Motor Vehicles Insurance Ltd v Kiangua [2015] PGSC 70; SC1476 (17 December 2015)

SC1476

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA NO. 92 OF 2012

BETWEEN:

MOTOR VEHICLES INSURANCE LIMITED
Appellant

AND:

KAUNA KIANGUA
Respondent

Waigani: Davani J, Kassman J, Logan J
2013: 16th December
2015: ---17th December

DAMAGES – claim by appellant for damages in respect of husband’s death in motor vehicle accident – default judgment entered in respect of liability with damages to be assessed – no appeal against default judgment – later trial on assessment of damages – whether primary judge should have revisited default judgment before assessing damages – whether default judgment proceedings were statute barred under s 31 of the Wrongs (Miscellaneous Provisions) Act (Wrongs Act) – estoppel based on default judgment — per rem judicatum – whether damages correctly assessed −limitation of action legislation does not bar the right to a cause of action unless pleaded.

Held

(Davani J dissenting, except as to funeral expenses) not competent for appellant to raise issue concerning s 31 of the Wrongs Act – inconsistent with default judgment on liability – in any event s 31 no bar to the proceeding as no defence filed – statement of claim serves as proxy for default judgment in assessing damages – funeral expenses not pleaded in statement of claim – judgment below wrong in law to the limited extent it allowed for funeral expenses in assessment of damages - appeal otherwise dismissed with costs

Cases cited:

Papua New Guinea

Andale More v Henry Tokam (1977) N1645
Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853
Coecon Ltd (Receiver/Manager appointed) v National Fisheries Authority (2002) N2132
Cosmos Kutau Kitawal & Christopher Kutau v The State (2007) SC927
Curtain Brothers (PNG) Limited & Curtain Brothers (Qld) Pty Limited v
University of Papua New Guinea (2005) SC788
Dempsey v Project Pacific Ltd [1985] PNGLR 93
Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705
Government of Papua New Guinea and Davis v Barker [1997] PNGLR 386
Gregory Tavatune v Dr. Novette, Christopher Pasmat, Danny Gre and Elias
John Warivama v Henry Nagt Sapau (2013) N5319
Kapaware of Vanimo General Hospital (2012) N4611
Kapaware of Ivan Saun v Chief Inspector Hodges Ette (2005) N3031
Michael Pundari v Niolam Security (2011) SC1123
Motor Vehicles Insurance (PNG) Trust v John Etape [1994] PNGLR 596
MVIT v. James Pupune [1993] PNGLR 370
Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Sakaire Ambo v Motor Vehicles Insurance (PNG) Trust (2002) SC681
Sangasib v MVIT [1991] PNGLR 449
Tony David Raim v Simon Korua (2010) SC1062
Uma More v University of Papua New Guinea [1985] PNGLR 401
Van Der Kreek v Van Der Kreek [1979] PNGLR 185
Vanimo General Hospital (2012) N4611
William Mel v Colman Pakalia and others (2005) SC 790

Overseas case cited

Dianne McGrath Fingleton v The Queen [2005] HCA 34
House v the Queen (1936) 55 CLR 499
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] A.C. 993
Lunun v Singh (Hajar), The Times, July 1999, [1999] CPLR 587
New Brunswick Railway Co v British & French Trust Corp Ltd [1939] AC 1
Ronex Properties Ltd v John Laing Construction Ltd and others [1983] QB 398
Symes v St Georges NHS Trust [2014] EWHC 2505 (QB); [2014] Med. L.R. 449 (QBD); (2014) 140 B.M.L.R. 171

Legislation cited:

Motor Vehicles (Third Party Insurance) Act c.295 Sections 54
Wrongs (Miscellaneous Provisions) Act c. 297 Sections 25, 26, 31 and 37(6)

Counsel:

K Peri, for the Appellant
L Mamu and B Geita, for the Respondent

DECISION
17 December, 2015

1. DAVANI J: The appellant appeals against the National Court’s decision of 10th July 2012, where, in a hearing on assessment of damages, the appellant was ordered to pay the sum of K92, 180.13 in damages, to the respondent.

Background

2. The respondent was the plaintiff in National Court proceedings WS 597 of 2003 (H) filed in the National Court in Goroka on 12th May, 2003.
   
   1. According to the Writ of Summons and Statement of Claim, (the ‘Writ’), copy of which is contained in the Appeal Book at pages 8 to 15, the respondent sought damages for the death of her husband who was allegedly killed in a motor vehicle accident on 10th March, 1997, which accident occurred on the Kerowagi to Kundiawa Road when one Bill Angua Waine, who was driving a Mitsuibishi Canter, registration No. 1AA 019 drove off the road and struck a pedestrian, Kiangua Poka (the ‘deceased’), who died instantly.
      
   2. The Writ was filed on 12th May, 2003. On 22nd September, 2006, the National Court Goroka entered default judgment in the respondents favour and for damages to be assessed.
   3. The hearing on assessment of damages was conducted on 23rd March, 2011 and a decision delivered on 10th July, 2012.
      
   4. Damages were assessed and awards made as follows;
      

respondent - K21, 273.18

Jack (son) - K5,278.74

Emos Kiangua - K6,245.48

Tori Kiangua -` K6,865.84

Nuglai Kiangua - K6,664.11

Margaret Kiangua - K6,865.84

5. Funeral expenses were assessed at K1, 500.00.
   
6. Interest was assessed over a period of 3,344 days (12.05.03 to 10.7.12) at 8% upon the awards for each claimant, assessed at;
   

- respondent - K15, 591.78

- Jack Kiangua - K3, 868.95

- Emos Kiangua - K4, 577.50

- Tori Kiangua - K5, 032.19

- Nuglai Kiangua - K4,884.33

- Margaret Kiangua - K5,032.19

Default Judgment

7. Default Judgment was ordered on 22nd September, 2006 and entered on 28th September, 2006. The appeal depositions only contain the sealed orders for default judgment. It does not contain the depositions of the appearances before the Judge who granted the default judgment nor does it contain the transcripts of that hearing.
   
8. The relevance of those depositions and transcripts is discussed later below.
   

Grounds of Appeal

3. The Notice of Appeal filed by Warner Shand Lawyers on 9th August, 2012 pleads 8 grounds of appeal. Ground 3(a) is the only ground that is different in content to grounds 3(a) to (h), the final ground of appeal, but otherwise, all the grounds are basically in relation to the manner in which the trial Judge exercised his discretion. I summarise these grounds as follows:
   

1. That the trial Judge erred when he did not properly exercise his discretion by revisiting the entry of default judgment, particularly, when, upon a cursory glance, it is obvious that the matter is statute-barred pursuant to s. 31 of the Wrongs (Miscellaneous Provisions) Act Chapter 297 (the ‘Wrongs Act’).

2. That the trial Judge erred when he made findings on heads of damages not properly particularized and which are listed hereunder;

2.1 That the deceased was employed prior to his death and which aspect was not pleaded;

2.2 That it was not pleaded that the deceased was earning an income and that the actual weekly loss suffered by the respondent and the children was K135.00;

2.3 That the weekly loss purportedly suffered of K135.00 was excessive considering the deceased and the respondent are villagers, subsistence farmers and were not in formal employment.

2.4 That the period of dependency was not pleaded in the statement of claim;

2.5 Monies spent on funeral expenses was not pleaded and therefore, the award of K1, 500.00 was excessive and an error by the trial Judge.

4. The appellant asks that if the Court does find in its favour, that the following orders must be made by this court:
   

1. The appeal must be upheld;

2. The National Court’s decision of 10th July, 2012 in WS 599 of 2003 (H), be quashed;

3. That the National Court proceedings WS 597 of 2003 (H) be dismissed;

4. That the respondent pays the costs of this appeal and the National Court proceedings.

Analysis of the grounds of appeal

5. The respondent’s lawyer opposes the appeal and submits amongst others, that the appellant should not be pursuing this appeal because it did not show any interest in defending the proceedings in the National Court.
   
6. In response to this, the appellant submits that it was not aware the respondent was proceeding to default judgment and to the hearing on assessment of damages because it was not aware the respondent had filed court proceedings and further, that it had not received any court documentation from the respondent and had not received any notification of the court proceedings filed against it, from the respondent and her lawyers.
   
7. Based on the submissions by both lawyers, I note that the appeal before us raises serious issues in relation to the propriety of the pleadings in the National Court; the manner in which default judgement was entered and generally, the manner in which the trial Judge dealt with the matter. I summarise all the grounds of appeal under the two parts which are The Entry of Default Judgement (and s.31 of the Wrongs Act) and Lack of pre trialing and lack of pleadings and particulars. I also make separate findings in relation to Grounds 3(b) (c) (d) (f) (g) and (h) of the Notice of appeal.
   
8. I also remind myself that the appellant’s lawyer in this appeal is Mr Mamu of the Office of the Public Solicitor, based in Port Moresby. Her lawyer in the National Court was Mr Dennis Umba of Umba Lawyers. Indeed, Mr Mamu agrees that he only inherited the court depositions when the Public Solicitors Office, Boroko, was briefed on the appeal and does not know the background of this matter.
   

The entry of default judgement (and s.31 of the Wrongs Act)

9. The first leg of the appellant’s submissions basically are that the proceedings filed by the respondent in the National Court are statute barred in that the proceedings were filed well after the 3 year time limitation period provided in s 31 of the Wrongs Act. And because the proceedings were filed after the 3 year time limitation period, that the proceedings are statute barred and that the trial Judge should have dismissed the proceedings and not proceeded to assess damages.
   
10. In response to that, the respondent submits that because s 31 of the Wrongs Act was not specifically pleaded in a Defence, that the appellant cannot now raise this Defence so late in time.
    
11. Section 31 of the Wrongs Act reads:
    

“31. Limitation of actions under the Part IV

Only one action under this part lies for and in respect of the subject matter of complaint and every such matter must be commenced within three years after the death of the deceased person.”

12. The appellant submits that the respondent should have commenced proceedings on or before 10th March, 2000, because the deceased died on 10th March, 1997. The National Court proceedings were filed on 12th March, 2003, about 2 years after 10th March, 2000.
    
13. The appellant submits that the Supreme Court must, in view of the obvious legal procedural flaw, decide whether the trial Judge should have proceeded to assess damages or whether he should have revisited the aspect of default judgment, considering on the face of it, when the matter went before the trial Judge, that it was clearly statute-barred.
    
14. The respondent submits that this is a submission that should have been made at the assessment of damages stage. The respondent emphasizes the point that the appellant has sat on its laurels and is belatedly raising this issue, now at the highest court.
    
15. The respondent submits further, in demonstrating the appellant’s lack of interest in the matter, that at no time, whilst the matter was before the National Court, did the appellant apply to set aside the default judgement; seek leave to file its Defence out of time or even appear at the hearing of assessment of damages.
    
16. The respondent submits that before it can be heard in this appeal, that the appellant provide a good explanation as to why it failed to appear and make applications of the sort referred to above, and to also appear at the hearing on the assessment of damages. The respondent submits further that perusal of the transcript of the trial judge’s decision suggests that the trial Judge was indeed satisfied with the cause of action and the facts that were pleaded and before him. The appellant referred to the following passages in the trial Judge’s decision to reinforce those submissions, which I set out below.
    
17. At pg 1 of his published reasons, (pg. 57 of the Appeal Book), the trial Judge said this:
    

“1. ...This is a trial on damages to be assessed. The plaintiff’s claim is for damages for the death of her husband, who was killed in a motor vehicle accident which occurred on or about 10th March, 1997. In the proceedings she claims general damages for loss of dependency, special damages including funeral expenses, estate claim, damages for risk of orphan hood, interests and costs.”

18. At page 2 of his published reasons, (pg.58 of the Appeal Book), the trial Judge said this:
    

“4. The action is brought pursuant to the provisions of the Wrongs...Act... and Motor Vehicles ...Act...

5. The plaintiff brings the claim against the defendant for herself and the dependent children of her deceased husband.”

19. In response to this, the appellant submits that it was not aware that the respondent had filed court proceedings and was pursuing the matter in court. That the only time the appellant became aware of the respondents claim against it and the court proceedings in the National Court, was when it was served with the Court Order of 10th July, 2012, ordering it to pay K92,180.13 in damages. The appellant further submits that if the Supreme Court dismisses this appeal, that the respondent will be allowed to profit on a matter already extinguished by law and will set a bad precedent for the future. That effectively, the Supreme Court may be sanctioning a bogus claim.
    
20. The only time the Supreme Court will disturb the findings of the trial Court is if the trial Judge erred in the exercise of his discretion. In the Government of Papua New Guinea and Davis v. Barker [1997] PNGLR 386, Prentice DCJ adopted a passage from House v. the Queen (1936) 55 CLR 499, when he said at pg 396 and 397:
    

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellant court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

(my emphasis)

21. Did the trial Judge err in the exercise of his discretion when he proceeded to assess damages without firstly revisiting the aspect of default judgment?
    
22. The trial judges role when hearing a claim for assessment of damages after entry of default judgment was addressed by the Supreme Court in William Mel v. Colman Pakalia and others (2005) SC 790 where Los. J, Jalina .J and Cannings .J endorsed the principles set by Kandakasi .J in Coecon Ltd (Receiver/Manager appointed) v. National Fisheries Authority (2002) N2132 and by the Supreme Court in Papua New Guinea Banking Corporation v. Jeff Tole (2002) 694 per Amet CJ, Sheehan J and Kandakasi J. They held that the trial judge’s role is:
    

i. to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

ii. if the facts and the cause of action are reasonably clear, liability should be regarded as proven i.e default judgment resolves all questions of liability in respect of the matters pleaded in the Statement of Claim;

iii. Only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise, should the Judge inquire further and revisit the issue of liability;

iv. The plaintiff has the burden of producing admissible and credible evidence of the alleged damages;

v. Any matters that has not been pleaded but is introduced at the trial is a matter on which the defendant can take issue on liability.

23. I do not know if the Judge who entered default judgment made the necessary enquiries to be satisfied that the matter was indeed “ripe” for default judgment because those depositions are not before us. Although this appeal is not against the manner in which default judgement was entered, in my view, it is so important for a trial Judge, that before proceeding to a hearing on assessment of damages (after entry of default Judgement), that he must review the manner in which default judgement was entered. In this jurisdiction, Papua New Guinea, there have been many instances where default judgement was entered under highly irregular circumstances. If the trial Judge notes on the court papers and on exchanges with plaintiff’s counsel, that there was some irregularity in the manner in which default judgement was entered, it is my firm view that it is good practice for a trial Judge to order the following:
    
    • - adjourn the hearing on assessment of damages;
    • - inform the defendant, through the Registrar, to appear and apply to set aside the default judgement. But if the defendant is in court, that he do likewise;
    • - issue a self-executing order, giving a time period within which such an application can be made, including the filing of affidavits by all parties, failing which the hearing on assessment of damages will proceed in the defendant’s absence.
      
24. I discussed and outlined the factors a trial Judge must consider when faced with an application for default judgment in Gregory Tavatune v. Dr. Novette, Christopher Pasmat, Danny Gre and Elias Kapaware of Vanimo General Hospital (2012) N4611. I said that:
    

“the entering of default judgment is not just a matter of placing ticks and crosses in boxes but is one where the Court must ensure that the basic fundamentals or prerequisites to the filing and service of a Writ of Summons and Statement of Claim is fully satisfied, before default judgment is entered. These are:

- Section 5 notice has been properly issued (if the State is a defendant)

- All the parties to the action have been properly named in the writ.

- the action is not statute-barred.

- there is a cause of action on which to enter default judgment

- All the requirement for a default judgment have been met e.g the giving of the notice, recent search of the Court file, proper service of the Writ of Summons and Statement of Claim upon the named defendants, etc.

The court should only enter default judgment after these requirements have been satisfied.”

25. I am of the view, as I have always maintained in matters of this nature, that because the matter proceeded to substantive hearing without the defendants, and because default judgment was entered on proceedings where the defendant purportedly showed little or no interest, it means that the responsibility on the trial judge is more onerous. There is no point in a trial Judge concluding that because the defendant showed no interest in the proceedings, that he can proceed to assessment, regardless. That in my view, respectfully, is a very irresponsible stance to take by a trial Judge.
    
26. The defendant in this case, is a major corporation. The “silence” from the defendant was indeed very deafening. That should have raised alarm bells in the trial Judge’s mind as to why a major and large corporation like the defendant had not filed any court documentation or made any court appearances, even though it had been purportedly served. It means that the trial Judge must investigate this, at the pre trialing stage, by asking the relevant questions. And I say this because of the many fraudulent claims that have come through this court over the years.
    
27. If the trial Judge had revisited the aspect of default judgment, he would have noted that the matter was statute-barred by some 2 years. Which means it would have been futile to proceed to assessment.
    
28. A trial Judge also has the opportunity to identify these legal flaws, loopholes and pleading peculiarities, at the listings stage. Before the matter is set down for substantive hearing, it must be extensively pre – trialed. At the pre-trialing, the trial Judge must ask counsel about the preparedness of the parties; the availability of the parties and finally, the state of the pleadings. This process is available to the parties and the trial Judge in our rules of court, more particularly O.10 R.9A. O.10 R.9A (7), the provision on Mentions. That provision is the perfect guide for counsel and the trial Judge, as to what they should be on the look out for before setting the matter down for trial, or, as in this case, the hearing on assessment of damages. Of course ideally, a Judge sitting in the province may not have a Mention date, however, all matters can be listed on a Listings/pre – trialing list, where the Judge can ask these very relevant questions. And of course, a failure to do so, as in this case, can have very serious consequences. I set out below, some matters the trial Judge must ask of counsel which are provided at O.10 R.7 (4). They are:
    
    • - Sufficiency of pleadings and the need for further pleadings;
    • - Whether any condition precedent to the action or statutory time bar issues arise;
    • - Whether any further interlocutory steps need to be completed before trial;
    • - The date , time and venue for pre-trial conference;
    • - Such other matters as may aid in the prompt disposition of the matter.
      
29. The appeal book does not show that a pre-trial and listings was conducted. In all probability, the non-appearance by the defendant may have never been raised or addressed by the National Court. This is a matter that may have proceeded directly to trial without being properly pre-trialed.
    
30. This was a practice that was very prevalent before the introduction of the new Rules of Court. Trials by ambush then, were very common because either one party was not aware of what was going on because they were never informed or, that one party, the plaintiff particularly, would, as much as possible, keep the defendant, incommunicado.
    

There are of course, other situations where, at the entry of default judgment stage, the trial Judge may have noted that the Statement of Claim was not properly pleaded. The trial Judge can then exercise his discretion in firstly, refusing the application for default judgment and then give leave to the plaintiff to further amend his statement of claim to properly plead it e.g. the lack of particulars. There is no point entering default judgment, on a very scantily pleaded Statement of claim, when, if the matter eventually proceeds to trial, the trial Judge will only dismiss the claim because it has not been properly pleaded and particularised.

31. Because the trial Judge proceeded to assessment, without re-visiting the aspect of default judgment, in my view, he has erred.
    
32. I add further, that it is good and prudent practice for a trial Judge , in a motor vehicle accident claim or an air craft accident claim, at the hearing for assessment of damages, to always ask for the following, to be produced as evidence:
    

1. Police (Accident) Reports;

2. Coroners Report (if any);

3. Medical Reports, including Post Mortem Reports;

4. S 54 (6) MVIL Act notice or s 5 notice under the Claims By and Against the State Act;

5. Check if the Statement of Claim is properly pleaded; whether there is a cause of action; and, whether the matter is statute-barred etc.

33. And if the matter has progressed past the default judgment stage to the assessment stage, that the trial judge must revisit the entry of default judgment to satisfy himself that these mandatory prerequisites have been met or complied with and the matter is or is not statute-barred, amongst others. There is no point in making the finding that the entry of default judgment has resolved all issues in relation to liability when the very pertinent materials/evidence have not been produced, if not at the default judgment stage, then at the substantive hearing on the assessment of damages.
    
34. Obviously, the question one would ask is why a trial Judge would go through all that trouble of pre-trialing matters when he or she ought to just proceed to trial or assessment of damages, because, for one reason, it saves a lot of time. In “developed” jurisdictions, their court rules cater for these scenarios where there is or are further steps or thresholds a plaintiff must “cross” first, after entry of default judgement, before the matter is indeed ready for assessment. I say this referring to the case Lunun v Singh ( Hajar), The Times, July 1999, CPLR 587, referred to and relied on by my brother Logan.J. His Honour has set out in his reasons, paragraphs 57 to 69 of the Deputy High Court Judge’s reasons for decision in that appeal. In that case, the appellant appeals against an order by a Master, who struck out a counter schedule filed and served on the plaintiff by the defendant because it was incompatible with the default judgement obtained by the plaintiff. And that practice is an illustration of what an aggrieved defendant can do after default judgement is obtained against him, a practice or remedy available to a defendant in the United Kingdom, relying on their rules of court contained in The White Book Service 2013, as opposed to a defendant in PNG, who can only apply to set aside, which is the only remedy available to him under PNG’s National Court Rules (‘NCR’).
    
35. A statutory defense must be specifically pleaded before it can be raised as a valid defence. The National Court Rule (NCR) O 8 R 14 provides, amongst others, that any statute of limitation must be specifically pleaded in a defense, which, if not pleaded, will take the opposite party by surprise or raises matters of fact not mentioned in earlier pleadings or that this defense will not be maintainable. The pleading of such defences and the requirement to do so, occurs in a situation where the defendant is represented by a lawyer or where the defendant is able to represent himself and does so. However, in this case, the appellant did not ever appear before a Judge in the court below, for reasons I have already mentioned above. And I must re-emphasise that Mr Peri’s submissions, that his client (the appellant) was never informed of these proceedings, indeed, does hold water. Which then raises the question of why the respondent’s lawyers had never tried to settle this matter by corresponding with the appellant. The appellant is a major corporation, who is inundated with claims of this nature. And of course, it requires that the respondents lawyer must be vigilant in the way he deals with the matter, by ensuring that the matter is with the appellants claims section and is being processed, which would then, in all probability, enable a settlement.
    
36. Mr Mamu for the respondent was of no assistance to this Court, meaning there are many unanswered questions.
    
37. I note on pg. 49 of the appeal book which is the transcript of proceedings before the trial Judge, that to ascertain if the appellant was properly served with the Notice of Hearing, at its correct address for service, the trial Judge asked for the telephone directory, to confirm the appellant’s facsimile number, because the Notice of Hearing was purportedly faxed. With respect, that clearly is a procedural error by the trial Judge because the NCR is very particular about service upon corporations, to be proven by affidavit and to be done in accordance with s431(1)(a)to(f)(2) of the Companies Act. This was not done in this case before the matter proceeded to trial, proof of service being satisfied by reference to the telephone directory.
    
38. In a case such as this, where a major corporation, through its lawyers, had never appeared since the purported service of the writ upon it, should raise very serious doubts and concerns in the mind of the trial Judge, as to whether the respondent’s lawyers had done the right thing, more particularly, comply with the NCR.
    
39. And, with respect, the best time to raise with counsel the courts concerns about a respondents (defendants) lack of interest, is at pre trialing.
    
40. Additionally, apart from the fact that the matter had not been properly pre-trialed, the prevailing facts demonstrate that this case had been in the doldrums for a long time and would have, if I may say, “alarmed” the trial judge, the facts being, this case involved a motor vehicle accident that purportedly occurred in March, 1997; the National Court proceedings were filed in 2003 and default judgement entered 9 years after the accident and 3 years after the court proceedings were filed. It should have also prompted the trial Judge to insist on production of a Police Accident Report; a Doctor’s report or the Post Mortem report and copy of the s 54(6) MVIL Act notice letter. I say this because that is the only way, in my view, that a trial Judge will be or can be satisfied that a death did indeed occur and that the mandatory notice under the MVIL Act was issued? By insisting on production of these reports either at the pre-trialing stage or before commencement of hearing on the assessment of damages or during the assessment hearing.
    
41. It is also not correct for a plaintiff to say that upon entry of default judgement, that this resolves all issues on liability. I say this by reference to other common law cases in “developed’ jurisdictions, where this was never an issue because of the nature of their rules of court, where a defendant has the opportunity to raise legal issues on a hearing on assessment of damages e.g causation. This was held in the High Court case of Timothy Symes v St George Healthcare NHS Trust [2014] EWHC 2505 (QB); [2014]Med.L.R.449 where a Judge of the High Court Simon Picken QC, on 11th July, 2014, held that a defendant could challenge causation where damages had been ordered to be assessed on a default judgement, causation having been set out in a counter schedule filed earlier by the defendant, after entry of default judgement.
    
42. Therefore, in my respectful view, this Court cannot make the finding that the s 31 Wrongs Act Defence must be pleaded first, in this case more particularly, before the appellant can raise it in an appeal. I say this because in Papua New Guinea, there must be a clear distinction drawn between cases where all parties were represented and had ample opportunity to be involved in the drafting of the pleadings, to those cases where a defendant was never, ever involved. This is one such case, where the defendant never made appearance, as we have heard, because it had never been served with correspondence or court proceedings.
    
43. The Supreme Court must not sanction a finding that will only encourage the filing of bogus claims. The Supreme Court must protect the trial courts processes from abuse and must not be seen to be “promoting” baseless claims, relying on legal principles.
    
44. As I said above, a finding by this Court, that the s 31 Wrongs Act Defence must be pleaded first, will hold, if the appellant had the opportunity to plead such. In this case, we have heard that because the appellant had never been served with any of the court documentation filed in the National Court, that the opportunity to file a Defence, never availed itself to it. The appellant should not be penalized for the respondent’s lawyer’s inability to properly conduct their case.
    
45. Which is why this case must be distinguished from Lunun v Singh (supra)? I refer to other common law cases in drawing that distinction. In Timothy Symes v St George Healthcare NHS Trust (supra), lawyers were involved for both parties from the commencement of litigation until finality, including before the entry of default judgement and after. The issue of causation arose before and after the entry of default judgement, which all parties were very much aware of.
    
46. Ronex Properties Ltd v John Laing Construction Ltd and others [1983] QB 398, dated 22nd July, 1982, an appeal involving a building contract dispute, the claim commenced in 1978 where the plaintiff sued for damages for breach of contract and negligence against the architects and builders. The architects then issued a third party notice against their consulting engineers, claiming indemnity and contribution on the ground of breach of contract and negligence. They later applied to strike out on the ground that any right to recover contribution was extinguished by the death of the sole surviving partner of the plaintiff firm and also because the matter was statute barred under the Limitations Act 1939. The Judge dismissed the application and on appeal, the appeal court dismissed it. The appeal court held, amongst others, that a Defence under the Limitations Act, must be pleaded. The reasoning for this is, as Stephenson LJ and Sir Sebag Shaw held, that although it is obviously a waste of time and money to proceed with an action that is statute barred, that it is impossible to say if the plaintiff has a reasonable cause of action, if an application to strike out based on the time limitation, is not made and heard.
    
47. Those cases and their facts and processes were complex and which, understandably, prompted the courts to make the decisions that they did. And they were disputes that were contested, to a large extent, involving several lawyers. This case does not even fall within their category, far from it. It involved a plaintiff who never involved the defendant, and which pleading consisted only of a writ of summons and statement of claim.
    
48. Which leaves the responsibility upon this Court, to make the decision that the trial Judge should have made, and that is to either issue the necessary directions for the respondent to file its Defence out of time, then subsequently, for the parties to go to hearing on the preliminary threshold issue of whether the matter is indeed statute-barred or for this court to exercise its inherent jurisdiction to ensure that justice is done and order the dismissal of the proceedings, based on the papers. In my view, because of the effluxion of time and the obvious loss of evidence, this matter should not be referred back to the National Court, for a rehearing. However, relying on the Writ filed by Kunai and Company Lawyers, Goroka, on 12th May, 2003 (pg. 8 to 15 of Appeal Book) and upon which Writ, default judgement was ordered and entered, and paragraph 2 of the Writ, where the accident is pleaded, that it purportedly occurred on 10th March, 1997; exercising inherent powers available to me as a Judge of this Court to ensure that justice is done, I find that indeed, the matter is statute-barred.
    
49. I will go one step further by holding that in any hearing for assessment of damages, that the Supreme Court directions Judge must order the provision of transcripts of the hearing on the entry of default judgment. That way the Supreme Court bench hearing the appeal, will have all the necessary records of what eventuated in the Court below. And I suggest further that this should be incorporated into the Supreme Court Rules.
    
50. I find that the trial Judge erred when he proceeded directly to assess damages without taking into account material considerations, prior to embarking on the assessment exercise. The learned trial Judge has erred by not making that finding and allowed a baseless proceeding to remain upon which the respondent stands to enrich herself. I will dismiss the appeal on that basis alone.
    
51. Although I have found that the appeal will be dismissed, I will still proceed to consider the second sub topic on the lack of good pleadings and particulars.
    

Lack of pleadings and particulars

52. Pleadings and particulars play a very important role in a parties case, be it a plaintiff or a defendant. The effect of not properly pleading can be disastrous to a party. Courts in this country, including the Supreme Court, have re-emphasized the importance of good pleadings over the years but which unfortunately, has come to naught. The leading Supreme Court case of PNGBC v. Jeff Tole (2002) SC 694 is one such case. I reproduce below what the Supreme Court said in PNGBC v. Jeff Tole (supra):
    

“The law on pleadings in our Jurisdiction is well settled. The principles governing pleadings can easily be summarized in these terms; unless there is foundation in the pleadings of a party, no evidence and damages or relief or matter not pleaded can be allowed. This is the effect of matters not pleaded can be allowed. This is the effect of the judgments of this Court in MVIT v. John Etape [1994] PNGLR 596 and MVIT v. Pupune [1993] PNGLR 370; see also MVIT v. Salio Tabanto [1995] PNGLR 214 at 221. These judgments reaffirmed what was always the position at common law and consistently applied in large numbers of cases in our country. The list of such cases is long but reference need only be made to cases like that of Repa Waima v. MVIT [1992] PNGLR 254 and Colins v. MVIT [1990] PNGLR 580 at 582 for examples only.”

53. The appellant submits that the Statement of Claim was not properly particularised or pleaded, more particularly, compliance with O 8 rr 33 and 34 of the NCR.
    
54. These rules read:
    

“33. Particulars to be given in death or personal injuries cases.

(1) Where a claim is made by the plaintiff for damages for breach of duty, and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person the statement of claim endorsed on the writ of summons shall set forth full particulars of the claim, including-

(a) the date and place of birth of each plaintiff; and

(b) a statement in summary form, of the material facts relied on as giving rise to the cause of action; and

(c) particulars of the injuries alleged to have been sustained by each plaintiff; and

(d) where relevant, a statement in summary form of the medical treatment received by each plaintiff; and

(e) where relevant, a statement as to whether or not with respect to each injured plaintiff that plaintiff has sustained any permanent disability and, if so, particulars of that disability; and

(f) particulars required by any Act under which a claim is brought; and

(g) details of each item of special damages claimed, including wages and other economic loss, both present and future; and

(h) particulars of the alleged negligence of the defendant, where negligence is alleged;

(i) where relevant, the average weekly earnings (less income tax) of each plaintiff during the months previous to the injury and the period employed during those months; and

(j) where relevant, the average weekly amount which each plaintiff is earning or is able to earn in some suitable employment or business after injury; and

(k) where relevant, the payment, allowance or benefit received from his employer by each plaintiff during the period of his incapacity; and

(l) where relevant, particulars of the person dependent on the plaintiff’s earnings,

set out, as far as may be practicable, in that order.

(2) The claim shall conclude with a summary or the relief claimed, without quantifying either general damages or costs.
(3) In this rule, “personal injuries” includes any disease and any impairment of a person’s physical, nervous or mental condition.”

55. I have already set out above the amounts that were ordered to be paid to the respondent. The appellant submits that the trial Judge made erroneous findings in relation to the deceased’s weekly income and the respondents’ loss of weekly income upon which the trial Judge made awards for all other dependants.
    
56. The appellant submits that the trial Judge erred because the respondent’s statement of claim did not plead those very pertinent facts, a requirement by the NCR.
    
57. In Jeff Tole, the requirement to properly plead any given claim was reemphasized by the Supreme Court when it said:
    

“It is clear law that, where a plaintiff’s claim is special in nature, such as a loss of salaries or wages, they must be specifically pleaded with particulars. Unless that is done, no evidence of matters not pleaded can be allowed and relief granted. That is apparent from the judgments in MVIT v. Pupune [1995] PNGLR 370 and MVIT v. John Etape [1994] PNGLR 596. These cases adopted and applied principles enunciated in those terms in authorities such as Ilkiw v. Samuel [1963] 2 ALL ER 879, per Diplock L.J at 980 – 991 and Pilato v. Metropolitan Water Sewerage and Drainage Beara (1959)76 WN (NSW) 364, per McClements .J at 365. This follows in turn from the fact that our system of justice is not one of surprises but one of fair play. Reasonable opportunity must be given to each other by the parties to an action to ascertain fully the nature of the others case so that, if need be, a defendant can make payment into Court”.(my emphasis)

58. A perusal of the Statement of Claim (page 10 to 13 of appeal book) shows that the respondent’s lawyer did not plead very relevant and vital particulars.
    
59. The pleading in the statement of claim states in most parts “ not applicable” . E.g at paragraph 5 of the Statement of Claim, headed “PARTICULARS PURSUANT TO ORDER 8 RULE 33,”, the respondent pleaded:
    

“(d) Particulars of medical treatment received by the Deceased:

- None – as instant death occurred

...

(g) Details of each item of special damages claimed, including wages and other economic loss, both present and future:

– Not applicable

...

(i) where relevant the average weekly earning (less income tax) of the deceased the twelve months previous to the injury and the period employed during those twelve months;

- not applicable

(j) Particulars of average weekly amount which the Deceased is earning or is able to earn in some suitable employment or business after the injury;

- not applicable

...

(m) where relevant, full particulars of the Deceased:

...

(c) estimate of age : 32 years

...

(g) occupation : subsistence farming

...

(j) Source of income : subsistence farming

...

(l) Fortnightly net salary

/income prior to his death : Nil except as subsistence farming

(m) other entitlements by virtue of his employment : Nil except for subsistence farming”

6. As a result of the wrongful act of the deceased, the dependants and his estate will suffer and continue to suffer loss and damages for which the Defendant is liable pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act Chapter 295.”

60. In his reasons for decision, the trial Judge embarked on a discussion of the deceased’s monetary losses based on the respondents (plaintiffs) evidence but which evidence is unsupported by the pleadings e.g at par 9 – 10 and 11 of his published reasons, he said this:
    

“She stated that prior to death, her husband worked and helped her in making gardens and sell the produce in supporting the children and herself. In other words both the children and her were dependent on the deceased and they have not lost that support as a result of the death of the deceased.

She gave evidence that she usually sell garden produce for income and earns about K5.00 per day. That was her earning after the death of the deceased. However, prior to the deceased’s death, her daily earning from the sale of the garden produce was K50.00. She stated that an average she would be marketing the garden produce 4 days a week.

The plaintiff stated further that she was assisted by her family and relatives in staging a funeral for her husband. The expense for the event was K3,000.00. No documents were presented to substantiate this claim.”

( my emphasis)

61. Ground 3(b) of the Notice of Appeal is in relation to par.9 of the trial Judge’s reasons. He states therein that the deceased “worked”. He states this relying on the respondent’s evidence. This is found at pg. 36 of the appeal book. I set out the exchanges between respondent and her counsel:
    

“Q. Now, your husband, prior to his death, what was he doing in the village in terms of looking after you and your children.?

1. He worked and helped with any problems or trouble in the village”.
   

62. The income purportedly made by the deceased and the respondent, selling vegetable garden produce, should have been pleaded at paragraphs 5 (g),(i) & (j) of the Statement of claim, rather than the inclusion of the statement ‘not applicable’.
    
63. If it was an error, respondents counsel did not further amplify or correct her evidence that the deceased ‘worked’, i.e ,if that was an error or even clarify what the respondent meant. The trial Judge adopted this evidence, when at pg. 22 of his published reasons, the trial Judge said: “she stated that prior to her death, her husband worked and helped her in making gardens and sell the produce in supporting the children and herself”. Relying on that statement, the trial Judge found the actual weekly loss to be K135.00.
    
64. I find this amount to be excessive because it is based on very scanty and non - existent evidence. I say this because the respondent is from a village in Kerowagi, Simbu province. There is no evidence of how far this village is from Kundiawa. There is also no evidence of how often the respondent travelled to market in a week. Clearly, taking into account transportation issues, the lack of buying power in a remote village market, if any, and the absence of pleading the deceased’s form of employment and his weekly salary, I find the amount of K135.00 assessed by the trial Judge to be excessive.
    
65. Apart from finding that K135.00 is excessive, it means then that all monetary awards made for the respondents dependants based on the weekly loss of K135.00, are all erroneous. They must all go.
    
66. Without doubt, the trial Judge has erred in the exercise of his discretion because no evidence can be led on matters not pleaded; especially in this case where pleading of earnings and losses is mandatory.
    
67. Based on the above findings, I will uphold ground 3(b)(c)(d)(f)(g) and (h) of the Notice of Appeal.
    

Period of Dependency

68. This part is in relation to ground 3(f) of the Notice of Appeal. The trial Judge discusses this at pgs 22, 23, and 24 of his published reasons; pgs 50, 51 and 52 of the Appeal Book.
    
69. First and foremost, the respondent did not plead the dates of birth and ages of the dependents as required by O 8 R 33(1)(l) of the NCR. In fact, early in his reasons, the trial Judge pointed this out, but then concluded that he would rely on the dates estimated in the statement of claim, which on my perusal of the statement of claim, is clearly incorrect because nowhere are the dependants’ ages estimated. It seems that the trial Judge has contradicted himself in several places.
    
70. Based on the pleaded estimated dates of birth and ages of the dependants, this makes it possible for the respondent to adduce evidence in relation to her age and that of the dependents. As Injia.J said in Andale More v Henry Tokam (1977) N1645, dated 26th September, 1997:
    

“No evidence may be permitted where there are no specific pleadings as required by s 32 of the Wrongs (Miscellaneous Provisions) Act Chap 297. Even if such evidence were allowed, the evidence lacks particularity as to age of the dependants from which the court could determine whether the parents were indeed dependant on their young son for support. “

71. And because of the lack of pleadings, no awards should have been made under this part.
    
72. I will uphold this ground of appeal.
    

Funeral Expenses

73. The respondent also gave evidence of K3, 000.00 spent on funeral expenses. The trial Judge awarded K1, 500.00. However, this is a claim more appropriately pleaded as an out of pocket expense, under O 8 R 34 of the NCR, where the respondent ought to have pleaded particulars of these monies. The Statement of Claim is devoid of this.
    
74. Indeed, the trial judge erred when he made the award of K1, 500.00 for funeral expenses because this component was never pleaded. I will dismiss this component of the plaintiff’s claim.
    

Particulars and Evidence

75. Particulars and evidence in relation to a deceased’s death are mandatory. That goes without saying. As the Judge hearing the assessment proceedings in relation to a motor vehicle accident, to assure himself that a death did occur, which obviously did not occur in the court below when default judgment was entered, the trial Judge must ask for a copy of the Certificate of Death and also the Motor Vehicle Accident Report. Which means the trial Judge proceeded to an assessment exercise without firstly assuring himself that a death did occur as a result of a motor vehicle accident. (my emphasis). A trial Judge must not accept and take for granted that this has been resolved by the entry of default judgment. In my view, when a Court tells itself that a claimant need not show a Certificate of Death and a Motor Vehicle Accident Report, that opens the door for all manner of claims being brought where the parties know that a Court will not press for evidence of death and/or accident. And all manner of claims will obviously include bogus claims.
    
76. Indeed this is similar to a situation where the Court insists that the plaintiff produce a Certificate of Registration to prove that he owned the vehicle (John Warivama v Henry Nagt Sapau (2013) N5319dated 14th August, 2013, per Makail.J) or where the plaintiff had to present medical evidence to prove the extent of the injuries he suffered. (see Sangasib v MVIT [1991] PNGLR 449 dated 10th October, 1991 per Hinchliffe J).
    
77. If the respondent’s lawyer had been liaising with the appellants, which we are not aware of, then those facts would have been put to the MVIL. Which of course raises other issues of whether the respondent did give the required notice under S 54 (6) of the MVIT Act (then), considering the history of this matter?
    
78. The respondent claims that the appellant should not raise the matters he now raises because he should have done that in the court below. Firstly, I find that submission to be negligible on several fronts. Firstly, the appeal concerns an assessment of damages hearing. This was addressed by the Supreme Court in PNGBC v Jeff Tole ( supra) where the Supreme Court said:
    

“A party’s failure to turn up at a hearing and failing to raise objections to matters not pleaded are not one and the same thing after the entry of default judgment. A defendant against whom default judgment has been entered is entitled to do nothing, if for example, he does not object to the matters pleaded and more particularly the relief prayed for being granted against him. Such a defendant is entitled to expect judgment strictly for the matters pleaded and nothing else. If a plaintiff seeks to step out of the pleadings, then he is obliged to amend the pleadings and then allow the normal process of pleadings to take place before there can even be a hearing and judgment on matters not in the original pleadings.”

(my emphasis)

79. So basically, the trial Judge should have confined himself to what was pleaded. In fact, based on the Statement of Claim before him, parts of which I refer to above, the trial Judge could not have made any awards because the mandatory requirements were not pleaded. Which means the Statement of Claim should have been dismissed.
    
80. In view of all the above, I find the trial Judge has erred in firstly, not revisiting the entry of default judgment and secondly, for failing to consider the statement of claim and the fact that it was very badly pleaded. The appeal will be dismissed.
    

Res Judicata

81. There is also the incorrect perception that a trial Judge must not revisit the entry of default Judgement because the matter is Res Judicata, having been determined by the entry of Default Judgement.
    

Res Judicata, in a few words, is a matter that has been decided on the merits. Halsburys Laws of England 4th Edn Vol 16 para 1528 and cited in Ivan Saun v Chief Inspector Hodges Ette (2005) N3031, by Lay .J , as he then was, said;“What it means is that there must be a decision on the merits of the cause of action. There must be “a final Judgement by a competent court on the merits of a claim” Tolom Abai v The Independent State of Papua New Guinea (1995) N1402 Sheehan.J. Res Judicata has no application if, although the facts have been litigated in other proceedings, the cause of action is a different one. Tin Siew Tan v Thomas John Pelis [1999] PNGLR 31 (Kapi DCJ) but it does apply where the same facts are litigated on the same claim and judgment recovered in the first action. Menapo Tulia v Eke Lama (1998) N1824. It is settled law that once a court of competent jurisdiction has determined an issue between two parties, neither of the parties is at any liberty to issue fresh proceedings raising the same issue again. However, in order to succeed in a claim for Res Judicata, there must be evidence or proof of the decision finally disposing of the matter in dispute as between the parties on its merits, Koitachi Farms Ltd v Kemoko Kenge (2001) N2143 ( Kandakasi.J). There must be finality; consequently the principle does not apply to interim orders (Mark Ekepa v William Gaupe (2004) N2694 Cannings.J “

82. The principles of Res Judicata do not apply here because a default judgement is not a matter that is decided on the merits.
    

Schedule 2.2 of the Constitution

83. There are also those who may argue that this Court is bound to adapt the principles held in the common law cases cited herein, because schedule 2.2 of the Constitution, states this. Although this schedule provides for the adoption of principles and rules of the common law, to be applied and enforced as part of the underlying law, there are in fact exceptions provided therein, one of which is that they will not be adopted and applied if they are inapplicable and inappropriate to the circumstances of the country, from time to time (schedule 2.2(1) (b)).
    
84. In this case, as I stated above, although the NCR requires that a defendant plead the limitation Defence, my view is that, where the circumstances of the case require, that the Court must exercise its inherent jurisdiction to dismiss a matter, without requiring that the appellant plead the limitation Defence, in a Defence. The principle in Lunun v Singh (supra), is not appropriate to the circumstances of this particular case.
    

Costs

85. The appellant did not appear in the National Court, only in the Supreme Court. The respondent was represented by a lawyer, who I believe, is now deceased. It is proper that all parties pay their own costs of this appeal and of the proceedings in the Court below.
    
86. KASSMAN J: I have had the benefit of reading the draft judgments of Davani J and Logan J. With respect, I would dismiss the appeal for reasons stated below. This was an appeal from the judgment of the National Court at Goroka made on 10 July 2012 in proceeding WS No. 597 of 2003. In that decision, the National Court assessed damages in favor of the Respondent totaling Ninety Three Thousand Six Hundred and Eighty Kina and Thirteen Toea (K93, 680.13) plus costs.
    

Background

87. On 10 March 1997, Kiangua Poka (“the deceased”) while walking along a road was hit by a motor vehicle and died. The Respondent Kauna Kiangua (“Kiangua”) is the wife of the deceased. The motor vehicle was insured with the Appellant Motor Vehicles Insurance Limited (“MVIL”). On 12 May 2003, Kiangua instituted in the National Court a dependency claim in proceeding WS No. 597 of 2003 seeking damages flowing from the death of her husband as a result of the motor vehicle accident described above. The claim was made by Kiangua as the wife of the deceased on her own behalf and on behalf of and their children for loss of support of the deceased following his death. MVIL’s liability for all dependency claims arises pursuant to Section 54 of the Motor Vehicles (Third Party Insurance) Act c.295 where subsection (1) provides “any claim 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 ... 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.”
    
88. It is not disputed MVIL failed to file a notice of intention to defend and a defence to Kiangua’s claim as required by the rules of the National Court. On 22 September 2006, judgment was entered for Kiangua against MVIL as a result of MVIL’s failure to file a defence to the claim. The matter then proceeded to a hearing on assessment of damages. In the judgment of the National Court, the Court said “On 10 March 2011, the plaintiff’s lawyer attended the call over and applied for a trial date. The trial for assessment was therefore fixed for hearing on 23 March 2011. At the trial, no appearance was made for the Defendant. After being satisfied on the evidence that due and proper service of the notice of trial was duly given to the defendant, the hearing proceeded in the absence of the defendant.” On 10 July 2012, damages were assessed for Kiangua and her children for separate sums along with the funeral costs and interest on the damages awarded. MVIL was also ordered to pay Kiangua’s costs of the proceedings on a party-party basis to be taxed if not agreed.
    

Grounds of the appeal

89. In the Notice of Appeal, MVIL has raised eight grounds of appeal which are stated at Grounds (a) to (h) inclusive. Ground (g) was abandoned at the hearing of the appeal and this is confirmed in the final paragraph 3.16 of the Appellant’s submissions. In Ground (a), MVIL says the National Court erred in proceeding to assess damages when Kiangua’s claim was statute barred by operation of section 31 of the Wrongs (Miscellaneous Provisions) Act Ch. 297. Grounds (b), (c), (d), (f) and (h) challenge the assessment of damages. Essentially, MVIL says the Court erred in accepting Kiangua’s evidence that the deceased was employed and earning an income when there was no pleading in the statement of claim that the deceased was working and earned an income to support Kiangua and the children at the time of his death. In Ground (e), MVIL says the court erred when it estimated the period of dependency of Kiangua was twenty years when the court failed to ascertain if Kiangua had remarried or would remarry in the future.
    

Ground (a) challenges the finding of liability

90. In Ground (a), MVIL says it cannot be held liable for Kiangua’s claim which was statute barred prior to commencement of the action and this is provided by section 31 of the Wrongs (Miscellaneous Provisions) Act ch. 297. Liability was determined on 22 September 2006 when judgment was entered for Kiangua as a result MVIL’s failure to file a defence to the claim. MVIL did not apply to set aside default judgment and neither has MVIL filed an application for leave to appeal the interlocutory default judgment. That adjudication on liability remains undisturbed. Ground (a) is raised in MVIL’s Notice of Appeal filed on 9 August 2012. That is a date over five years and eleven months from the date of the decision appealed. Ground (a) cannot stand as it could only be lawfully raised in a Notice of Appeal filed within forty days of 22 September 2006 or by 1 November 2006. Section 17 of the Supreme Court Act c.37 provides “Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.” Ground (a) is incompetent and is therefore dismissed.
    
91. Ground (a) could also be considered from another context. MVIL concedes they failed to raise the time limitation argument on a number of critical opportunities in the National Court. MVIL failed to file a defence which would have been the first opportunity to plead the statute bar argument. After judgment was entered by default, MVIL failed to file an application to set aside the default judgment and that would have been the second opportunity to plead the statute bar argument. Next, MVIL failed to make appearance at the trial on assessment of damages despite being given ample and lawful notice of the hearing. At the assessment of damages, MVIL could have raised the statute bar issue as a complete defence to the whole claim and, in addition to that, MVIL could have objected to the calling of evidence on matters not pleaded by Kiangua.
    
92. I must now consider whether MVIL should be allowed to raise on appeal an argument that was not raised in the National Court before the primary judge. There have been a number of Supreme Court judgments on point. One of the first cases was Dempsey -v- Project Pacific Ltd [1985] PNGLR 93. In that case, the appellant raised and succeeded on a major point that was not raised before the primary judge. In the Supreme Court, the appellant raised for the first time the question whether the claim was properly for a “liquidated demand”. The respondent did not object to the new matter raised in the appeal. The Supreme Court decided the appeal on the new matter when it set aside the default judgment that was entered on a defective affidavit. Although that decided the appeal, the Supreme Court went on to say that where an appellant succeeds before the appellate court on an issue not fairly put or decided in the court below, the appellant should not, as a general rule, be allowed his costs of the appeal. In MVIT v. James Pupune [1993] PNGLR 370, the Supreme Court said where evidence is admitted in the trial, without objection, to economic loss which is not pleaded, the defendant cannot on appeal hark back to the pleadings and argue that economic loss was not pleaded. At the trial before the primary judge, there was no objection to matters introduced in evidence on economic loss that had no foundation in the pleadings. The Supreme Court reasoned that, by its conduct, MVIT had allowed the trial to include matters not pleaded. The purpose of pleadings was explained in the following terms:
    

“It is well established that pleadings and particulars have the following functions: (a) they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it. (b) they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial. (c) they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into Court.”

93. There were numerous other decisions of the Supreme Court that have maintained that an appellant cannot raise and succeed on a point not previously raised at the trial court. This was the approach in civil matters such as Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596, Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694, Fly River Provincial Government v. Pioneer Health Services Limited (2003) SC705, Curtain Brothers (PNG) Limited & Curtain Brothers (Qld) Pty Limited v. University of Papua New Guinea (2005) SC788, Uma More v University of Papua New Guinea [1985] PNGLR 401, Tony David Raim v Simon Korua (2010) SC1062. Michael Pundari v Niolam Security SC1123 (2011).
    
94. In Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812, the Supreme Court discussed the point at some length pointing to a number of PNG and overseas decisions and concluded that, an appellant more so in a criminal case should be allowed with leave of the Court to raise a point of law that was not earlier raised in the trial court, provided exceptional circumstances exist warranting such an allowance. The court referred to and was persuaded amongst others by the decision of the Australian High Court decision in Dianne McGrath Fingleton v. The Queen [2005] HCA 34. In so doing, the Court distinguished the James Pupune and John Etape line of cases and said those cases concerned civil cases and matters of pleadings and what evidence is permissible and not points of law. This was followed in Cosmas Kutau Kitawal & Christopher Kutau v. The State (2007) SC927 where the Court said “We point out that the Section 20 issue was not put to the trial judge, so his Honor did not obtain the benefit of argument on it. However, it was an important point of law that should have been addressed. It was set out in the notice of appeal and it does not concern a question of fact only. It was therefore appropriate to allow the point to be argued. There is no hard and fast rule that prevents appellants raising new points of law that were not raised in the National Court.”
    
95. In Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853, the Supreme Court said:
    

“A careful perusal of what transpired in the Court below shows that the issues raised by these claims were not fairly raised and put before the trial Judge. They are therefore, raised for the first time before this Court, which BCL is not entitled to do. The reason for this is simple; an appeal lies to the Supreme Court to examine and where warranted, correct an alleged error of a trial judge and not the failures of parties to raise issues, factual or legal, they should have first raised in the Court below. An appellate court does not and cannot sit as a court of original jurisdiction. Further, there is always the need for finality in litigation. Additionally, fairness to a trial judge and the parties themselves, the need for proper and timely management and disposition of cases and the need to minimize costs of litigation to the parties and the Court, demands that an appellate Court should not hear and determine issues not first raised in the trial court, except with the consent of the parties or with special leave of the Court in very exceptional circumstances such as want of jurisdiction.”

96. In all these decisions, there was appearance for all parties in the National Court whereas in this matter, there was no appearance for MVIL and neither did MVIL file a defence to the claim. From these authorities, I note the Supreme Court has been prepared to exercise powers on appeal to examine and correct an error of a trial judge on a point not raised in the trial court. This jurisdiction will be readily exercised where a major point is raised and more so where the issue raised goes to a substantive legal issue concerning the claim. Jurisdiction should not be exercised where the conduct of the appellant prior to and at the trial contributed to the failure to raise and deal with the issue especially issues concerning pleadings and evidence. Further, where an appellant succeeds before the appellate court on an issue not fairly put or decided in the court below, the appellant should not, as a general rule, be allowed his costs of the appeal.
    
97. In Ground (a), MVIL says the National Court erred in proceeding to assess damages when Kiangua’s claim was statute barred. Section 31 of the Wrongs (Miscellaneous Provisions) Act c. 297 provides that all dependency actions must be commenced within three years after the death of the deceased person. MVIL say the motor vehicle accident and the death of the deceased occurred on 10 March 1997. As such, Kiangua’s claim should have been filed by 10 March 2000. Kiangua’s claim was filed on 12 May 2003 which was a date well outside the three year time period allowed for the filing of the dependency claim. This was not refuted by the Appellant. The Wrongs (Miscellaneous Provisions) Act c. 297 is an Act relating to various aspects of the law of wrongs including liability in respect of motor vehicles caused by wrongful actions or negligence. By sections 25 and 26, the spouse and children of the person who has died, as a result of the motor vehicle accident, are entitled to make a claim for their losses following the death. By Section 31, such action must be filed within three years of the date of the death. Section 31 provides “Only one action under this Part lies for and in respect of the same subject-matter of complaint, and every such action must be commenced within three years after the death of the deceased person.” Further, by Section 37(6), MVIL is deemed to be the “tort-feasor” or wrongdoer in relation to the death and is responsible for the damage or loss of the claimants. I follow the decision of the Supreme Court in Sakaire Ambo v Motor Vehicles Insurance (PNG) Trust (2002) SC681 which held that a cause of action arising out of a motor vehicle accident is governed by the Wrongs (Miscellaneous Provisions) Act Ch. 297.
    
98. MVIL was correctly named as the defendant and liable to the claim filed by Kiangua but such claim had to be filed in the National Court within three years of the death of the deceased. The death occurred on 10 March 1997. By section 31, MVIL would have been liable for Kiangua’s claim had it been filed within three years of the death of the deceased or by 10 March 2000. Kiangua’s writ was filed on 12 May 2003, a date outside the period within which MVIL was accountable by law. It is arguable the Default Judgment for Kiangua against MVIL of 22 September 2006 was entered without lawful foundation as MVIL was no longer liable for Kaingua’s claim. This is a major point that goes to a substantive legal issue. The claim by Kiangua was statute barred when it was filed and when default judgment was entered in favor of Kaingua against MVIL. Although I am satisfied this is a major point raised in Ground (a) of the Notice of Appeal, MVIL failed to raise the time limitation issue by failing to file a defence. Further, MVIL failed to appear and oppose the entry of default judgment by raising the time limitation issue. As such, the National Court had jurisdiction on 22 September 2006 to enter default judgment for Kiangua.
    
99. I adopt discussion on this issue in Chitty On Contracts Twenty–Seventh Edition London Sweet & Maxwell 1994 at page 1373 “The effect of limitation under the Limitation Act 1980 is merely to bar the plaintiff’s remedy and not to extinguish his right. Limitation is a procedural matter, and not one of substance: the right continues to exist even though it cannot be enforced by action. ... A procedural bar does not go to the jurisdiction of the court or of an arbitral tribunal.” Leif Hoegh & Co. A/S v Petrolsea Inc. [1992] 1 Lloyds Rep. 45, 49. I also adopt discussion in Cheshire & Fifoot’s Law of Contract Eighth Australian Edition by NC Seddon and MP Ellinghaus LexisNexis Butterworths 2002 at page 1056 “The defendant must plead the statute as a defence. It is not the court’s task to raise the question of time limits and the court has jurisdiction to hear a matter even though the time has expired. This is because expiry of the time does not affect the substance of the claim but only the remedy.” At page 1063 “The statute is procedural, not substantive. If the statutory period expires before action is brought, the plaintiff’s right is not extinguished.” Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 93 ALR 131. Further at page 1064 “It is because the expiration of the period bars the remedy and not the right that the statute must be specifically pleaded as a defence. If it is not, the court has jurisdiction to hear the matter.” See Robinson v Craven [1994] Aust Torts Reports 61,864 (SC(SA), Full Ct). The National Court had jurisdiction to enter default judgment on 22 September 2006. That adjudication of liability remains undisturbed. Ground (a) of the notice of appeal is dismissed.
    

Grounds (b), (c), (d), (e), (f) and (h) challenge the assessment of damages

100. The remaining grounds of the appeal challenge aspects of the assessment of damages. In ground (b), MVIL says the Court erred in accepting Kiangua’s evidence that the deceased was employed and earning an income when there was no pleading in the statement of claim that the deceased was working and earned an income to support Kiangua and the children at the time of his death. In ground (c), MVIL says the Court erred in awarding damages and interest of K92,180.13 when there was no pleading in the statement of claim that the deceased was working, earned an income and supported Kiangua and the children at the time of his death. In grounds (d) and (h), MVIL says the Court erred in accepting Kiangua’s evidence that she and the children suffered a weekly losses of certain amounts when there was no pleading in the statement of claim that she and the children suffered actual weekly losses. In ground (f), MVIL says the Court erred in estimating the age of Kiangua and the children and the period of dependency when there was no pleading in the statement of claim specifying the period of dependency. All of these grounds (b), (c), (d), (f) and (h) are answered by reference to details provided in paragraph 5 of the statement of claim. In paragraph 5(l), Kiangua and all five children are named as the dependents of the deceased and their respective ages are stated. In paragraph 5(m), Kiangua pleads the deceased was a “Subsistence Farmer” and his source of income was described as “Subsistence Farming” and details of his fortnightly income and other entitlements were stated as “Nil except as subsistence farming”. Further, in paragraph 6, it is pleaded “As a result of the wrongful death of the deceased, the dependants ... will suffer and continue to suffer loss and damages...” I am satisfied that the evidence accepted by the Court fell within the particulars pleaded in the statement of claim. I refer again to MVIT v. James Pupune [1993] PNGLR 370 and what I said above. Grounds (b), (c), (d), (f) and (h) of the appeal are dismissed.
     
101. In Ground (e), MVIL says the court erred when it estimated the period of dependency of Kiangua was twenty years when the court failed to ascertain if Kiangua had remarried or would remarry in the future. I do not see any merit in this argument which is advanced in MVIL’s submissions by saying that it was “highly likely” that Kiangua “would have remarried after the death of the deceased”. There was no evidence produced which gives a hint, let alone a foundation for such argument. Indeed it was open to the court to make the assessment it did make of the dependency of Kiangua on the evidence presented in Court which was not challenged. Ground (e) of the notice of appeal is dismissed.
     
102. As ground (h) was abandoned at the hearing of the appeal, there are no grounds remaining. I would therefore order that the appeal be dismissed. As costs follow the event, the Appellant MVIL should pay the Respondent’s costs of the appeal.
     
103. LOGAN J: I have had the advantage of reading in draft the judgements of Davani J and of Kassman J. Davani J has set out the course of events in the proceedings in the National Court up to and including the judgement in 2012 by which damages were assessed. She has also summarized other pertinent background facts and the pleadings of the respondent as plaintiff in the National Court.
     
104. I regret that I am unable to agree that the outcome of this appeal is dictated by a failure by the learned National Court judge to advert to s 31 of the Wrongs (Miscellaneous Provisions) Act (Chap 297) (Wrongs Act) when assessing damages.
     
105. The appeal is against the judgement of the National Court given in respect of the assessment of damages in 2012. There has never been an appeal against that court’s earlier, 2006, judgement by which the respondent was given judgement in default of the filing of a defence by the appellant. That default judgement was interlocutory in character. An appeal against it would lie only by leave. No such leave has ever been sought, much less granted.
     
106. The position which obtains therefore is that, in respect of liability, there is a subsisting judgement of the National Court, which is a superior court of general jurisdiction, which has not been set aside.
     
107. In the White Book Service 2013, which contains annotations in respect of the Civil Procedure Rules for the High Court of Justice of England and Wales, the following statement appears at paragraph 12.4.4 in respect of the default judgement rule of that court, “A judgement in default is conclusive on liability but damages still have to be proved and a defendant can raise any issue which is not inconsistent with the judgement.” The authority cited by the learned editors of the White Book for that proposition is Lunun v Singh (Hajar), The Times, July 1999, [1999] CPLR 587. Lunun v Singh (Hajar) was a judgement of the Court of Appeal in which, at 600, Jonathan Parker J stated:
     

"In my judgement, the underlying principle is that on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment."

The annotation in The White Book is an accurate summary of the effect of this observation by his Lordship. So far as my researches reveal, the principle stated in Lunun v Singh (Hajar) has not been doubted in the higher courts of England and Wales. To the contrary, its correctness has been assumed in a recent and very helpful discussion of the principle and related authorities in a judgement delivered last year by Mr Simon Picken QC, sitting as a Deputy Judge of the High Court, in Symes v St Georges NHS Trust [2014] EWHC 2505 (QB); [2014] Med. L.R. 449 (QBD); (2014) 140 B.M.L.R. 171.

108. Symes v St Georges NHS Trust concerned a claim in negligence which arose from a failure on the part of the National Health Service to diagnose a lump on the face of a patient, the plaintiff. The plaintiff had subsequently developed inoperable lung cancer and, as a result, had but a short time left to live. The defendant did not file a defence. Instead it filed a letter headed “limited admission”. In that letter the defendant admitted negligence but did not admit that the delay in treatment had any major impact on outcome. Judgment was subsequently entered in default. In the context of the assessment of damages by a Master, and in accordance with the prevailing practice, the defendant filed and served on the plaintiff what was termed a “counter-schedule” in which it admitted causation in part but denied causation in relation to it major aspects of the plaintiff’s claim. This counter-schedule was struck out by the Master, partly because it was incompatible with the default judgement obtained by the plaintiff. The defendant then appealed against the Master’s order striking out the counter-schedule.
     
109. It was against this background that the Deputy High Court judge came to consider the principle in Lunun v Singh (Hajar), at [57] to [69]. The passage concerned, though lengthy, is helpful, in my view, for the pertinent guidance it offers in relation to this appeal:
     
     57. As Carr J put it in New Century at [30], the starting point is to look at the Particulars of Claim, which are to be regarded as "a proxy" for the default judgment obtained on 2 July 2013, in order to work out what the default judgment is to be taken as having decided, and whether, therefore, the Defendant is trying to go behind the issues which that default judgment is to be taken as having determined. This approach is consistent with the need, identified by Viscount Radcliffe in Kok Hoong, to scrutinise a default judgment "with extreme particularity" (or, as Lord Maugham LC put it in New Brunswick, "with complete precision") so as to ascertain "the bare essence of what" it "must necessarily have decided".
         
     58. In answering this critical question, it seems to me that I am bound to follow the approach adopted in Turner and Lunnun, an approach which has been followed in various subsequent cases
         
     59. (specifically, Pugh, Enron, Carbopego, Strachan and New Century) and which is consistent also with the view expressed by Sir Richard Scott V-C in Maes Finance. To adopt any different approach is simply not open to me, any more than it was open to Master Roberts. These are all cases in which the same approach has been adopted, albeit with different outcomes. No case was cited to me where a different approach has been applied. Nor, specifically, I am bound to observe, was any case cited to me in which it has been held that a defendant could not challenge causation in the face of a judgment in default where damages have been ordered to be assessed. Turner and Lunnun (and Carbopego, a non-tort case) were, on the contrary, cases in which it was held that causation could be challenged notwithstanding the relevant judgment, whether a summary judgment (as in Turner) or a judgment in default (as in Lunnun and Carbopego). True, in Turner and Lunnun, the two tort cases, the defendants were precluded from being able to argue that no loss at all was sustained, because such an argument would be inconsistent with a judgment on liability in circumstances where, in a tort context, there has to be some damage caused by the tort for the cause of action to be complete. However, beyond this the defendants were permitted to take issue with causation. That was the actual decision in Turner and Lunnun, and it was also what Sir Richard Scott V-C made clear in Maes Finance, albeit when dealing not with causation but with the question of whether contributory negligence could be advanced in the context of an assessment of damages hearing, in the passage cited by Clarke LJ in Lunnun.
         
     59. I am clear, as I say, that, in such circumstances, I must apply the approach explained in Turner and Lunnun, both cases in which damage was a necessary ingredient of the claimant's cause of action: in Turner, a claim in the tort of negligence; and in Lunnun, a claim in nuisance. Authorities such as Pugh and New Century, in contrast, were concerned with very different allegations made by the claimants (in each case, the claims were not in tort but for breach of contracts of employment), and the defendants were attempting to advance arguments which went to the question of breach of contract. They were not cases in which the issue was causation, nor were they tort cases where, without damage caused by the relevant breach of duty, there is no cause of action at all. These authorities are, therefore, of only limited assistance in relation to the question which I have to decide.
         
     60. As I have pointed out, Mr Skelton himself recognises that, in the context of the assessment of damages phase of the proceedings, it is open to the Defendant to advance arguments that the Claimant ought not to be permitted to recover to the extent of the amounts claimed. His submission is that that type of causation point falls the assessment of damages side of the line, whereas other types of causation issue are part and parcel of liability and, as such, are caught by the default judgment. In advancing this submission, Mr Skelton is acknowledging that not all causation issues have been determined by the default judgment and that, to that extent, Mr Stagg's argument is right. What Mr Skelton submits, however, is that it is not open to Mr Stagg simply to say (in an echo of Mr Exall's successful submission in Lunnun) that the default judgment is to be regarded as merely having determined that the Claimant suffered 'some damage' as a result of the Defendant's negligence because nowhere in the Particulars of Claim in this case does the Claimant allege that he suffered merely 'some damage'; on the contrary, the Particulars of Claim are specific as to the damage which the Claimant alleges that he has suffered. Therefore, Mr Skelton submits, viewing the Particulars of Claim as a proxy for the default judgment, the damage which is necessary in order for there to be a cause of action must be the damage alleged in the Particulars of Claim and not some vague (and, indeed, unpleaded) allegation that the Claimant suffered 'some damage'.
         
     61. As a matter of principle, it seems to me that there is something to be said for this last submission. Matters might be different if the Particulars of Claim had not specified the consequences of the breaches of duty alleged by the Claimant. However, paragraphs 24 to 26 of the Particulars of Claim are specific. This is not, therefore, a case in which the Claimant can be taken as having alleged in the Particulars of Claim that he had suffered merely 'some damage'. However, in my judgment, there are two difficulties with the submission which mean that it is not a submission which I can accept: the first a difficulty based on authority; the second a difficulty based on the fact that, in paragraphs 24 to 26 (specifically in paragraph 26 actually), the Claimant has alleged three consequences, the first of which (that the Claimant "would not have suffered the pain and discomfort associated with his developing tumour between then and his eventual operation 19th May 2009": see sub-paragraph (a)) the Defendant accepts was caused by the breaches of duty alleged.
         
     62. As to the difficulty presented by authority, it was not stated in Turner by Simon Brown LJ that the "some injury" which a defendant "must acknowledge ... to a plaintiff before judgment could properly be entered against" the defendant (Turner being a summary judgment case rather than a default judgment case) had to be the actual injury which the claimant was himself alleging. More significantly, however, given that Turner is only a brief judgment and was only concerned with an application for permission to appeal, in Lunnun Clarke LJ, having cited from Sir Richard Scott V-C's judgment in Maes Finance, went on to say that "Moreover" the defendant may still argue that its acts or omissions were not causative of any particular items of alleged loss "even if the statement of the claim alleges a particular item was caused by the tort". In other words, as I understand it, Clarke LJ was making the point that it does not matter that the claimant's statement of case alleges that particular losses were caused: the defendant can argue that, whilst 'some damage' was caused, it was not the damage alleged by the claimant in his statement of case.
         
     63. It is notable, in this context, that Clarke LJ went on to explain how, on the facts of the nuisance case which he was considering, the defendant could not challenge that water and sewage had escaped into the claimant's property and that damage had thereby been caused, but that the defendant could dispute how much leakage there had been, how much damage that leakage had caused, and what loss the claimant had suffered as a result. This is consistent, as I see it, with Clarke LJ adopting an approach which requires simply that the defendant recognises that 'some damage' has been caused, and not that the defendant should be taken as having accepted that the actual damage alleged by the claimant in his statement of case has been caused by the breach of duty alleged. Neither Jonathan Parker J nor Peter Gibson LJ suggested otherwise, and I consider that I am bound by what Clarke LJ had to say on this issue.
         
     64. I might add that I am not persuaded by Mr Skelton's suggestion that Turner and Lunnun are authorities which do not apply in the clinical negligence context. Clinical negligence claims are claims in negligence. As such, damage is a necessary ingredient of the cause of action in a road traffic claim (as in Turner) just as much as (but no more than) in relation to a clinical negligence claim. I see no justification for treating the two types of negligence claims differently, and I decline to do so. Nor do I consider that Mr Skelton's description of clinical negligence practice (a description which is, anyway, challenged by Mr Stagg) really assists me in relation to what is, in the context of the present issue, a question of what is required to make good a negligence claim as a matter of substance rather than as a matter of practice.
         
     65. Nor am I at all convinced by Mr Skelton's point that the position described in Turner and Lunnun is no longer the position under the CPR since (as Master Roberts observed in the case of Turner: see his judgment at [26]) these are authorities which pre-date the introduction of the CPR. That plainly is not the case in view of various authorities which have followed Lunnun under the CPR regime: Pugh, Enron, Carbopego, Strachan and New Century being examples of such cases.
         
     66. Even if all the above is wrong, however, and there is a need for the damage determined by the default judgment to have been damage which the Claimant has alleged in his statement of case (the proxy for the default judgment), and not merely that the Claimant has suffered 'some damage' without reference to how the Claimant has himself put his case, it seems to me that in the present case the answer, as far as the Defendant is concerned, is that the Defendant does accept that the Claimant has suffered at least some of the damage which the Claimant has himself alleged in the Particulars of Claim. This is because, as I have pointed out already, the Defendant does not take issue in its Counter-Schedule with the first of the causation contentions made in paragraph 26 of the Particulars of Claim, namely that the Claimant "would not have suffered the pain and discomfort associated with his developing tumour between" the date when his operation should have taken place (identified as mid-February 2009) "and his eventual operation 19th May 2009" (see sub-paragraph (a)). This is apparent from the passage from the Counter-Schedule to which I have referred in paragraph 22 above, where the Defendant states that "save for any additional pain and suffering which the Claimant experienced during the period of 90 days that the surgery was delayed (and for which no analgesia was prescribed by the Claimant's GP), no other loss or damage arises in consequence of the admitted delay". Admittedly, the Defendant takes issue with the amount of damages which might be awardable in respect of this period, but that is an aspect which, even on Mr Skelton's approach, it is open to the Defendant to maintain because it is, as he accepts, in the category of "causation issues that form part of the quantum case".
         
     67. The significance of the Defendant's acceptance that, by reason of its negligence, the Claimant has suffered not merely 'some damage' but some of the actual damage which the Claimant has himself alleged in the Particulars of Claim is that, as I see it, even if Mr Skelton is right and it is not open to a defendant to admit to damage which has not been alleged, this is, anyway, not such a case. In consequence, unless it can be said that the default judgment represents a decision that all of the damage alleged by the Claimant was suffered by him as a result of the Defendant's negligence, as opposed to some of the damage alleged (as opposed to merely 'some damage' which has not been alleged by the Claimant), then, it must be open to the Defendant to advance its causation objections to the other aspects of damage alleged by the Claimant. However, I do not myself see any justification for a conclusion that the default judgment covers all the damage alleged in paragraph 26 of the Particulars of Claim, specifically in sub-paragraphs (b) and (c) (and, therefore, the matters listed by Master Roberts in his judgment at [24]: see paragraph 49 above). Applying the Turner and Lunnun approach, and scrutinising the default judgment "with extreme particularity" and "with complete precision" so as to ascertain "the bare essence of what they must necessarily have decided", as required by Kok Hoong and New Brunswick, I do not consider it appropriate to reach such a conclusion. It is sufficient that some of the damage alleged by the Claimant is damage with which the Defendant does not take issue, since this means that the liability alleged by the Claimant in the Particulars of Claim (and established in the default judgment using the Particulars of Claim as a proxy) has been made out. It is not necessary for liability to have been established that all the damage alleged in the Particulars of Claim should have been determined by the default judgment to have been sustained by reason of the Defendant's negligence.
         
     68. I should say that I do not consider that this involves the Defendant (rather than the Court or the Claimant) having "the power to determine the ambit of the default judgment insofar as it determines issues of liability", as Mr Skelton suggests. It seems to me that it is simply the consequence of having to use the Particulars of Claim to discern what the default judgment should be taken as having determined in relation to a claim in negligence which requires there merely to be 'some damage' for the cause of action to exist. It is worth having in mind, in this connection, that it would presumably have been open to the Claimant to have sought, by means of an appropriate application to Master Roberts, to define in the default judgment what damage was caused by the defendant's breach of duty. Had that been done, there would have been what Mr Skelton describes as the "forensic certainty" which he suggests is necessary. This was not, however, done, and the consequence, as it seems to me, consistent with Turner and Lunnun, is that the default judgment should be regarded as having determined merely that there was 'some damage', whether (as I am inclined to think ought to be the case, purely as a matter of principle and, I stress, were I viewing matters free from authority) that is in the categories of damage alleged in the Particulars of Claim or (in line with Turner and Lunnun, and so applying the approach which, in my view, authority demands) that is any damage (whether alleged in the Particulars of Claim or not).
         
     69. In these circumstances, and for these reasons, I conclude that the Defendant's submissions in relation to this issue are right, and that Master Roberts was wrong to have reached the conclusion which he did. This is, therefore, a case in which CPR 52.11(3)(a) applies. However, this does not entirely dispose of the appeal because it is apparent from his judgment that Master Roberts based his ultimate conclusion not only on the effect of the default judgment but also on his view that the Defendant had acted in breach of the CPR and contrary to the Overriding Objective. It is this matter which I now come on to address.
         
113. Two of the cases cited by the Deputy High Court judge in the passage quoted, New Brunswick Railway Co v British & French Trust Corp Ltd [1939] AC 1 and Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] A.C. 993 are of such high and longstanding authority that they require particular emphasis. In New Brunswick Railway Co v British & French Trust Corp Ltd, at 21, Lord Maugham LC stated the principle as to an estoppel based on a default judgment in this way:
     

The true principle in such a case would seem to be that the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment; in other words by the res judicata in the accurate sense.

Kok Hoong v Leong Cheong Kweng Mines Ltd is a judgment of the Judicial Committee in an appeal from Malaysia. At the time, the governing civil procedure with respect to default judgments was not materially different from that applicable in England and Wales. The Judicial Committee stated, at 1010:

... there is no doubt that by the law of England, which is the law applicable for this purpose, a default judgment is capable of giving rise to an estoppel per res judicata. The question is not whether there can be such an estoppel, but rather what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand.

In that same case, at 1012, what was stated by Lord Maugham in New Brunswick Railway Co v British & French Trust Corp Ltd was described as “an authoritative reinterpretation” of principle.

114. The position in Papua New Guinea under the National Court Rules is also not materially different from that in England and Wales under the Civil Procedure Rules in relation to the consequence of a default judgement in respect of liability. In these circumstances, two constitutional considerations also intrude. Subject to the Constitution, “the principles and rules of common law and equity in England” immediately before Independence are adopted as part of the Underlying Law: Sch. 2, Part 2, Sch 2.2(1). Further, the Constitution expressly recognises and preserves the legal doctrine of res judicata, the doctrine referred to in New Brunswick Railway Co v British & French Trust Corp Ltd: Sch. 2, Part 5, Sch. 2.8(1)(d). There is no warrant for any local departure from settled principle in relation to this doctrine. It follows that the principle in Lunun v Singh (Hajar) and the discussion of that principle in Symes v St Georges NHS Trust are just as applicable in this country. Thus, with all respect to those who have expressed a contrary view, it was not, in my view competent, in an appeal against the 2012 judgement for the appellant to seek to impeach, by raising a question concerning s 31 of the Wrongs Act, its liability as established by the subsisting, 2006 default judgement.
     
115. Further and in any event, and again with all respect to those who have expressed a contrary view on this separate subject, s 31 of the Wrongs Act, in my view, bars the remedy but not the right. In other words, if the limitation defence is not pleaded, and here there was no defence at all filed, the proceeding is competent, even though the claim relates to a wrong which occurred more than three years after the death of the deceased person concerned. The language of 31 of the Wrongs Act, “every such action must be commenced within three years after the death of the deceased” is not, in my view, distinguishable from an analogue, s12(2)(a), found in the Limitation of Actions Act 1980 (UK), which materially provides, no such action shall be brought after the expiration of three years from the date of death”. In Ronex Properties v John Laing Construction [1983] QB 393 at 404, Sir John Donaldson MR observed of the Limitation of Actions Act that, “it is trite law that the English Limitation Acts bar the remedy and not the right, and furthermore, that they do not even have this effect unless and until pleaded”.
     
116. For each of these reasons, insofar as the appeal relies on s 31 of the Wrongs Act, it must, in my view, fail.
     
117. In the circumstances of this case, it would also have been subversive of the judgement in respect of liability for the learned primary judge to have revisited whether the deceased had died in the motor vehicle accident alleged or, indeed, whether he was dead. These would only have been issues on an application to set aside the default judgement as to liability on the basis that it had been procured by fraud arising from, for example, the fact that the alleged deceased was alive. That was never the appellant’s case.
     
118. Nor was it necessary, in my view, for the learned primary judge to have examined whether notice had been given under s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Chap No 295). The absence of any such notice was a matter for the appellant to allege in a defence filed in the National Court and then to prove. It made no such defence. Once again, it would have been subversive of the default judgement as to liability for the learned National Court judge to have revisited this question on an assessment of damages.
     
119. It does not necessarily follow from this that other grounds of appeal are without merit. Recalling the discussion of principle in Symes -v- St Georges NHS Trust, quoted above, the statement of claim in this case serves as "a proxy" for the default judgment obtained by the respondent in 2006. It must be scrutinised with great care. Davani J has done this. That scrutiny reveals that, under paragraph 5 of the statement of claim, the following appeared:
     

"(l) Fortnightly net salary /income prior to his death : Nil except as subsistence farming

(m) other entitlements by virtue of his employment : Nil except for subsistence farming"

120. As can be seen, this pleading contains an exception in relation to subsistence farming. The evidence led at the trial and the assessment subsequently made by the learned primary judge fell within the confines of these pleaded exceptions. This was not, with respect, a case where there was an absence of a pleaded economic loss. Such a loss was pleaded. The default judgement concluded that such a loss had resulted from the tort which occasioned the death of the deceased. It was for the respondent to prove the amount of that loss in the assessment of the dependency claim. This she did by evidence accepted by the learned primary judge. There is, to this extent, no basis for disturbing his Honour's assessment.
     
121. The position with respect to funeral expenses is different. There is no pleaded claim for these. Evidence as to the incurring of these was, therefore, not relevant. Such expenses ought not to have been allowed on the assessment. To this extent only, the appeal must succeed. That has the consequence that the award of damages ought to be reduced by the sum of K1,500.00 together with the related amount of interest. Save as aforesaid, the award ought, in my view, to stand.
     
122. The result is that Davani J would allow the appeal in its entirety, Kassman J would dismiss the appeal in its entirety and I would allow the appeal in part only, to the limited extent of reducing the judgement below by the amount allowed for funeral expenses and a related interest component. Save as aforesaid, I would dismiss the appeal.
     
123. Two judges of the Court are agreed, albeit for different reasons, that the judgement below was wrong in law to the extent that it made allowance for funeral expenses and a related interest component. In my view, that means that the judgement of the Court must reflect the majority opinion as to that issue of law: Hepples v Federal Commissioner of Taxation [1992] HCA 3; (1992) 173 CLR 492.
     
124. By my calculation, that has the following consequence:
     
     • Judgement award in favour of respondent:

K36,864.96, comprising assessed damages of K21,273.18 (including K1,500 for funeral expenses) and interest at 8% per annum on that sum for 3,344 days namely, K15,591.78.

• Revised judgment award in favour of respondent if funeral expenses and related interest disallowed:

K34,265.76, comprising damages as originally assessed, less funeral expenses (K21,273.18 – K1,500 = K19,773.18) and interest as reduced by component referable to funeral expenses (K15,591.78 – K1,099.20 = K14,492.58) [Interest reduction calculated as follows, adopting rounding: 3,344 days divided by 365 yields a per annum multiplier of 9.16. K1,500 x .08 (8% per annum) = K120 x 9.16 (per annum multiplier) = K1,099.20.

125. I would amend the judgement in favour of the respondent such that she have judgement in the sum of K19,773.18, together with interest in the sum of K14,492.58, in total K34,265.76.
     
126. Because the appeal has substantially failed, I would order that the appellant pay the respondent's costs.
     

Judgment accordingly.
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Warner Shand Lawyers : Lawyer for the Appellant
Public Solicitor : Lawyer for the Respondents