” (Note O 22 is now O 8).
In the Supreme Court Practice (The White Book) with reference to English O 18 r 8, which is the same as our O 8 r14, there are a number of references to where a reply is necessary, and it is emphasised that “this rule enforces one of the cardinal principles of the present system of pleading, viz, that every defence or reply must plead specifically any matter which makes the claim or defence in the preceding pleading not maintainable or which might take the opposite party by surprise or raises issues of fact not arising out of the preceding pleading. Put shortly, wherever a party has a special ground of defence or raises an affirmative case to destroy a claim or defence, as the case may be, he must specifically plead the matter he relies on for such purpose. Buckley LJ in re Robinsons settlement Gant v Hobbs [1912] 1 Ch717,728 says “The effect of the rule is for reasons of practice and justice and convenience to require the party to tell his opponent what he is coming to the court to prove.”
Whilst I must agree with all these principles of pleadings and in particular that a party must tell his opponent what he is coming to court to prove the question here is, is the defendant left in the dark at the beginning of a trial. There is no way that this can be said by virtue of the fact the plaintiff has come to this court and indicated before a date was set for trial that there was a preliminary matter that needed resolving first. Can it therefore be said that he has in effect informally complied with principles of pleading by so coming to the court. Is the court bound to strictly say no, unless you file a formal reply disputing or challenging the effect of the Deed of Release you cannot argue it. I cannot believe it is the role of this court to be so hide bound or firm. It is the role of the court to assist in the settlement or resolution of disputes. If a party fails to plead properly and only at the hearing is a party suddenly faced with a new fact that should be pleaded then I will apply sensible but strict principles which are the rules of pleading. But this is not the case here, there is no careless avoidance of pleading. The plaintiff has come to court and indicated well in advance of a trial date that there is a particular issue raised on the pleadings that need to be resolved.
I therefore dismiss the submissions on the point of failure to plead.
On the issue of the maintenance of the Deed of Release it is submitted by the defendant that this is a contract that is enforceable and there has been no evidence or anything to suggest grounds for avoidance of the contract for reasons of illegality or otherwise. 
However this is a deed entered into by an illiterate villager, note his signature by thumb print, which affects his legal rights and entered into by the villager with a large and sophisticated company. Further it is entered into in the absence of the villager’s legal advisers and I note here from the letters that were passed at the time that the defendant had knowledge of the plaintiff having a legal adviser at the time that this deed was entered into.
Whilst parties can always talk between themselves without lawyers, in the circumstances of PNG and by virtue of the disparity of education and understanding between the plaintiff and the defendant I must find that the parties here are not on an equal footing. The plaintiff here is at a great disadvantage. I must find it is unconsionable for a plaintiff of the nature and sophistication of the Motor Vehicles Insurance Trust to negotiate directly with an illiterate villager who cannot read without taking appropriate precautions to ensure that the villager understands his legal rights. So whilst strictly at law parties can deal with each in the absence of lawyers a party with education and knowledge and experience must exercise extreme care when negotiating with a party who has no education and no real understanding of his rights and interests. Looking at the Deed of Release itself it appears that at the time this Deed of Release was signed the plaintiff was given the sum K600 and there is nothing anywhere to suggest that he really understood that whilst he was getting the K600 it may exclude all other claims that he may have. The wording of the affidavit signed by the plaintiff at the time he apparently signed the Deed of Release only refers to his claims for solatium and does not say he understood it was barring all other claims. So this affidavit itself supports the narrow understanding of the plaintiff of the K600 and not the possible fuller claim he had instructed a lawyer to make. This court cannot condone such negotiations the more so when the Motor Vehicles Insurance Trust knew the plaintiff had the benefit of a lawyer acting for him who did understand the possible full nature of the claim.
I therefore find that in the circumstances of Papua New Guinea today and by virtue of the terms of the affidavit which suggest an understanding that the Deed of Release is only limited to the K600 solatium, that therefore the Deed of Release is not a bar to a wider claim for any further loss that the plaintiff may be able to prove that he has suffered from the loss of his daughter. Of course I will note that he has received the appropriate amounts namely the estate claim and the solatium and these would be in reduction of any further amounts that the court might order.
I therefore order that the plaintiff is not barred from further proceeding with this claim and this Writ of Summons can now be set down for further hearing.
Lawyer for the plaintiff: D. L. O’Connor.
Lawyer for the defendant: Young & Williams.