Elkum v State; Genbi v State [1989] PGNC 129; [1988-89] PNGLR 662; N771 (9 November 1989)

N771

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WENAM ELKUM

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND

IWAI GENBI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Goroka & Waigani
Brunton AJ
18-19 May 1989
9 November 1989

PRACTICE AND PROCEDURE - Striking out defence - Matters pleaded constituting general denial - Personal injuries claim - Denial or non-admission of all facts alleged - Whether abuse of process - Defence struck out - National Court Rules, O 8, r 28.

DAMAGES - Personal injuries - Particular awards of general damages - Pelvic fracture involving urethra - Minor eye injuries - Possible loss of 10 per cent function of leg with onset of osteoarthritis - Village gardener aged 19 years - Award of K9,500 general damages - Global award of K2,000 for possible future economic loss.

DAMAGES - Personal injuries - Particular awards of general damages - Leg and arm injuries - Fractures of tibia and right elbow - Ligamentous knee damage - Possible 5 per cent loss of function of leg with onset of osteoarthritis - Male subsistence farmer aged 25 years - Award of K6,000 general damages - Global award of K1,000 for possible future economic loss.

The National Court Rules, O 8, r 28, provides that a "party shall not plead the general issue".

In response to a statements of claim for damages for personal injuries suffered as a result of a motor vehicle accident, the defendant in its defences either denied or did not admit all of the facts alleged.

Held

(1) The defences should be struck out as being general denials not permitted by O 8, r 28, of the National Court Rules.

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 at 302, followed.

(2) It is an abuse of the process of the court to adopt a practice of filing defences in general terms as a formality to meet time limitations while leave of the court to extend time limitations is readily available.

(3) It is an abuse of the powers of the court not to admit facts which could reasonably be admitted or to deny facts which could reasonably be admitted.
Wenam Elkum v PNG:

The plaintiff, a male aged 19 years, working as a village gardener, claimed damages for personal injuries sustained in a motor vehicle accident. He suffered a fractured pelvis with partial tear of the urethra, bruising around the eyes and corneal scarring. He was hospitalised for three months, suffered no continuing urinary problems but was liable to a 10 per cent loss of function of the hip joint with the onset of osteoarthritis. The plaintiff continued to play some sports but had ceased playing rugby.

Held

(1) General damages for pain and suffering and loss of amenities should be assessed at K9,500.

(2) In the absence of evidence as to future economic loss, the court should fix a global amount, to reflect the plaintiffs reduced capacity to earn income in the future, at K2,000.

Nali Matabe v PNG [1988] PNGLR 309, followed.
Iwai Genbi v PNG:

The plaintiff, a male aged 25 years, and a village subsistence farmer, claimed damages for personal injuries sustained in a motor vehicle accident. The plaintiff suffered arm and leg injuries, including fractures of the right elbow and right tibia with damage to the ligaments of the right knee which required three months hospitalisation. The plaintiff faced the possibility of the onset of osteoarthritis within two to five years with prognosis of a 5 per cent loss of function of the leg. The plaintiff had ceased playing football and basketball.

Held

(1) General damages for pain and suffering and loss of amenities should be assessed at K6,000.

(2) A global sum of K1,000 should be awarded for any loss of income arising from possible future incapacity resulting from osteoarthritis.

Cases Cited

Aundak Kupil v PNG [1983] PNGLR 350.
Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365.
Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301.
Jeremiah O’Hello v Kayel Shipping Co Pty Ltd [1980] PNGLR 361.
Nali Matabe v PNG [1988] PNGLR 309.
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436.
Warner v Sampson [1959] 2 WLR 109; [1959] 1 All ER 120.

Statements of Claim

These were two separate actions, for damages for personal injuries, arising out of the same motor vehicle accident.

Counsel

S Malaga, for the plaintiffs.
J K Puringi, for the defendant.
Cur adv vult

9 November 1989

BRUNTON AJ: Two separate writs of summons by the plaintiffs were issued against the defendant alleging negligence against the servants or agents of the defendant pursuant to the provisions of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) Pt 1, Div 1 and Div 2. The actions arose out of a motor vehicle accident in which the plaintiffs received personal injuries.

By consent, both matters were tried together.

A preliminary objection was taken by the plaintiffs to the defence filed by the defendant that it was contrary to O 8, r 28, of the National Court Rules, in that it was said that the defence was a plea to the general issue — or, as Mr Malaga put it, a quasi plea to the general issue, and should be struck out.

Order 8, r 28, of the National Court Rules provides:

"A party shall not plead the general issue."

The defences filed for the defendant were in substantially similar terms:

"1. The Defendant does not admit the allegations in Paragraphs 1 and 2 of the Statement of Claim.

2. It denies the allegations in Paragraph 3 of the Statement of Claim.

3. It does not admit the allegations in Paragraphs 4, 5, 6, 7, 8 and 9 of the Claim, and to each and every particular thereunder.

4. The Defendant denies that he will suffer loss of earnings as a result of (sic) the injury.

5. If the Defendant was negligent which is not admitted, then the Plaintiff is guilty of contributory negligence."

Paragraph 1 of the defence did not admit the status, age or residence of the plaintiffs. Paragraph 2 denied the matrimonial status of the plaintiffs. Paragraph 3 denied that a vehicle owned by the defendant had run into the plaintiffs, that they had been injured, denied all the particulars of negligence alleged by the plaintiffs, and denied the injuries suffered by the plaintiffs. Paragraph 4 denied future loss of earnings. Paragraph 5 alleged contributory negligence and particularised that allegation.

Mr Malaga relied on the judgment of Kapi Dep CJ in Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 to support his application to strike out the defence. In that case his Honour said (at 302):

"The purpose of O 8, r 28 is to prohibit the defendant from making a general denial without specifically denying the facts or basis upon which the plaintiffs cause of action is based. The reason for this is obvious. The purpose of pleading is to set out clearly the issues; not only to inform the other party but the Court as well. Each party needs to know the nature of the case against him so that he cannot be caught by surprise at the trial. Any pleading which tends not to deny specifically a fact but denies a matter generally, eg, a simple denial of a debt in an action for debt, would be a general denial without specifically denying the basis of the plaintiffs action."

In Hornibrook, the defence was in the following terms:

"2. the Defendant does not admit the allegations contained in paragraphs 3 to 10 of the Statement of Claim.

3. Save as aforesaid, the defendant denies each and every allegation contained in the Statement of Claim."

Mr Puringi for the defendant submitted that it was the usual practice for the State to draft its defences in the manner of these cases in order to stay within the time limitations imposed by the Rules. As a matter of routine, denials were made in running-down cases, pending the receipt of information from the provinces. The practice was to file a general defence to keep within the time limitations, and then when instructions were received to file a more particularised defence. In this case, counsel for the defendant stated, the names of those injured were not given in the police accident report, and it took time to get them.

The accident which was the subject of these actions took place on 4 February 1987. The writs of summons were served on the defendant on 10 June 1988. The defences were filed on 29 August 1989. No attempt was made before, or after, Mr Malaga made his application to strike out the defences, to amend them. If applications to amend the defence had been made, particularly if they had been made to narrow or clarify the issues in dispute, they would have been granted.

The defences were cast in the form of traverses. In Warner v Sampson [1959] 1 All ER 120 at 123C, Lord Denning said:

"Now the effect of a traverse has been known to generations of pleaders. It ‘casts upon the plaintiff the burden of proving the allegations denied’ ... So this general denial does no more than put the plaintiff to proof."

But general denials are not permitted by the National Court Rules, O 8, r 28.

Looking at the defences in these cases, and comparing them with the defences filed in Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd, at 302-303, there is little discernible difference as to their substance. They both amount to either not admitting or denying each and all of the facts alleged by the plaintiffs. In these cases, the defendant admits that the defences are a formality, put on, so it says, to meet time limitations, with the general practice being to seek to amend at a later time when the facts are to hand. But no application was made to amend.

Looking at this practice, I am inclined to believe that it is an abuse of process. If lawyers are genuinely embarrased by difficulty in getting adequate instructions from clients in outstations, then the proper course is to swear an affidavit to that effect, and seek leave of the court to extend time. This is not difficult to obtain in this jurisdiction, and such applications are made, and granted, from time to time, by the court. On this basis, the defence was struck out.

Two other matters are pertinent. After judgment on the preliminary application, above, was delivered on circuit, the evidence revealed that there was no doubt as to the ownership of the vehicle or the liability of the defendant under the Wrongs (Miscellaneous Provisions) Act (Ch No 297) for the actions of the driver of the vehicle. The vehicle was a government vehicle. It was clear that the defendant really disputed the quantum of damages being claimed by the plaintiffs, and that the tactic was to put the plaintiffs to proof on the issue of liability in the hope of forcing concessions on the issue of quantum of damages. This is a tactic of litigation by attrition: a corporate defendant, such as the State, with its lawyers on fixed salaries, digs in its toes and forces the plaintiffs to prove their case. The plaintiffs, who have to pay private lawyers their solicitor-client costs, are thus pressured to discontinue or curtail their action or make concessions on purely economic grounds, irrespective of the legal merits of their cases. In such circumstances, not to admit facts which could reasonably be admitted, or to deny facts which could reasonably have been admitted, is an abuse of the court’s process. One can only reiterate the words of the Deputy Chief Justice in Hornibrook Constructions, at 302:

"The purpose of pleading is to set out clearly the issues; not only to inform the other party but the Court as well."

This principle should be observed both in its letter and its spirit. Pleadings are not devices which those with long pockets can manipulate and gain unfair advantages over their adversaries. To do so is to abuse the process of the court, and to run the risk of having the offending pleading struck out.

The defences were struck out on circuit, and the trial proceeded on the issue of the quantum of damages. However, in the course of evidence, testimony which went to contributory negligence was given, because it was inextricably part of the damages case. For the benefit of the parties, my view of the evidence as it related to contributory negligence will be discussed.

DAMAGES: WENAM ELKUM

Dr Lincan M Menda gave evidence that Wenam Elkum sustained three types of injury from the accident involving the government vehicle. The first group of injuries arose from the fracturing of this plaintiffs pelvis. The second group were bruising around the eyes, which were described as per-orbital haematoma, and corneal scarring. By the time of the trial, this had completely healed and was of no major worry.

The fracture to the pelvis was more serious, because there had also been a partial tear to the urethra. In April 1988, the senior surgical specialist, Mr Clezy, at Goroka Base Hospital, examined this plaintiff and reported that he had no urinary symptoms. Mr Clezy reported:

"at this distance from the injury we may safely say that there will be no further trouble. The pelvic fracture has healed, and he will have no further trouble."

Dr Menda, who examined Wenam Elkum a year after Mr Clezy did his report, noted that the plaintiff:

"finds walking in the Highlands terrain (difficult) and the pain coming from the fractured pelvis every now and again."

He went on to assert that:

"There is a high likelihood of the development of osteoarthritis which can be debilitating to the extent of crippling him and occurs sometimes even after 3 to 5 years after the actual injury."

He estimated the damage from osteoarthritis of the hip joint to be a 10 per cent loss of function.

Dr Menda was not challenged on cross-examination on the apparent divergence of his views from those of Mr Clezy, and the defendant did not call any evidence to contradict him.

Dr Menda gave evidence that Wenam Elkum was in hospital for over three months and that he was immobilized with a catheter placed in his side so as to drain his bladder.

Wenam Elkum testified that he came from a mountainous area near Chuave, that he was a villager, whose prime occupation was gardening. He was 19 years old, and unmarried. He was experiencing some pain from his injuries. He had given up playing village rugby, but still played basketball, volleyball and soccer. Since the accident he had moved down from his village, and was living at Asaro Coffee, outside Goroka, and had been there for about one year.

In my view, Wenam Elkum did not experience the same trauma as was suffered by the plaintiff in Jeremiah O’Hello v Kayel Shipping Co Pty Ltd [1980] PNGLR 361, in which a 44-year-old marine engineer, married with six children, suffered impotency and personality change from his badly fractured pelvis and ruptured urethra. He was awarded K20,000 for his pain and suffering and loss of enjoyment of life. In this case, the three-month hospitalisation of Wenam Elkum, the catheter in his side, and his pain and suffering were not insubstantial. Also there is some risk of osteoarthritis setting in. But the plaintiff still appears to be an active person, although it must be allowed that there is some chance of further disability occurring. It is difficult to come to a precise figure which would compensate the plaintiff for all this, but K9,500 is not inappropriate.

Wenam Elkum also claimed out-of-pocket expenses for nursing assistance on the basis of the K20 per week awarded in Aundak Kupil v PNG [1983] PNGLR 350. This claim is appropriate in the circumstances of hospitals in Papua New Guinea where relatives more or less have to attend to patients and provide assistance with the nursing. Over a three-month period, this amounted to K240.

The plaintiff claimed for losses of future income that may arise from the injuries. It was not altogether clear that the plaintiff had established a reduction in his economic capacity, but the medical evidence that there was some likelihood of him succumbing to a partial, 10 per cent, permanent disability should be taken into account. In the circumstances of this case, where there was no admissible evidence of his economic production before or after the accident, on the basis of the ruling in Nali Matabe v PNG [1988] PNGLR 309, it is best to fix a global amount to reflect the plaintiffs reduced capacity to earn income in the future. A figure of K2,000 seems appropriate.

Damages payable by the defendant to the plaintiff Wenam Elkum are:

Pain and suffering etc K9,500

Out-of pocket expenses 240

Loss of future income 2,000

Total K11,740

In accordance with the principles in Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, interest at 8 per cent per annum is payable on the general damages of K9,500 from the date of the writ, 10 June 1988, to the date on which judgment is delivered, 9 November 1989, being one year and five months: a sum of K1,076.67.

Accordingly the defendant should pay a total of K12,816.67 to the plaintiff Wenam Elkum.

DAMAGES: IWAI GENBI

When this plaintiff was struck by the defendant’s vehicle, he sustained a deep laceration to his right elbow, a fracture to his right upper tibia and damage to the knee ligament of his right leg. The fracture had to be set surgically under a general anaesthetic. Dr Menda gave evidence that there was a possibility that osteoarthritis could set in over a period of two to five years after the accident and that the prognosis as to the effect of the injury would be that the plaintiff could have a 5 per cent disability. This testimony was not challenged in cross-examination, and no evidence was produced by the defendant to contradict Dr Menda.

Iwai Genbi gave evidence that he was about 25 years old and from the Chuave area, he was single, and a subsistence farmer. He testified that after the accident he no longer participated in singsings and had given up playing rugby and basketball. He had three months in hospital. The injuries in this case are not so bad as in Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365, in which the plaintiff was awarded K19,000 in general damages. There the plaintiff went through a terrible time. Here the plaintiff was knocked unconscious at the accident, he had to have an operation, he was in traction, he had to stay in hospital for three months. He has experienced pain, suffering, shock and psychological trauma. The defendant should pay to this plaintiff K6,000 in general damages.

He is also entitled to out-of-pocket expenses for nursing assistance to be calculated on the same basis as for Wenam Elkum. These are worth K240.

Following the method used with Wenam Elkum, some payment should be made to compensate for any loss of future income that may arise from possible future incapacity resulting from osteoarthritis. There is very little evidence to go on to fix this sum. This claim in my view cannot be very large and I fix it at K1,000.

The plaintiff is therefore entitled to receive from the defendant by way of damages:

For pain and suffering etc K6,000

For out-of-pocket expenses 240

For loss of future earnings K1,000

Total K7,240

He is entitled to interest on the general damages for the period from the date of the issuing of the writ of summons, 10 June 1988, to the date on which judgment is delivered, 9 November 1989. This sum is, at 8 per cent interest, K680.

All told, the defendant should pay Iwai Genbi K7,920.

COSTS

Although Iwai Genbi has received an award of damages below the maximum payable in the District Court, because his action was tried jointly, by consent, with the action of Wenam Elkum who has received an award in excess of the jurisdiction, he should not get costs only on the District Court schedule. It would not have been in the interests of justice to have had one of these cases, both arising from the same accident, tried in the District Court and the other in the National Court.

The defendant is to pay the costs of both plaintiffs.

[His Honour then considered the claim for contributory negligence in a manner not calling for report.]

Judgments accordingly

_____________

Lawyer for the plaintiff: W Neil.
Lawyer for the defendants: State Solicitor.