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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 1246 of 1996
BETWEEN:
ROSELYNE CECIL KUSA
AND:
MOTOR VEHICLE INSURANCE (PNG) TRUST
Defendant -
WAIGANI: GAVARA – NANU, J
2002: 14th, 15th March, 11th April
2003: 24th January
MOTOR VEHICLES (THIRD PARTY INS) ACT, CHAPTER NO. 295 s. 54 (6) – Notice of Intention to Claim – Notice signed and sent to the Trust by the plaintiff’s lawyers with full instructions from the plaintiff – Such notice is given or deemed to have been given by the plaintiff or the claimant pursuant to s. 54 (6) of the Act.
PRACTICE & PROCEDURE – Where a party is allowed by the other to raise and litigate a matter or issue not pleaded in the pleadings, the party allowing such matter to be litigated cannot object to that other party from addressing the issue by reason of the matter or issue not having been pleaded, so long as the matter or issue is within the ambit of the issues pleaded.
JUDICIAL PRECEDENT - A Supreme Court decision is not binding if the circumstances upon which the decision is made are distinguishable or where the decision is out of line with other authorities or established principles or where the decision is obscure or inconclusive and thus not capable of being a precedent.
WORDS AND PHRASES – Words ‘without prejudice’ – Correspondences headed ‘without prejudice’ – The circumstances in which such correspondence may not be privileged.
EVIDENCE – Medical reports – Expert witnesses -Conflicting medical opinions – The Court’s exercise of its discretion in respect of such evidence – Opinion which is logical and consistent with the overall evidence is to be preferred.
WORDS AND PHRASES – Words ‘public street’ – The meaning thereof – Motor Vehicles (Third Party Insurance), Act, Chapter No.295, s.1. – Public street or road is that which the public use or have access to.
SPECIAL DAMAGES – Special damages being exceptional in character must be specifically claimed and strictly proved – Such damages cannot be inferred in law.
MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT, CHAPTER NO.295, s.54(6) - Motor Vehicles Insurance Trust –– Notice of intention to claim - Sufficiency of such notice - Duties of the Trust as a public institution in respect of such notice– The circumstances in which a claimant may claim estoppel by acquiescence against the Trust.
Facts.
The plaintiff who was a teller with the Westpac bank in Kimbe was involved in a motor vehicle accident on 6th May, 1994, at about 7.00 pm near Kimbe town. At the time of the accident, she was a passenger in a passengers’ motor vehicle (hereinafter referred to as ‘the PMV’), and was sitting in the front left seat, next to the driver. The driver of the PMV was speeding before the accident, and was therefore, not able to avoid the hino truck which was travelling ahead of the PMV, when the hino truck slowed down at a round about. The PMV crashed front on to the back of the tray of the hino truck, as the result, the plaintiff was pinned in her seat for about half hour before being freed. The front left door of the PMV next to the plaintiff’s seat was jammed and could not open, so it had to be broken to free the plaintiff. Apart from the lacerations and bruises to the body, the plaintiff sustained a big cut below her left knee and both knees were injured. Straight after the accident, the plaintiff was admitted at the Kimbe General Hospital, and was discharged the next day. She later developed serious complications including constant pains and severe swellings in the knees due to standing for long hours during her work. That eventually forced her to resign from her employment on 8th February, 2000.
The plaintiff engaged Sialis Tedor & Associates Lawyers to make a claim against the Motor Vehicles Insurance Trust. Upon the instructions given by the plaintiff, on 8th July, 1994, her lawyers sent a letter of her intention to claim damages under s. 54(6) of the Motor Vehicles (Third Party Insurance), Act, Chapter No. 295., to the Trust. The Trust on 5th September, 1994, in a letter headed ‘without prejudice’ acknowledged the plaintiff’s lawyers’ letter and advised that it was making its usual inquiries.
The plaintiff was examined by five doctors who all prepared reports on the plaintiff’s injuries. One of the doctors found no complications at all in both knees. But two of the doctors found that the plaintiff had developed serious complications in both knees, which would affect her for the rest of her life. Two other doctors only gave general reports.
Held.
Cases cited:
MVIT -vs- Salio Tabanto [1995] PNGLR 214
MVIT –v- James Pupune [1993] PNGLR 370
MVIT –v-Viel Kampu –v- MVIT - SCA No.587
Graham Rundle –v- MVIT No. (1) [1988] PNGLR 20
Graeme Rundle –v- MVIT [1987] PNGLR 44
Michael Kong –v- MVIT – N1349.
MVIT -v- Etape [1994] PNGLR 596
Veronica Lapiso –v- MVIT – Unreported – 1996
Joy Kawai -v- MVIT – N1651
Tinange Tamase –v- MVIT [1992] PNGLR 244
Stanley Tendi –v- MVIT [1996] PNGLR 379
Paul Kumba –v- MVIT – N2132
Daniel Hewali –v- PNG Police Force & The State – Unreported 27th March, 2002
Cathy Robert Kolum & Ors –v- MVIT – N1998
Jones –v- MVIT [1988-89] PNGLR 611
Walter Roth –v- Ok Tedi Mining Limited – N1788
Tambi –v- The State [1988-89] PNGLR 648
Kuli Gokam –v- The State – N826
Kiak –v- Tora Enterprises Pty Ltd & MVIT [1986] PNGLR 265
Collins –v- MVIT [1990] PNGLR 580
Other cases cited:
Scruttons –v- Midland Silicones Ltd [1961] UKHL 4; [1962] 2 WLR 186
Elder Dempster & Co. Ltd –v- Paterson Zochonis & Co. Ltd [1924] A.C 522
Stroms Bruks Aktie Bolag –v- John and Peter Hutchinson [1956] A.C 515
British Transport Commission –v- Gourley [1955] UKHL 4; [1956] A.C 185
Gould and Birbeck and Bacon [1916] HCA 81; (1916) 22 CLR 490
Merchantile Mutual Ins. Co. Ltd –v- W. Turner Pty Ltd [1982] 1 NSWLR 728
Jackson –v- Jackson [1970] 2 NSWR 454
Tomilinson –v- Standard Telephone Cables [1969] 1 WLR 1370
Counsel:
K. Kua with J. Naipet for the Plaintiff
P. Honey for the Defendant
GAVARA-NANU J. The plaintiff is claiming damages against the defendant for injuries she sustained in a motor vehicle accident on 6th May, 1994.
Background facts
On Friday, 06th May, 1994, the plaintiff worked late till 5.00pm to balance the cash taken on that day. At that time, she was employed by the Westpac bank in Kimbe, as a teller. Because it was difficult to catch transport to where she was living, she decided to wait for a passengers’ motor vehicle (hereinafter referred to as ‘the PMV’), with a friend named Louisa. She and Louisa waited until a PMV arrived at about 6.30pm. They boarded the PMV and left Kimbe town to go home. The PMV they got on was a 15 seater bus owned by a Mr Moses Sindiwan with the registration number 856Q. The plaintiff sat at the front left seat next to the driver and Louisa sat in a middle seat. They both had their seat belts on. The weather that day was clear in the morning but it rained heavily in the afternoon, so at the time the plaintiff and Louisa boarded the PMV, there was mist and the road was slippery. The plaintiff said when they were traveling home, a hino truck owned by the West New Britain Oil Palm Limited was traveling ahead of them. She said because of the mist, the visibility was poor but despite that, the driver of the PMV was speeding. When they reached a round about, the driver of the PMV was surprised to see the tray of the hino truck which had braked suddenly so close to them. By then, it was too late for the PMV driver to avoid the hino truck, so the PMV crashed front on, to the back of the hino truck. She said, she was ‘squeezed‘ into her seat by the tray of the hino truck.
She said she temporarily blacked out and was in a state of shock. She was pinned onto her seat by the tray of the hino truck for about 30 minutes before she was freed. She said, she felt like she had an electric shock or was struck by a lightning. The accident happened at about 7.00 pm and she was not freed until about 7.30 pm. The front left door of the PMV next to where she was sitting could not be opened, so it had to be broken to free the plaintiff. The plaintiff said when she was finally freed, her legs were numb and she could not stand on her feet, let alone walk.
The plaintiff sustained cuts on her left calf, abdomen and thighs. Her two knees also sustained injuries. She was bleeding from the cuts and bruises but the bleeding from the cut to the calf was heavy. She got admitted at the Kimbe General Hospital that night and was placed on observation for 24 hours. She was treated for cuts and bruises and was given three injections. She was discharged the next day, but was put on injection for five more days. She stayed away from work for two weeks. Although she was able to resume work, she was forced to resign from her work six months after the accident, because as a teller she had to stand for six to seven hours every day, which she found very difficult. Because by then, the pains in her knees were progressively getting worse and she was experiencing constant pains and swellings in the knees. In the result, her work performance was also being seriously affected. The plaintiff said, she had to continue working because of her children until she could not bear the pains and swellings any more. She had five children aged between 12 and 21. The eldest is crippled, while the rest were in schools. She told her employer that, she could not continue working with her condition, so the employer allowed her to resign from her work on 28th February, 1995.
At the time of her employment with Westpac bank, she was earning K135.70 net per fortnight.
The plaintiff was issued with a Certificate of Service on 27th June, 1995, by her employer. On 29th February, 2000, in a letter of acknowledgement by her employer for her services, the employer referred to the injuries she suffered in the accident as the reason for her resignation from her employment.
Some time after the accident, the plaintiff instructed Sialis Tedor & Associates to help her lodge a claim against the defendant. Thereupon, a letter was sent to the defendant by her lawyers, notifying the defendant of the plaintiff’s intention to make a claim against it for the injuries she sustained in the accident. The plaintiff told the Court that, that letter constituted her notice under S. 54(6) of the Motor Vehicle (Third party Insurance) Act, Ch. No. 295, (hereinafter referred to as ‘the Act’ ).
The letter by her lawyers to the defendant is dated 8th July, 1994, which was addressed to the Claims Manager of the Motor Vehicles Insurance (PNG) Trust, ( hereinafter referred to as ‘the MVIT‘’), the defendant . Attached to that letter were the police accident report and the medical reports on the injuries sustained by the plaintiff. That letter was acknowledged by the defendant in a letter dated 5th September, 1994. The plaintiff was later given a copy of that letter.
When the plaintiff was hospitalized after the accident, she incurred personal expenses from payments for medical treatments including an x-ray. She was also seen by a number of doctors. She paid for one of the medical reports prepared by one of those doctors.
In 1996, the plaintiff applied for a position of an Accounts Clerk with the West New Britain Provincial Government, but her application was unsuccessful. She then applied for a similar position with the Musa Local Level Government. Although, that application was successful, she was only employed as a casual and was only paid K120.00 per fortnight. She later applied for permanency in that position but was unsuccessful. She sought permanent employment elsewhere for positions with better pay but without success.
She later worked as a volunteer for the West New Britain Provincial Council of Women, for which, she was paid sitting allowances of K 20.00 per sitting. There were eight sittings in a year, so in one year she was paid K 160.00 in sitting allowance. She was also paid K400.00, per quarter, so in a year, she was paid, K1,600.00. Therefore the total amount she earned in a year was K 1,760.00.
These facts are not disputed.
Evidence
One of the witnesses the plaintiff called was Mr Kevin Yore, he is the Claims Manager with the Queensland Insurance. Mr. Yore said he is familiar with the plaintiff’s case because his company looks after the insurance for the employees of the Westpac bank, and in the plaintiff’s case, he made funds available for the purchase of the airline tickets for the plaintiff and Mr. Moses Sindiwan to travel from Kimbe to Port Moresby to attend the trial.
Mr. Moses Sindiwan, who gave evidence for the plaintiff explained that in 1993, his bus (MV) was involved in an accident in Kimbe, so he took it to a Mr Ronnie Boas’ workshop to be repaired. At that time, the number plate for the PMV was P. 5997. After the bus was repaired, he was invoiced by Mr Boas for his services, but because he had no money to pay Mr Boas, he told Mr Boas to use the bus to recover his costs, and after he had recovered all his costs, he was to return the bus to him. But, Mr. Boas never returned the bus to him, and while Mr. Boas was using the bus, its registration expired. Mr. Boas then registered the bus under his name, and changed the number plate to P. 856Q.
Mr. Sindiwan told the Court that, the vehicle still belongs to him although it was registered in Mr. Boas’ name. He said the old registration papers are in his house in Kimbe. He said, he does not know why Mr. Boas changed the number plate.
When the plaintiff sought to tender the airline ticket for Mr. Sindiwan, the defence objected and argued that the ticket was not part of the plaintiff’s personal expenses, as it was purchased by the Westpac bank insurer. The counsel for the plaintiff on the other hand argued that the ticket was plaintiff’s personal expense, because, if she is successful in her claim against the defendant, she will reimburse the bank’s insurer for the cost of the ticket. The objection was overruled and the ticket was received in evidence. The defendant did not object to the tender of the plaintiff’s airline ticket.
When the plaintiff sought to tender the letter by the defendant’s Claims Manager dated 5th September, 1994, which acknowledged the plaintiff’s lawyers’ letter of notice of claim, counsel for the defendant also objected and argued that, because the letter was headed ‘without prejudice’, if it was received in evidence, it would prejudice the defendant. The objection was overruled because the letter was only an acknowledgement of the plaintiff’s lawyers’ letter.
Following medical reports on the plaintiff’s injuries were tendered by consent – report by Dr Kaptigau, dated, 10th May, 1994, report by Dr Pumpara, dated 1st June, 1995, report by Dr Tonar, dated 19th August, 1996, report by Professor Watters, dated 30th April, 1999, and report by Dr Popei, dated 8th March, 2002.
The defendant did not call any witnesses; it only relied on the evidence which were before the Court.
Reasons for decision
The case turns on two issues, first is whether the plaintiff gave notice of her intention to claim against the defendant in accordance with s. 54 (6) of the Act, and second, whether the PMV in which the plaintiff had the accident on 6th May, 1994, was insured at the time of the accident, and if not, whether the road in which the accident occurred was a public road. If the plaintiff did give notice of her intention to claim in accordance with s. 54 (6) of the Act, and that the PMV was insured or uninsured but the road in which the accident occurred was a public road, then the defendant is liable to the plaintiff’s claims.
I will address the two issues separately.
The issue of ‘notice’.
(i) The defendant’s pleadings (Defence) in respect of ‘notice’.
The defendant totally denied in its pleadings that the plaintiff ever gave a notice in accordance with S. 54 (6) of the Act. This is born out by paragraphs 3, 4 and 5 of the original Defence and paragraph 8 of the amended Defence. The defendant pleaded that the plaintiff did not give any notice because, the plaintiff’s lawyers’ letter of notice was given on or about 12th July, 1995, which was six months after the accident on 6th May, 1994, and outside the statutory period, under s.54 (6) of the Act. This point is discussed further in the judgement.
(ii) The defendant’s oral submissions on the issue of notice
In its final oral submissions, the defendant changed its defence from total denial as in its pleadings to argue that the plaintiff’s notice was insufficient, therefore did not comply with s. 54 (6) of the Act. This argument was based on the contention that the plaintiff’s letter of notice only alerted the defendant of a possible claim against it. This was of course a departure from its pleadings. The plaintiff took objection and argued that the defendant made a total denial in its pleadings that, the plaintiff gave a notice; it was therefore bound by its pleadings and could not depart from it. The counsel for the defendant in reply submitted that it was too late for the plaintiff to take objection because the plaintiff had already closed its case and the objection raised a new issue for which the plaintiff had to obtain leave of the Court to reopen her case if she wanted to press her point. The counsel for the defendant further submitted that, in any case, the plaintiff had already given evidence on the issue and had been cross-examined on it, it was therefore too late and improper for the plaintiff to turn around and object to the defendant from making submissions on the issue of sufficiency of notice.
The objection was overruled because it was the Court’s view that, the plaintiff having allowed the issue to be litigated by the parties, it was too late and improper for her to turn around and object to the defendant from making submissions on the issue. By principles of equity and fairness she was estopped by her own conduct from raising the objection. The defendant had the right to make submissions on the issue.
The stand taken by the plaintiff in objecting to the defendant from making submissions on the issue after allowing the issue to be litigated was akin to harking back. The case of MVIT –v- James Pupune [1993] PNGLR 370, illustrates the hark back principle. Although, James Pupune applied the principle on appeal, I consider that the principle is equally applicable in trials, where one party allows the other to depart from its pleadings and allows that party to raise and fight the issue at the trial then later tries to complain by raising objections. In both situations, objection is unfair because, it should have been taken earlier. See also MVIT –v- Salio Tabanto (1995) PNGLR 214 at page 222.
This point is succinctly stated in the joint judgment of Isaacs and Rich JJs in the case of Gould and Birbeck and Bacon, [1916] HCA 81; (1916) 22 CLR 490. The passage I refer to, was quoted by the Supreme Court in James Pupune, where the Court at page 517 said:
"But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only. See, for instance Nevill –v- Fine Art and General Insurance Co [1896] UKLawRpAC 58; (1897) AC 68 at p 76; Browne –v- Dunn 6 R 67 at p 75, the relevant passage being quoted fully in Rowe –v- Australian United Steam Navigation Co [1909] HCA 25; 9 CLR 1, at p 24." (my underlining).
Then in the subsequent case of MVIT –v- Etape [1994] PNGLR 596, the Supreme Court at page 599 said:
"We would reiterate what this Court said in MVIT –v- Pupune, that where evidence is led without objection; a court is entitled to make findings on the basis of such evidence, provided it is within the general ambit of the plaintiff’s claim ".
In this case, the plaintiff had maintained throughout that her notice was sufficient for the purposes of s. 54(6) of the Act.
(iii) Defendant’s written submissions on the issue of notice
At that end of the oral submissions, the parties were invited to file extracts of their submissions.
The defendant in its written submissions raised three areas of defence, first is the defence it raised in the pleadings which was the total denial of any notice under s. 54 (6) of the Act, been given by the plaintiff because the notice was given on or about 12th July, 1995, which was more than six months from 6th May, 194, thus outside the statutory period, and second was the defence of insufficient notice it raised during the oral submissions, based on the contention that letter only alerted the defendant of a possible claim, and third was that, the plaintiff’s letter of notice did not comply with s.54(6) of the Act, because it was not signed by the plaintiff as the claimant.
These in fact constitute the defendant’s defence to the plaintiff’s claim. I will discuss and determine each of them separately: -
(i) No notice was given by the plaintiff because the letter of notice by the plaintiff’s lawyers was given on or about 12th July, 1995; which more than six months from 6th May, 1994, thus outside the statutory period under s.54(6) of the Act.
The date, 12th July, 1995, which the defendant says was the date the plaintiff’s letter of notice was given to the defendant was adopted from paragraph 8 of the original Statement of Claim and paragraph 10 of the amended Statement of Claim. These two paragraphs purportedly give the date of the letter of notice by the plaintiff as 12th July, 1995.
Paragraphs 3, 4 and 5 of the defendant’s original Defence deny paragraph 8 of the original Statement of Claim and say that the letter of notice was not given within six months from 6th May, 1994, (date of the accident) as required by s. 54 (6) of the Act, because, it was given on 12th July, 1995, and paragraph 8 of the defendant’s amended Defence, also denies paragraph 10 of the amended Statement of Claim, which also gives the date of the plaintiff’s letter of notice as 12th July, 1995.
Section 54 (6) is under PART IX of the Act, and it deals with – CLAIMS AND ACTIONS FOR DAMAGES. It provides:
(6) No action to enforce any claim under this section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company within a period of six months after the occurrence out of which the claim arose, or within such further period as –
- (a) the commission, or
- (b) the court before which the action is instituted on sufficient cause being shown, allows. (my underlining).
In the course of writing this judgment, I noted that the date of the letter of notice by the plaintiff in paragraph 8 of the original Statement of Claim was amended from 12th July, 1995 to 8th July, 1994. This was effected by amending the figure 12th to 8th, month of July, was not amended, but the figure 5 in 1995 was amended to 4; hence, 8th July, 1994. So, the date of the letter of notice by the plaintiff according to these amendments was 8th July, 1994. The amended date corresponds with the date of the letter of notice sent by the plaintiff’s lawyers to the defendant.
However, the amended date of 8th July, 1994, in paragraph 8 of the original Statement of Claim does not appear in paragraph 10 of the amended Statement of Claim, the date given there for the plaintiff’s letter of notice is still 12th July, 1995.
I needed clarification on the amended date from 12th July, 1995, to 8th July, 1994, in paragraph 8 of the original Statement of Claim as opposed to 12th July, 1995, in paragraph 10 of the amended Statement of Claim, I therefore reconvened the Court on 8th October, 2002, and pointed out to the counsel the conflicting dates, and sought clarification particularly from the counsel for the defendant on whether the defendant would still maintain the date of the letter of notice by the plaintiff as 12th July, 1995, in which case the letter of notice was clearly outside of six months from 6th May, 1994, or would the defendant agree that the date of the letter of notice was 8th July, 1994, in which case, it was given within the six months period as required by s. 54(6) of the Act. The counsel for the defendant advised the Court that the defendant conceded that the date of the letter of notice by the plaintiff was 8th July, 1994, which is also the date of the letter of notice which the plaintiff’s lawyers sent to the defendant. The counsel for the defendant also agreed that the defendant through its Claims Manager in a letter dated 5th September, 1994, acknowledged the letter by the plaintiff’s lawyers bearing that date.
So, the defendant having conceded that the date of the letter of notice by the plaintiff as 8th July, 1994, the first area of defence raised by the defendant must fail because, it has by that concession agreed that the plaintiff’s letter of notice was sent within the six months statutory period.
(ii) The notice was not given by the plaintiff as the claimant, as required by s. 54 (6) of the Act, because it was signed and sent to the defendant by the plaintiff’s lawyers.
It was contended for the defendant that the letter of notice to claim against the defendant was not given in accordance with S. 54 (6) of the Act, because the plaintiff’s lawyers who signed and sent the letter did not have the authority of the plaintiff as the claimant, to do so. This argument was based on the plaintiff’s evidence that she did not authorize her lawyers to write to the defendant. The defendant argued that the letter cannot constitute a notice within the meaning of s. 54 (6) of the Act, because the section specifically provides that the notice must be given by the ‘Claimant’ . The defendant quoted the excerpt of the evidence given by the plaintiff during the trial where she said:
"I did not authorize him. He prepared it and then later on, I knew about it".
On this point, the defendant referred to the case of MVIT –v- Viel Kampu SCA No. 587 of 1996, where the Supreme Court at page 5 of its judgment cited with approval a passage from Salika J’s judgment in Veronica Lapiso –v- MVIT - OS No. 410 of 1996 (Unreported), where Salika J said: -
"Section 54 (6) speaks of the Claimant giving notice and the Claimant giving sufficient cause. Veronica Lapiso is the Claimant who should be giving notice of intention to make a claim against the defendant. She is not doing that in this case. If she is disabled from bringing her own actions, then the provisions of Order 5 Rule (sic) 18-22 cater for persons such as her. The lawyers have not used those provisions. Again this is basic fundamental to these proceedings"
The defendant went on to quote a passage in page 7 of the judgment in MVIT –v- Viel Kampu where the Supreme Court in reference to Salika J’s judgment in Veronica Lapiso – v- MVIT said:
"We are satisfied that this correctly states the law and is directly relevant to the situation in this appeal ".
The passage by Salika, J. in Veronica Lapiso –v- MVIT, having been approved or adopted by the Supreme Court in MVIT-v-Viel Kampu, would be binding on me, as a single judge, but, is it binding on me? To answer this question, it is necessary to look closely at the circumstances or the facts in MVIT–v-Viel Kampu, which necessitated the Supreme Court to adopt the passage by Salika, J. in Veronica Lapiso –v- MVIT.
The case of MVIT -v-Viel Kampu, was an appeal against the decision of the National Court in Mt Hagen on 19th April, 1996, which granted the respondent extension of time to give notice of claim to the appellant, under S. 54 (6) of the Act. The application for extension of time was not given by the respondent or the claimant, as required by S. 54 (6) of the Act, but it was given by the respondent’s lawyer. On appeal, the Supreme Court said, the lawyer had no authority to apply for extension of time, and the appeal was allowed.
I find MVIT -v-Viel Kampu to be distinguishable in circumstances from this case. In that case, the Supreme Court was considering the application by the lawyer for an extension of time for his client to give notice of a claim, after the Insurance Commissioner had refused the earlier application for extension of time by the respondent or the claimant. There were other matters as well, for instance, there were serious doubts as to the authenticity of certain documents attached to the affidavit deposed by the lawyer in support of the application by him. The authors of the documents appeared to be persons other than the respondent and they needed verification. The documents therefore clearly appeared inadmissible.
More unique aspect of the case was that, after the lawyer had advised the respondent that his application for extension had been refused by the Insurance Commissioner, the lawyer asked for a fee deposit from the respondent, obviously for the purposes of pursing the matter further in Court which is exactly what happened. But that was the last the lawyer saw of the respondent, because the respondent never returned and never paid the fee deposit the lawyer requested of him.
Further more, the refusal by the Insurance Commissioner of the respondent’s application for extension of time to give notice of his claim was given on 20th June, 1995. That refusal was not conveyed to the respondent by his lawyer until 16th October, 1995. The application by the lawyer for extension of time which was the subject of the appeal was made on 11th March, 1996, almost nine months after the Insurance Commissioner had refused the first application by the respondent. The application by the lawyer in those circumstances was clearly without the knowledge and authority of the claimant. The Supreme Court in page 7 of its judgment in MVIT –v-Viel Kampu, quoted parts of the judgment by the trial judge covering these points:
"On 16th October, 1995, Mr Kopunye advised the Applicant about the refusal and sought a fee deposit. That was the last he saw of his client. Applicant never returned with the fee deposit. Mr Kopunye however, decided to protect his client’s interest because his client sustained injury which "were quite serious and .... If nothing is done, it could or may affect his general livelihood ..... so on 11th March, 1996, he (Mr. Kopunye) instituted these proceedings"
Taking into account all these circumstances, the Supreme Court held that the lawyer plainly did not have the authority of the respondent to seek the extension of time on behalf of the respondent.
The Supreme Court expressed this at pages 7 – 8 of its judgment:
"In fact Counsel was not empowered or authorized to seek extension of time on behalf of the respondent. Any application had to be made by the respondent himself or explanation given as to why he was unable to do so in person. It is plain in this case, that Counsel made application without any instructions to do so. From his own affidavit it is obvious that he had no such instructions. He was plainly without any authority to make a claim and or give notice of claim. In our view it was not open on the facts before the learned trial judge to assume that there was in place a lawyer/client relationship. Counsel before us sought to argue that he was acting on a "standing instruction" We do not accept that. And had that been the case, application could have been made to the National Court in June or July of 1995, that was not done and even if there had been such an instruction, there has been no explanation for the excessive delay between then and March, 1996,in bringing an application to the Court." (my underlining).
It was in the context of all these circumstances that the Supreme Court cited with approval the passage by Salika J, in Veronica Lapiso –v- MVIT.
In MVIT –v-Viel Kampu, the Supreme Court did say that the application should have been made by the claimant as required by S. 54 (6), but then, went on and enlarged the ratio and qualified it. The qualifications can be seen in the passage of the judgment quoted above. The passage, highlights the following points: -
(i) There were no instructions from the respondent to his lawyer to apply for extension of time on his behalf. The lawyer therefore, clearly acted without authority.
(ii) There were no facts before the trial judge to show that here was existing lawyer/client relationship upon which the trial judge could properly assume that the lawyer had instructions from the respondent to make the application.
(iii) Had the application been made either in June, 1995, which was the month in which the Insurance Commissioner refused the respondent’s application for extension of time or July, 1995, which was the month after the refusal, it could as a matter of practice be taken that such application was based on the standing instructions. Here, the application was made almost nine months after the refusal of the first application by the respondent.
(iv) Even if the application by the lawyer was based on standing instructions from the respondent, there was excessive delay in making the application.
Facts to satisfy points (i) to (iii) above were not before the Supreme Court, in the result, it found that the lawyer acted without authority. Then there was the excessive delay in making the application.
It is therefore clear that the circumstances in MVIT–v-Viel Kampu are different from those in the case before me. Therefore the ratio or the rationale applied by the Supreme Court in MVIT–v-Viel Kampu, which adopted the passage by Salika, J. in Veronica Lapiso –v- MVIT cannot be applied in this case, thus the ratio is not binding on me. The gist of the decision in MVIT–v-Viel Kampu is that there was no evidence of instructions been given to the lawyer by the respondent either expressly or impliedly, therefore the lawyer had acted without authority when applying for extension of time. In those circumstances, the application could not be regarded as having been made by the respondent or the claimant.
The rationale upon which I have held that the Supreme Court decision in MVIT –v- Viel Kampu cannot be binding on me is in my respective opinion supported by the principle uttered by Lord Reid in Scruttons –v- Midland Silicones Ltd [1961] UKHL 4; [1962] 2 WLR 186. There, Lord Reid at pages 197, 198 and 199, when discussing the circumstances in which a decision of a higher or supreme court or tribunal may not be binding said:
"The decision is binding on us, but I agree that the decision by itself will not avail the present appellants because the facts of this case are very different from those in Elder Dempster.
.......... Before dealing further with that case, I think it is necessary to make some general observations about the binding character of the rationes decidendi of this House. Unlike most supreme tribunals this House holds itself bound by its own previous decisions. That was the decision of this House in London Street Transways Co. Ltd –v- London Country Council [1898] A.C 375. But I can find no invariable practice with regard to rationes decidendi. In the first place it must be noted that only three years later Lord Halsbury said, in Quinn -vs- Leatheni [1901] A.C 495 at page 506: ..........there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it."
At page 199, his Lordship went on to say:-
"I would certainly not lightly disregard or depart from any ratio decidendi of this House. But there are at least three classes of case where I think we are entitled to question or limit it: first, where it is obscure, secondly, where the decision itself is out of line with other authorities or established principles, and thirdly, where it is much wider than necessary for the decision so that it becomes a question of how far it is proper to distinguish the earlier decision." (my underlining).
His Lordship was commenting on the binding effect or otherwise of another House of Lords decision in Elder Dempster & Co Ltd –v- Paterson, Zochonis & Co. Ltd [1924] A.C. 522.
As, I said, the facts and circumstances in this case are different to those in MVIT –v-Viel Kampu, therefore, applying the principle in Scruttons -v- Midland Silicones (supra), which I respectfully adopt, the ratio in the decision of the Supreme Court in MVIT–v-Viel Kampu is not binding on me, and for the same reason, the decision in that case cannot avail the defendant in this case.
It is not disputed that Sialis Tedor & Associates Lawyers were engaged by the plaintiff with appropriate instructions to take up her case, no doubt with the purpose of making a claim against the defendant, as she did, for her injuries. With that in mind, the excerpt from the plaintiff’s evidence upon which the defendant relies has to be considered subject to the rest of her evidence, in order to see what she actually meant by the statement. That is necessary because the statement prima facie appears to contradict the whole purpose of the plaintiff’s engagement of Sialis Tedor & Associates Lawyers, which was to lodge and pursue her claim against the defendant. The statement cannot be considered in isolation from her other evidence relative to the issue. In that way, the Court will be able truly determine whether the statement means what the defendant says it means or whether it means differently. In other words, the statement must be given its true and proper meaning.
The plaintiff’s statement when taken by itself, prima facie says that, she did not authorise her lawyers to write to the defendant. But when viewed in the light of her other evidence, the statement in my view has a different meaning to that given by the defendant. I think the defendant has given total reliance to the word ‘authorise’ in the statement. But when looking at the statement together with plaintiff’s other evidence both before and after it, it is clear that, the use of the word ‘authorise’ was a ‘slip’. Looking at the overall context in which the statement was used, it is clear that what the plaintiff said or meant to say was that, she ‘did not know’ or ‘had no knowledge’ of when the letter of notice was given by her lawyers to the defendant. That of course does not mean that, she did not authorise the lawyers to send the letter. They had her full authority when they sent the letter because they had her instructions to do so. There was solicitor/client relationship with standing instructions from her to pursue her claim against the defendant for her injuries. This is clearly born out by her other evidence.
The pertinent parts of such evidence appear both in the plaintiff’s evidence in chief and cross-examination. Following evidence appear in the evidence in chief.
Counsel : Roselyn, can you tell us how you are feeling now?
Plaintiff: Presently, I still feel the pain.
Counsel : After the incident, did you approach your lawyers to make a claim against the defendant on your behalf?
Plaintiff: Yes.
Counsel : Are you aware if they made a claim –a notice to make a claim?
Plaintiff: Yes.
Counsel : Which law firm did you .........?
Plaintiff: Fiocco Possman.
Counsel : No previous lawyers you saw in Kimbe?
Plaintiff: Previous lawyer was Sialis Tedor.
Counsel : Can I show you this letter? Is that the notice that Sialis Tedor gave to the Trust on your behalf?
Plaintiff: Yes.
Counsel : What is the date on the notice?
Plaintiff : 4th July, 1994.
Counsel : Who is it addressed to?
Plaintiff: It was sent to the Claims Manager, Motor Vehicles Insurance Trust, at that time in 1994.
Counsel : Did the Trust inform you that they received your notice?
Plaintiff: Yes.
Counsel : Can I show you this letter. Is that the letter from the Trust?
Plaintiff: Yes.
Counsel : What is the date on the letter?
Plaintiff: 5th September, 1994.
Counsel : Who is it addressed to?
Plaintiff : Sialis Tedor and Associates.
Then the following appear in her cross-examination, which led to the answer or the statement in question.
Counsel : I will show you Exhibit 3. Now you gave evidence earlier on that, that was a letter from Sialis Tedor to the Claims Manager
of Motor Vehicles Insurance Limited. Do you remember?
Plaintiff: Yes.
Counsel : Now, you did not write that letter, did you?
Plaintiff: I did not write this letter, there is a representative of Sialis Tedor at Kimbe during this time.
Counsel : So Sialis Tedor was your lawyer at that time?
Plaintiff: Sialis Tedor is not my lawyer.
Counsel : Not now, but then at that time?
Plaintiff: It is a technical question, I would like to put it to my lawyer to answer it.
Counsel : All right, well you have seen that letter before, did you see that letter – when was the first time you did see that letter?
Plaintiff: I saw this letter in 1996.
Counsel : Yes, go on.
Plaintiff : Sialis Tedor’s representative, he lives in Kimbe, he prepared this.
Counsel : Yes, alright, well he was an employee of Sialis Tedor, is that what you mean? This is alright, I understand that. He did come to see you and you told him about your accident and he wrote a letter for you. And you told him to go ahead and do that with your authority?
Plaintiff : Sorry?
Counsel : You authorised him, he was doing that for you?
Plaintiff : I did not authorize him. He prepared it and then later on I knew about it.
It is clear from these excerpts of the plaintiff’s evidence that, the plaintiff had given instructions to her lawyers and had authorized them to make and pursue her claim against the defendant. Her evidence in chief make that very clear.
Therefore, although the letter of notice does not bear her signature, it was a notice given upon her instructions and authorization, thus it was given or deemed to have been given by her as the claimant as required by s. 54 (6) of the Act. The letter of notice therefore complied with that statutory requirement. In the circumstances, it would be absurd, if I was to hold that the notice was not given by the plaintiff, just because the letter did not bear her signature. I am by no means adopting a new approach here because, the Courts have accepted the practice by lawyers giving s. 54 (6) notice to the Trust on behalf of their clients/claimants, see for instance, Joy Kawai an infant by her next friend Kawai Takeme –v- MVIT- N1651, Graeme Rundle –v- MVIT [1987] PNGLR. 44, Graham Rundle –v- MVIT [1988] PNGLR 20, Stanley Tendi [1996] PNGLR 379 and Paul Kumba –v- MVIT- N2132.
The case of MVIT –v- Viel Kampu had exceptional circumstances.
I hold these views bearing in mind also that, the plaintiff speaks English as a second language and there can be difficulties in the use or choice and expression of correct and appropriate English words.
For these reasons, I find that the notice given was proper and in compliance with s. 54(6) of the Act. It follows that the second defence raised by the defendant must fail.
(iii) The letter of notice was insufficient because it only alerted the defendant of a possible claim by the plaintiff against it. The notice therefore did not comply with s.54(6) of the Act.
The defendant argued that the plaintiff’s letter of notice in stating that "......it may be necessary to make a claim against the Trust", the plaintiff was simply alerting the defendant to the possibility of making a claim against it some time in the future. The defendant therefore said that it was not made aware by the plaintiff of her intention to make a claim against it.
The plaintiff’s lawyers’ letter of notice to the defendant and the defendant’s letter of acknowledgement of that letter are significant on this point, thus they are reproduced below: -
8th July, 1994
Our Ref: 2225: 3L
Claims Manager
Motor Vehicles Insurance (PNG) Trust
P O Box 1157
PORT MORESBY
National Capital District
Dear Sir,
RE : ROSELYN CECIL KUSA (INJURIED)
We act as Lawyers for the above named injured person who suffered injuries as a result of a motor vehicle accident near Kimbe on the Kimbe/Kapore Highway in the West New Britain Province, of Papua New Guinea on the 6th May, 1994.
This letter therefore is by way of Notice pursuant to Section 54 of the Motor Vehicles (Third Party Insurance) Act, Chapter No. 295, that it may be necessary to make a claim against the Trust.
In order to facilitate you in your consideration on the question of liability, we enclose herein a copy of each of the Police accident and medical reports. Accordingly, we await your advise in due course.
Yours Faithfully,
SIALIS TEDOR & ASSOCIATES
ORIM G. KIVU
Encl.
Then the defendant’s letter of acknowledgement:-
MOTOR VEHICLES INSURANCE (PNG) TRUST
Your Ref: 2224:3L
2223:3L
2225:3L
Our Ref: 21/04/017
September, 5, 1994
"Without Prejudice"
Sialis Tedor & Associates
Lawyers
P O Box 1632
RABAUL
East New Britain Province
Dear Sir,
RE : (1) ANGELA MATU
(2) LOUISA WARTOVO
(3) ROSLYN CECIL KUSA
We acknowledge receipt of your letter dated 8th July, respectively with regard to the above matters. We do apologise for the oversight and the late reply is regretted. Nevertheless our usual enquiries are being conducted at the moment.
Yours Faithfully,
(signed).
For : Claims Manager
I am of the firm view that this argument must fail, because when the part of the plaintiff’s letter of notice upon which the defendant relies is read together with the rest of the letter, it is clear that the plaintiff was making the defendant aware of its intention to make a claim against it as required by s. 54 (6) of the Act.
The plaintiff’s letter of notice is in three paragraphs, the first paragraph informed the defendant of the injuries suffered by the plaintiff in the accident, the location of the accident and the date of the accident. The second paragraph, informed the defendant that the letter was by way of notice pursuant to S. 54 (6) of the Act. That in my view embraces all the necessary elements required for the notice under S. 54 (6) of the Act. The second paragraph then concludes by saying, "it may be necessary to make a claim against the defendant" This is the part the defendant places its reliance upon. But, the letter does not end there, because the third and last paragraph, says:
"In order to facilitate you in your consideration, on the question of liability, we enclose herein a copy of each of the Police accident and medical reports. Accordingly, we await your advise in due course". (my underlining)
The last paragraph of this letter in my opinion makes it very clear that the plaintiff had put the defendant on notice or made it aware of her intention to make a claim against it. This view is affirmed by the phrase ‘on the question of liability’ in the paragraph. By this phrase, it can only mean that the plaintiff was notifying the defendant of her intention to make a claim for damages against it. The paragraph is significant because, it also indicates that, the police accident report and the medical reports on the plaintiff’s injuries were sent to the defendant. These reports were important elements of the notice because, they gave the necessary particulars of the vehicles involved in the accident, their registration numbers, the date, location and the time of the accident and the injuries suffered by the plaintiff. They put to rest the issue of sufficiency of notice, because they contain the informations the defendant would have needed to do its inquiries. The letter was thus a full and substantive notice by the plaintiff of her intention to make a claim against the defendant.
In any case the sufficiency of notice cannot be an issue for the defendant because as can be noted from the defendant’s letter of acknowledgement, the plaintiff’s notice is sufficient because the defendant upon receiving the letter had started making its own inquiries about the plaintiff’s claim.
The defendant did not make any complaints about the notice, and the defendant by its conduct can only be taken to have accepted the notice as sufficient and valid. See, Joy Kawai an infant by her next friend Kawai Takeme –v- MVIT (supra). In that case, the plaintiff claimed that he sustained injuries in a motor vehicle accident on 17th December, 1991, along the Okuk highway between Wapenamanda and Wabag. On 25th February, 1993, the plaintiff’s lawyer gave notice to claim against the Trust without obtaining approval for an extension of time from the Insurance Commissioner or the Court as required by s. 54 (6) of the Act. Then on 13th April, 1993, the lawyer applied to the Insurance Commissioner for extension of time.
On 6th May, 1993, the Commissioner approved an extension of 28 days. On 24th May, 1993, the lawyer forwarded a copy of the Insurance Commissioner’s letter to the Trust and reminded the Trust of the plaintiff’s letter of notice dated 25th February, 1993. The lawyer did not enclose a copy of that letter to the Trust.
Then on 24th August, 1993, the lawyer wrote to the Trust seeking advise on whether the motor vehicle in which the plaintiff was injured was insured. The Trust, in acknowledging the receipt of the letter advised the lawyer that the letter did not constitute a formal notice to the Trust as required under s. 54 (6) of the Act. In a letter dated 14th October, 1994, the lawyer told the Trust, that his letter of 24th August, 1993, was not intended to give notice of the claim, it was merely asking for the availability of any insurance certificate on the vehicle.
Injia J, at pages 3 of his judgment said:
"If Mr. O’Connor (lawyer) attached a copy of his letter of 25th February, 1993, to this letter (letter of 24th May, 1993, to the Trust) then it could be fairly said that the letter of 25th February, 1993, coupled with the extension letter plus the covering letter of 24th May, 1993, amounted to notice or sufficient notice under S. 54 (6) of the Act, ....... But the present case is different in that Mr. O’Connor did not attach a copy of his letter of 25th February, 1993".
The situation in this case may have been different had the Trust not acknowledged the plaintiff’s letter of notice. Here, the defendant acknowledged the plaintiff’s letter of notice, then went on to advice the plaintiff that it was making usual inquires. To my mind there can be no question that the purpose of the letter of notice by the plaintiff was realized, once the defendant started making its own inquires on the claim. The defendant cannot then turn around and say the notice was in sufficient, see, Graham Rundle –v- MVIT No. (1) (supra) at page 24; see also, Michael Kong –v- MVIT –N. 1349 at page 4.
For these reasons, I find that the plaintiff’s letter of notice was sufficient. It follows that the third defence raised by the defendant must also fail.
There is another matter regarding the defendant’s letter of acknowledgement to the plaintiff’s letter of notice which I must comment on before I move on to the next point - I am fully aware that I have commented fully on the defendant’s letter of acknowledgement which was headed ‘without prejudice’. The letter was admitted into evidence only on the basis that, it was an acknowledgement of the plaintiff’s lawyers’ letter, and was to have no bearing on the defendant’s liability to the plaintiff’s claims. But after a close look at the letter, I am of the opinion, that there was no proper basis for the letter to be headed ‘without prejudice’, because the letter was not for purposes of negotiating a settlement, nor was there any agreement between the parties for such a settlement. In other words, there was nothing in that letter which could render the defendant liable to the plaintiff’s claims. The letter simply acknowledged the plaintiff’s lawyers’ letter and advised the plaintiff that the defendant was making its own inquires on the claim. It was a mere label which was unnecessary. There was no way the plaintiff could treat the letter as an admission of liability by the defendant to her claims.
There is another reason why the letter has to be considered by the Court. The issue of sufficiency of notice raised by the defendant could not be properly and fully considered by the Court without having the benefit of seeing and considering the letter in its entirety.
It is for these reasons that I have considered and commented fully on the letter. I consider that I find support in this approach in a couple of cases where correspondences bearing ‘without prejudice’ and their significance, were considered, first is the case of Tinange Tamase -v- MVIT [1992] PNGLR 244, where Doherty J. at page 251, said:-
"I note that the correspondence that has been presented to the Court is headed ‘without prejudice’.
The status of ‘without prejudice’ correspondence in negotiating settlement of claims for damages for injuries was considered at length in Tomlin -v- Standard Telephones & Cables Ltd [1969] 3 All ER 201 at 210.
The Court in that matter found that there was an agreement to settle the claims between the parties on a ‘50/50 basis’ and found, as a fact, that that correspondence amounted to an agreement. It was noted that all the correspondence was headed ‘without prejudice’, but it found that there was in the correspondence a complete contract and both parties intended to be bound by that contract, and so it was enforceable.
Hence, the words ‘without prejudice’ do not always alleviate a party from liability. Much depends on the facts." (my underlining)
Also, in the case of Tomlinson –v- Standard Telephone Cables [1969] 1W.L.R 1370, where Omon J. after referring to a number of cases on the use and the application of the words or phrase "without prejudice", said:
"From those cases, it seems to me that the principle which emerges is that the court will protect, and ought to protect so far as it can, in the public interest, "without prejudice" negotiations because they are very helpful in the disposal of claims without the necessity for litigation in court". (my underlining).
For these reasons, I was entitled to consider and comment fully on the letter.
There is another reason why the sufficiency of the plaintiff’s letter of notice cannot be queried - The police accident report and the medical reports which were attached to the letter of notice by the plaintiff were a vital part of the plaintiff’s notice, because, they provided the defendant with the informations it needed to do its inquires, see Graham Rundle No (1) (supra) at page 23. They formed part of the notice to claim by the plaintiff under s. 54 (6) of the Act. Had the plaintiff not attached these reports, the letter of notice in my opinion would have been rendered insufficient and thus would have failed to meet the requirement under s. s.54 (6). This would have been so, because the letter itself is silent on those vital informations. The significance of these informations was emphasized by BredmeyerJ. in Graham Rundle –v- MVIT No.(1) (supra), at page 23, when he said:
"A notice under S. 54 (6) is a notice to the Trust of an intention to claim, the writ of summons is the claim itself. The two are different although they normally provide the Trust with the same information including: the date and place of the accident, the name of the driver, and owner, and the registration number of the vehicle from which its insurance status can be ascribed."
Although Bredmeyer J., did not mention the police accident report, it is obvious that it is implied.
Similar views were expressed by Injia J. in Stanley Tendi –v- MVIT [1996] PNGLR 379 at page 383. These views have been cited and followed by the Courts, the recent cases being, Paul Kumba –v- MVIT – (supra) by Davani J, then Daniel Hewali –v- PNG Police Force & and The State – (Unreported March, 2002), by Kandakasi J.
The only differing view was expressed by Sevua J. in Cathy Robert Kolum as next friend of Salome Robert, Janula Robert and Peter Kolum –v- The MVIT – N. 1998, where his Honour said:
"With respect to my brethren, I do not agree with their views although, I consider that what they adverted to are relevant in a claim against the Trust. In fact, I share the first part of Injia J’s views, but not the rest of the paragraph quoted. To agree with their views, would mean sanctioning the definition of the word, ‘notice’, which is neither defined in s. 54 (6) of the Act, nor by the Supreme Court in Rundles’s case. I consider that, those views have given a very wide meaning of the word ‘notice’ than intended by the Parliament. In my view, "notice" given its ordinary meaning, means, writing to the Trust and notifying it of one’s intention to make a claim against the Trust. Of course, it is important to provide the date of accident and registration numbers of vehicles involved in an accident. However, to say that a claimant who gives notice within six months limit as required by law, has not given notice because details of vehicles, how the accident occurred etc, etc, were not included in the notice is quite absurd and ridiculous. It defeats the very purpose that the law intended."
This passage was quoted with disagreement by Kandakasi J, in Daniel Hewali –v- The PNG Police Force & The State (supra). His Honour at pages 10 and 11 of his judgment said:
"With the greatest respect, I am not in agreement with my brother Justice Sevua. I do so on the basis that, various judgments of both the Supreme and the National Courts, starting with the Supreme Court decision in Rundle’s case, make it clear as to the purpose of giving notice within the periods specified. It is to give early notice of an impending claim against (the Trust) so that, investigations can be carried out while the trail of evidence is still fresh to enable either the MVIT (or) the State as the case may be, to meaningfully decide whether or not to settle the intended claim when it is actually made against it. No such investigations could be carried out if no details of the kind spoken of by other judgments are disclosed or given. Simply stating that "I give you notice that I will make a claim against you" would serve no useful purpose particularly when Trust or the State are themselves not personally responsible for that which gives rise to the possible claim against them and lack any personal knowledge and involvement"
The views expressed by his Honour, there can be regarded as obiter dictum because his Honour was considering s. 5 of the Claims by and Against the State Act, 1991, when he expressed them. But they are significant because they in my view embrace the essence of the view held by the majority of my brethren.
Section 54 (6) of the Act, does not define the word ‘notice’, therefore it is open for the courts to give its meaning. But the meaning given must be for which the word is intended by the section and one which is sensible and reasonable. In other words, it must be given a fair and liberal meaning;
For myself, I agree with the view expressed by the majority of my brethren, in that, the claimant must provide all the necessary informations required for the notice under S. 54 (6) of the Act, which would enable the Trust to make its inquiries, such as those mentioned in Graham Rundle –v- MVIT No. (1). But I also agree with the view expressed by Sevua, J. in Cathy Robert Kolum & Ors, but in a qualified way. The view is significantly relevant to the circumstances of this country. His Honour did allude to this. In fact, same sentiments were echoed by Injia J; in Stanley Tendi –v- MVIT (supra) at page 383. Let me elaborate my reasons for assenting to the view, for what they may be worth. I think the view by Sevua J. in Cathy Robert Kolum & Ors, is relevant in a situation where the notice is given within the required six months statutory period by a claimant, but the relevant informations, such as those mentioned in Rundle -v- MVIT No.(1), which are necessary for the Trust to do its inquiries are not provided due to the ignorance of the claimant or where the claimant provides some of them and honestly thinks that the notice is sufficient but the Trust upon receipt of the notice knows or considers the notice to be insufficient, yet does nothing to notify the claimant of its view, and the statutory period is allowed to lapse. In such a case, the Trust in all fairness and honesty cannot say that the claimant had not given the notice. This I think was the essence of Sevua J’s point in Cathy Robert Kolum & Ors. The Trust in such a case, should take it upon itself to notify and request the claimant to provide further and better particulars necessary for its purposes. The claimant would then provide those informations obviously at the prompting of the Trust. But, if the Trust failed to inform the claimant that the notice in its view was insufficient, then the Trust would be deemed to have acquiesced in the notice; and the claimant would have the right to claim estoppel by acquiescence against the Trust.
Otherwise, such conduct would be a sufficient cause for the claimant to ask for extension of time to give the notice, which should be readily given, either by the Insurance Commissioner or the Courts, as the case may be.
The significance of this approach is the high number of illiterate claimants the Trust has to deal with most times, even among the literate claimants, the situation does arise.
The approach I have discussed here is in my view within the ambit and intent of s. 54 (6) of the Act, and indeed embraces the ordinary definition of the word ‘notice’. The significance of this approach lies in the fact hat the Trust as a public institution which always has the obligation to all premium payers and the public must be accountable, to all who deal with it, in particular the illiterate claimants. The Trust must be proactive in its dealings and be prepared and willing to resolve the claims brought before it in a fair way. It must be accommodating and must not conduct itself in the ways it is seen to be taking advantage of the ignorance of the claimants.
The scenario I have discussed above of course does not arise here because, in this case, I have already held that the letter of notice given by the plaintiff’s lawyers to the defendant was sufficient and thus complied with the requirements under s. 54 (6) of the Act.
Was the PMV insured at the time of the accident? if not, was the road on which the accident occurred a public road (street)?
There is evidence that the PMV was previously owned by Mr. Sindiwan with the registration No.P.5977. But, at the time of the accident, the PMV’s registration No. was P.856Q and was registered under Mr. Ronnie Boas’ name. The circumstances in which the ownership and the number plate changed have been discussed earlier in the judgement.
The plaintiff has alleged in the Statement of Claim that, the PMV was owned by Mr. Sindiwan at all material times. However, Mr. Gerald G. Venables, who is the General Manager with the defendant deposed in his affidavit that according to the defendant’s records, only a Toyota PMV with registration No. P.5997, was registered under Mr Ron Boas’ name from 22nd November, 1993 to 22nd November, 1994. This is confirmed by the Third Party Insurance Certificate No. 00945842, which was tendered in evidence.
Another document which was also tendered in evidence is the Official Renewal Form, purportedly granted by the West New Britain Land Transport Control Board. This is for the renewal of the PMV license issued to Mr Moses Sindiwan for a Toyota 15 seater bus. The renewal was apparently for he old PMV license plate No. P. 5997, which expired on 23 rd May, 1994. The new PMV license plate No. is P. 856Q. I must say that I find this document inconclusive because, it does not bear the official stamp or seal of the West New Britain Land Transport Control Board. I will therefore not place any weight on it.
The defendant has placed reliance on Mr Venable’s affidavit and the Third Party Insurance Certificate and has argued that, the plaintiff has failed to prove that the PMV was insured at the time of the accident. As noted earlier in the judgment, Mr Sindiwan told the Court that, he could not produce his registration papers because he left them in Kimbe. I must decide the case on the evidence adduced to the Court, and it is clear from the evidence before the Court that Mr Boas was the person under whose name the PMV was registered and not Mr Sindiwan. This is clearly born out by Mr Vanable’s affidavit and the Third Party Insurance Certificate for the PMV. The Certificate is the official document and record of the defendant Trust relating to the PMV and I accept it as the evidence of the PMV’s registration and insurance.
It is immaterial as to under whose name the PMV was insured. What matters is that the PMV was insured at the time of the accident. This is put beyond doubt by the Certificate for the Third Party Insurance and Mr Venable’s supporting affidavit. As to why there was a different number plate at the time of the accident is a mystery, but, I have no doubt that it is the same PMV which was insured with the defendant Trust because, that was the only PMV Mr Boas was using at the material time. Further more, the old number plate of P. 5997 corresponds with the old number plate of the PMV. In the circumstances, the plaintiff has proved that the PMV was insured at the time of the accident.
But, even if the PMV had not been insured at the material times, the road on which the accident occurred was a public street or road by reason of the fact that, it was being used by the public daily. The defendant would therefore still be liable to the plaintiff’s claims under s. 54 (1) of the Act, which provides:
PART IX – CLAIMS AND ACTIONS FOR DAMAGES
(1) Subject to subsection (2), any claims for damages in respect of the death
of or bodily injury to any person caused by, or arising out of the use of –
(a) a motor vehicle insured under this Act; or
(b) an uninsured motor vehicle in a public street; or
(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established, shall be made against the successor company and not against the owner or driver of the motor vehicle and subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle. (my underlining)
Section 1 of the Act, defines ‘public street’ in this way:
"public street" means a street, road, lane thoroughfare, footpath, bridge or place that is open to the public; or to which the public has or is permitted to have access, whether on payment of a fee or otherwise; (my underlining).
The question of what is meant by the phrase "open to the public" in the definition of "public street" was considered by the New South Wales Supreme Court in Merchantile Mutual Ins. Co. Ltd –v- W. Turner Pty Ltd [1982] 1 NSWLR. 728, which I find helpful. In that case, the court, considered the meaning and application of the phrase "open to or used by the public" in the definition of "public street" provided in s. 2 (1) of the Motor Traffic Act, 1909, and adopted by s. 1 of the New South Wales Motor Vehicles (Third Party Insurance) Act, 1942. Like in the instant case, the definition of "public street", in the Act, was adopted from the Motor Traffic Act, 1950.
The relevant part of the judgment in Merchantile Mutual Ins. Co. Ltd –v- Turner Pty Ltd, appears in Glass JA’s judgment at page 735, where his Honour said:-
"Accordingly I would take from Schubert –v- Lee the proposition that a place is open to the public if it is "open to members of the public as such". I would assume that the class is relevantly defined by the test whether the premises are open indifferently to any member of the public without any discrimination. Moreover, it would not matter according to the definition if entry is made dependent upon payment of money or the compliance with other conditions but that is not material here. Applying that definition to the evidence which establishes that any member of the public during the period in question was free to enter and walk about. I would find as a matter of act that the Sandgate Fruit and Vegetable Market at the relevant time fell within the statutory definition. Certainly, I don not think that it ceased to open to the public as such because, only those citizens minded to buy fruit and vegetables were likely to enter. After all a public baths would not cease to be a place open to the public because only swimmers entered nor would a museum cease to be open to the public merely because it’s exhibits have an appeal to a limited class only. Accordingly, I would be disposed to find that the passageway where the plaintiff suffered injury was a place open to the public as such and accordingly fell within the definition of the public street".
In this case, there cannot be any doubt about the right of the members of the public to use the road upon with the accident occurred. It was a public road which was open for members of the public to use and was used daily; it therefore, falls within the statutory definition of ‘public street’. Thus, by virtue of s. 54 (1) (b) of the Act, even if the PMV was uninsured, the defendant would still be liable to the plaintiff’s claims.
DAMAGES
(a) Pain and suffering and loss of amenities.
There is no dispute that the plaintiff sustained injuries in the accident on 6th May, 1994 and as the consequence, she suffered pain. The amount which I award must cover the pain suffered now and in the future, see Jackson –v- Jackson [1970] 2 NSWR. 454. To do that, I must turn to the various medical reports on the plaintiff’s injuries. As noted, there are five medical reports and I will discuss them separately in order to properly determine the quantum of damages under this head: -
1. Medical report by Dr Kaptigau dated 10th May, 1994.
This doctor was the Medical Superintendent of the Kimbe General Hospital, at the time the report was prepared. It can be seen from the report that, it was prepared four days after the accident and was for the plaintiff’s former employer. The report merely says that the plaintiff sustained multiple soft tissue injuries to her left leg, thigh and abdomen. It says the plaintiff needed ten days to recuperate as well as for the injures to heal. The report is very brief. It is only in three sentences and does not indicate the types of treatment the plaintiff received.
It appears that this report was prepared for the plaintiff to take time off from work because of the injuries.
2. Medical report by Dr Pumpara dated 1st June, 1995.
This doctor was the Director of Medical Services at the Kimbe General Hospital at the time of the report. The report says, the initial examinations revealed that the plaintiff suffered superficial lacerations on the left leg, which were bleeding and tender over right thigh. It says the initial treatments the plaintiff received included injections and two codeine compound tablets every six hours. The plaintiff was discharged the next day but continued to take codeine compound tablets every six hours for one week.
3. Medical report by Dr Blaise Tonar, dated 19th August, 1996.
This is a doctor from the West New Britain Clinic. It can be seen from the report that, it is based on the doctor’s own examination of the plaintiff’s injures. The report says the plaintiff suffered soft tissue injuries to the abdomen, thighs and the left leg, the plaintiff also suffered severe contusion to the right and left knees. The report says by 19th August, 1996, the plaintiff had recovered from the thigh and abdominal injuries but the right and left knee injuries were still troubling her, which it says would increase in severity as the plaintiff grew older. The plaintiff lost 35 % of the use of her right knee and 40 % of the use of the left knee. The plaintiff also had an ugly scar below her left knee which covered about 5% of her skin.
This doctor was the Head of Division of Surgery at the Port Moresby General Hospital. This report is also based on the personally examination of the plaintiff by the doctor, and was prepared for the defendant and its lawyers. The report says that, although the plaintiff began complaining about the pains in the knees in 1995, there were no signs of swelling and dislocation. The plaintiff had full range of movement in the knees and the hip. The movements were pain free. The knees were x-rayed and were found to be normal and had no osteoarthritis. The report went further to say that even if there were osteoarthritis, they would not be related to the accident. The report concluded that the plaintiff did not suffer from any accident related pains.
The report ended with this opinion: -
"Opinion: Any pains this lady is suffering are not related to the motor vehicle accident. I suggest you award 2.5 % for scars which are visible on her leg but are not so disfiguring to warrant further surgery. These scars are near normal skin colour and 1 – 3 cm in length are not major problems for her appearance. I do not believe her weight gain, stopping work or pains in the knees are related to her accident. The only investigation which could be arranged in addition would be an arthroscopy. I would only recommend this if she contests and then I would suggest you refer her to Mr I. Kevau, orthopaedic surgeon, who performs arthroscopies privately in Port Moresby General Hospital. Arthroscopy has a small risk of infection and should not be undertaken lightly. I would have expected her knee pains persist from the time of the injury and not commence 6 – 7 months later if her pains were due to the accident".
This is a specialist surgeon. The report was prepared for the plaintiff and her lawyers. The report is based on the doctor’s own examination of the plaintiff. It says that on examination, it was found that there were obvious signs of swelling with excess fluid in the joint in the left knee but not tender. The flexibility was restricted to 80 degrees from neutral position. The ligaments in the left knee were intact but there was plenty of crepitus in the patella foemoral joint. The left quadriceps muscles have wasted as compared to the right quadriceps which give rise to weak extension of the left knee. There was no swelling in the right knee and had no restricted movements of the joint, but there was already established osteoarthritis. The scars and lacerations to the thighs, abdomen and the left leg have healed well but the scar below the left knee is disfiguring. And the x-ray
taken on 7th march, 2000, confirmed that, there were osteoarthritis established in both knee joints, more so with the left knee. The report says, these injuries wee consistent with direct blows to the front of both knee joints. The report goes on to say that the conditions in both knees will continue to get worse with time. She will continue to suffer from them for the rest of her life and will inevitably end up with stiff joints which may require surgery either to one or both knees. The disability for a stiff knee was expressed as 55 % permanent loss of the efficient use of the lower extremity. The report gives 5 % disfigurement for the permanent scars.
Apart from the reports by the two Kimbe General Hospital doctors namely Dr Kaptigau and Dr Pumpara, the reports, by Dr Tonar and Dr Popei confirmed that the plaintiff now suffers from severe pains and swellings on both knees resulting from the accident and she will suffer from them for the rest of her life. She has already developed osteoathritis in both knees and the condition on the knees will deteriorate with age. Dr Watter has disagreed with all these in his report except the lacerations which he says have healed. He could not detect anything wrong with plaintiff’s knees including osteoathritis. But, he says, if there were osteoarthritis in the knees then they could not be associated with the accident. Dr Watters also says that the scar is not disfiguring. This is seriously disputed by Dr Tonar and Dr Popei who both describe the scar as ugly and disfiguring.
The medical reports must be viewed against the overall evidence in respect of the injuries suffered by the plaintiff, especially the evidence by the plaintiff herself. The reports are evidence by expert witnesses, therefore, the Court has a wide discretion in deciding whether to accept or reject them.
The evidence by the plaintiff as to the circumstances in which she sustained the injuries have been fully discussed earlier in the judgment. I therefore do not propose to repeat them here, however, the crucial aspects of her evidence, which are relevant to pain and suffering need to be highlighted, vis., the PMV was speeding prior to the accident and as the result, the driver did not see the rear of the tray of the hino truck in time and ran into it. There was no reduce in the speed by the PMV driver before the impact. In those circumstances, it is fair to say that the force of the collision would be great. The plaintiff said, the tray of the hino truck crushed onto her. She said, she was ‘squeezed’ in and she blacked out. She said, it was like having an electric shock or being struck by a lightening. She remained pinned in the seat for half an hour, and the door of the PMV next to her could not be opened so, it had to be broken to free her. She said her legs were numb and she could not walk. These parts of her evidence have not been challenged by the defendant. I will therefore accept them fully. The plaintiff’s evidence as to the positions of the two vehicles prior to and at the time of impact are corroborated by the police accident report and the affidavit of constable Darryle Daugi. Again, these are not challenged by the defendant, I therefore accept them fully as well.
There are other crucial aspects or parts of evidence from which reasonable inferences can be drawn for the plaintiff, for instances, she had a nasty cut just below the left knee. That has healed, but it has been descried by Dr Tonar and Dr Popei as disfiguring. There is evidence that, that was bleeding heavily after the accident. The fact that the plaintiff was forced to resign from her job six months after the accident due to the pains and swellings she was continuing to experience in both knees are relevant considerations for this head of claim. She told the Court that she had intended to make her career with Westpac bank but she had to resign because of the injuries. These are also relevant to her claims of pain and swelling in both knees as they stand to compliment the findings by Dr Tonar and Dr Popei. The evidence by these two doctors is that the left knee is the most affected. That again is consistent with the evidence that, she sustained a bad cut just below her left knee. Dr Tonar examined the plaintiff in about August, 1996, that was about two years after the accident. After describing the ‘severe contusion’ sustained by the plaintiff in both knees in the accident, Dr Tonar in the report says:
"I can confidently say that this will increase in severity as she gets older"
Dr Popei examined the plaintiff on 7th March, 2000, that was almost six years after the accident and about three years six months after Dr Tonar examined the plaintiff in August, 1996. In Dr Popei’s report, he says inter alia, that the left knee was worse off than the right knee. He said, by the time he examined the plaintiff; osteoarthritis had already settled in, in both knee joints. The report further says that the conditions in two knees will undoubtedly worsen with time. The report says, the injuries to both knees were consistent with injuries being suffered as the result of direct blows to both knees. This finding makes sense because the plaintiff’s evidence is that she was in the front seat near the driver, and it is consistent with the dash board crashing onto the knees with the force of the impact. This inference is reasonable because, the plaintiff said, she was ‘squeezed in’ when the accident happened and the door next to her had to be broken open to free her. There is evidence that the plaintiff’s legs were temporarily paralysed following the accident. All these lend strong support to the plaintiff’s evidence.
As I said, Dr Watter’s report says the plaintiff did not suffer these injuries. The plaintiff herself told the Court that, when Dr Watters told her of his findings at the time of examination, she strongly disagreed with him. She also said that Dr Watters told her to have an x-ray which she did, but it was never given to her. She strongly disagreed with Dr Watters’ report and said that the report was prepared sometime after her examination and she received it through her lawyers. She said Dr Watters did not check her thoroughly.
I must say that I find Dr Watters’ medical report quite inconclusive, in that, in the report, Dr Watters suggested that the plaintiff be referred to the orthopaedic surgeon for further examination of the knees.. This to my mind means that, Dr Watters’ findings were subject to verifications. For instance, the report also says that there was no evidence of osteoarthritis in the plaintiff’s knees. But goes on to say ".....Even if she did because the pains developed 6 – 7 months after the accident, I do not think they are related to the accident". He leaves his findings subject to further verification. Dr Watters’ findings directly contradict the findings by Dr Popei. May be the explanation for this lies in the fact that Dr Watters’ examination of the plaintiff’s knees took place before the examination done by Dr Popei.
There are therefore these two conflicting medical findings or opinions on the plaintiff’s injuries one by Dr Watters and the other by Dr Tonar and Dr Popei.
I am of the opinion that given the circumstances in which the injures were sustained and for the reasons given, the findings by Dr Popei and Dr Tonar give the true account of the conditions in the plaintiff’s knees. Their findings are corroborated in all material parts and they make sense and are logical. I cannot say the same of Dr Watters’ findings. One area of serious disagreement between Dr Waters and Dr Popei is the pain and swelling experienced by the plaintiff in both knees. Dr Watters’ report says, the plaintiff should have experienced them from the time of the accident but did not, so, they could not be associated with the accident. Dr Popei’s report on the other hand says, the initial signs in both keens after the accident were only abrasions and bruising with pain but no swelling. The pains only got worse soon after the accident when the plaintiff started walking or standing for long periods followed by swellings of both knee joints, especially the left knee joint. As I said, I find Dr Tonar’s and Dr Popei’s findings logical. They make sense. Dr Popei’s findings of pain and swelling in the plaintiff’s knees developing some time after the accident and following long walks or standing are not uncommon and there are decided cases where victims suffering similar injuries have developed similar complications, for instance see, Jones –v- MVIT [1988-89] PNGLR 611 at page 614, and Walter Roth –v- Ok Ted Mining Limited – N1788. For all these reasons, I accept the reports by Dr Popei and Dr Tonar and reject the report by Dr Watters.
As to the quantum of damages for the plaintiff under this head, Ms Naipet has referred me to a number of cases which I find helpful, I will therefore use them as guide to determine the quantum. First is, Tambi -v- The State [1988-89] PNGLR 648, there the plaintiff who was a driver suffered a fractured femur which required pining. The plaintiff lost 35 % of the use of his left leg, and the injury was slow to heal, he was awarded K 15,000.00 in general damages. Second is Kuli –v- The State [1990] N. 826, the plaintiff in that case suffered damage to the ligament in the left knee which developed into post traumatic arthritis. The plaintiff lost 35 % of the use of the left leg. The plaintiff was awarded K16,000.00, in general damages. Third is, Walter Roth –v- Ok Tedi Mining Ltd (supra), the plaintiff who in that case was a male electrician aged 47, suffered knee injury which affected his ability to squat, walk long distances and play sports. The plaintiff experienced pain and swellings in the knee when he stood for long periods. The plaintiff’s permanent disability was calculated at 20 – 30 %. The injury was sustained on 24th January, 1989. And an x-ray taken on 24th January, 1996, showed early signs of osteoarthritis in the knee. It was however found that despite those disabilities, the plaintiff could be able to return to his work. The plaintiff was awarded K 25,000.00 in general damages.
There are couple of other cases, which I also find helpful, first is Jones –v- MVIT (supra). In that case, the plaintiff suffered severe shock with peripheral pulses palpable, lost considerable blood from multiple facial lacerations, lacerations to the tongue, he had posterior dislocation of the left hip, a compound comminuted fracture of left patella and penetrating injury to the left eye. The medical report based on the examination of the plaintiff’s injuries which was done after one year from the accident said that the plaintiff’s knee had become completely stiff. There was considerable wasting of all the thigh muscles on the left. The plaintiff’s injuries especially on the knee and the hip were permanent and would suffer life long pain. The loss of the function of the lower left limb was put at 80 %. The plaintiff was 45 years old at the time of the accident, and was 56 years old at the time of the judgment in 1998. The plaintiff was awarded K 33,000.00, in general damages for pain and suffering.
In the other case of Kiak –v- Tora Enterpries Pty Ltd and MVIT [1986] PNGLR 265, the plaintiff suffered a severe compound fracture to the lower third of the left fibular and tibia involving substantial skin loss with damage to the muscles, arteries and veins. He underwent eight operations but suffered a permanent disability of about 50 % in relation to the left leg with severe scarring and a prognosis for arthritis and arthrodesis of the ankle joint; he was required to wear a built – up shoe and caliper and walk with a stick and limp. The plaintiff was awarded K 29,000.00 in general damages.
The plaintiff in this case has suggested K 35,000.00 as the fair figure for pain, suffering and loss of amenities. This figure is base on the following: -
As I said, this award must cover the plaintiff’s pain and suffering now and in the future, see Jackson –v- Jackson (supra).
Apart from the above factors, the plaintiff is likely to have surgery in at least the left knee, if not in both knees later in life. The plaintiff will require medication for the rest of her life. There is no doubt that the plaintiff will not do the physical, or manual work she used to do before.
The case of Jones –v- MVIT and Kiak –v- Tora Enterprises Pty Ltd and MVIT, were decided in the mid and late 80s, when the value of kina was very strong. In Walter Roth –v- Ok Tedi Mining Ltd, which was decided more recently in 1998, the injuries were not as extensive and debilitating as those in Jones –v- MVIT and Kiak –v- Tora Enterprises Pty Ltd and MVIT, the amount awarded in general damages in these cases were K 25,000.00 and K 29,000.00 respectively. It is significant to note that the Court said the plaintiff in Walter Roth –v- Ok Tedi Mining Ltd could go back to his former employment.
In this case, the medical reports which I have accepted confirm that the plaintiff has suffered serious and life long injuries. The amount I award must also reflect the current low value of the kina against the costs of basic goods and services. This is important because the plaintiff will need to buy medicine throughout her entire life in order to manage her pains and suffering. In those circumstances, I consider the amount of K 35,000.00 to be a fair amount.
I therefore award K 35,000.00, in general damages for pain and suffering.
(b) Past Economic Loss
Loss of earnings
The plaintiff was earning K 135.70 net, at the time of the accident. She resigned from her employment on 28th February, 1995. In April, 1996, she was employed by the Musa Local Level Government on K 120.00 per fortnight. The plaintiff was employed there for nine months, i.e. up to 31st December, 1996.
The plaintiff later worked for the West New Britain Council of Women on informal basis to assist with community services related work. She was paid K 20.00 per sitting. In a year, there were eight sittings, so she was paid K 160.00 in a year. She was also paid K 400.00 per quarter, so, in a year, she was paid K 1,600.00. The total amount she was paid in one year was therefore K 1,760.00.
The plaintiff said, she was employed in that capacity up to the time of the trial. I am satisfied that the plaintiff has sufficiently pleaded these in paragraph 10 (j) of her Statement of Claim, and the evidence regarding these have not been challenged by the defendant. I will therefore accept them as the basis of determining the past economic loss.
Plaintiff’s past economic loss is as follows: -
(i) From 29th February, 1995 to 31st March, 1996 there were 28 fortnights. Hence, 28 fortnights x K 135.70 = K 3,799.0
(ii) From 1st April, 1996 to 14th March, 2002, there were 20 fortnights.
Hence, 20 fortnights x K 15.70 (K 135.70 – K 120.00) = K 314.00
(iii) From 1st January, 1997, to 14th March, 2002, is a period of 5 years, 2 months and 2 weeks. The loss of wages for this period would be the amount she would have earned with the Westpac Bank less the amount she actually earned, hence: -
(a) To determine the amount the plaintiff would have earned with Westpac in the period of 5 years, 2 months and 2 weeks, the plaintiff’s counsel suggested the formulae of 5.24 years multiplied by the net yearly income of K 3,528.20. But, I will use 5.21 years because that is more comparable to the period. So the amount the plaintiff would have earned is: - 5.21 years x K 3,528.20 =
K 18,381.92
(b) The amount the plaintiff actually earned with the West New Britain Council of Women in 5 years, 2 months, and 2 weeks or 5.21 years from K 1,760.00 is - 5.21 years x K 1,760.00 = K 9,169.60.
So the amount lost in salary in 5 years, 2 months and 2 weeks is K 18,381.92 less K 9,169.60 which is K 9,212.32.
Therefore the total past economic loss is K 3,799.60 + K 314.00 + K 9,212.32, which is K 13,325.92.
I therefore award K 13,325.92 for past economic loss.
(c) Future Economic Loss
The possibility of the plaintiff gaining useful employment again is virtually nil. She certainly cannot go back to her former employment because of her disabilities a well as her age. She was about 32 years old when she sustained the injuries. As at the date of this judgment, she would be almost 40 years old. She therefore has about another 15 years of working life. The counsel for the plaintiff has suggested the formulae of K 33.08 weekly earnings multiplied by 3 % table (which equals 480). Hence, K 33.08 x 480 which equals K 15,878.40, as the plaintiff’s loss in salary over 15 years, then allowing for contingencies at 5 % the amount submitted for this head of claim is K 15,084.48.
In submitting for an award for the full working life, under this head, the plaintiff referred to Jones –v- MVIT (supra) and Collin –v- MVIT [1990] PNGLR 580.
I find these two cases distinguishable from this case because, in Jones –v- MVIT, the plaintiff was 45 years old when he was injured in the accident. He was already 55 at the time of the trial, thus he was already beyond the retiring age, for that reason, the Court held that future loss was irrelevant and did not consider it. In Collins –v- MVIT, the deceased who died in a motor vehicle accident which formed the basis of the action by his wife and the children was already 53 years old when he was killed. That was two years before the retiring age of 55. The Court held there that the deceased was fit, healthy and resourceful person, thus the retiring age was determined at 65.
On the facts of this case, I do not think it would be realistic to say that the plaintiff would have worked till 55 years of age. Apart from allowing for possible early death, there is no evidence of her educational qualifications which would assist me to determine as to whether she can get other paid employments up to 55 years. In the circumstances, I am of the view that the plaintiff should be allowed another 8 years of working, for which I assess the future economic loss at K 8,000.00.
I therefore award K 8,000.00 for future economic loss.
(d) Out of Pocket Expenses
These are special damages which must be specifically claimed and proved strictly. This principle was stated by Lord Macnaugton in Stroms Bruks Aktie Bolag –v- John and Peter Hutchinson [1905] UKLawRpAC 52; [1905] A.C 515 at page 525.
"Special damages ..... are such that as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character, and therefore, they must be claimed specifically and proved strictly ...." (my underlining).
This principle was stated broadly by Lord Goddard in, British Transport Commission –v- Gourley [1955] UKHL 4; [1956] A.C 185 at page 206:
"In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out – of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future" (my underlining).
The plaintiff has claimed such costs as hospital fees, transportation, police accident report, accommodation, airfares for this and the aborted trial in July, 2000, and miscellaneous. The plaintiff claimed these in the Statement of Claim, but only called evidence in support of a number of them. The claims which have been proved are: -
1. Consultation and Medication - K 88.00
2. Medical Report - K 8.00
3. X-ray - K 20.00
4. Plaintiff’s airfares for the trial in March, 2002 - K 739.00
5. Mr Moses Sindiwan’s airfares for the trial in March, 2002 – K 594.00
- K 744.70
---------------
Total K 1,599.90
---------------
These claims have been proved with receipts and copies of the airline tickets, I therefore allow them. But, I have disallowed the following claims: -
1. Medical Report - K 30.00
2. Hospital Fees - K 50.00
3. Transportation - K 100.00
4. Police Accident Report - K 25.00
5. Plaintiff’s airfares for the aborted trial in July 2000 – K 594.00
6. Accommodation - K 300.00
7. Miscellaneous - K 100.00
I disallowed these claims because, no evidence was called to prove them, nor were they raised by the plaintiff at the trial. As to the claim for the cost of the plaintiff’s airfares for the aborted trial in July, 2000, the matter was raised and argued at the trial, but I have disallowed it, because the only supporting evidence for the claim is the copy of the professional bill of costs by the plaintiff’s lawyers to the insurer of the Westpac bank, in which the lawyers claimed K 594.00 for the plaintiff’s airfares. The bill was raised on or about 3rd July, 2000. During the hearing, I allowed the bill to be tendered in evidence, but, in the final determination of the matter, I have decided that the plaintiff has not strictly proved the claim. I cannot simply infer from the plaintiff’s bill of costs that the ticket was indeed purchased. The plaintiff should have produced the ticket or the copy of the ticket and should have given the details of her travel on that ticket, further more, there is no evidence that a trial was aborted in July, 2000, and if the trial was aborted, no reasons were advanced by the plaintiff for such abortion. The trial could have been aborted, through no fault of the defendant, in which case, the defendant should not pay for the ticket. I cannot speculate.
In these circumstances, I have a very wide discretionary power under s. 154 (4) of the Constitution to reject the claim. Therefore in the exercise of that power, and in the interest of justice, I will disallow the claim.
I have allowed the other tickets for the plaintiff and Mr Sindiwan in the amounts for which they were purchased, as shown in the tickets.
I therefore award K 1,599.90 for out of pocket expenses.
The plaintiff claims K 25,000.00 for costs. I will disallow this because the costs should be taxed, if not agreed by the parties.
I will award interest at 8 % from the date of the writ, which is 17th December, 1996, to the date of the judgment, which is 24th January, 2003. That is a period of 6 years, 1 month and 1 week or 6.1 years. The amounts awarded for interest under each head of claim are shown in the summary of damages and interest below.
Summary of damages and interests awarded are as follows: -
1. Pain and suffering and loss of amenities - K 35,000.00
Interest for this amount for 6.1 years is - K 17,080.00
2. Past Economic Loss - K 13,325.00
Interest for this amount for 6.1 years is - K 6,503.09
3. Out of pocket expenses - K 1,599.90
Interest for this amount for 6.1 years is - K 780.80
4. Future Economic Loss - K 8,000.00
---------------
Total K 82,288.79
----------------
The defendant will therefore pay K 82,288.79 in damages and interests to the plaintiff.
The defendant will pay the plaintiff’s costs, which are to be taxed, if not agreed.
Judgment accordingly.
____________________________________________________________________________
Lawyers for the plaintiff - Posman Kua Aisi Lawyers
Lawyers for the defendant - White Young & Williams Lawyers
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