SC1846

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 121 of 2018

BETWEEN
ANDREW NEKIYE
Appellant

AND
MOTOR VEHICLES INSURANCE LIMITED
Respondent

Waigani: Hartshorn, Kariko and Berrigan JJ
2019: 28 and 30 August

SUPREME COURT – Appeal – Evidence of liability and quantum of damages – Discretion under s. 37(2) of the Evidence Act - Section 54 of the Motor Vehicles (Third Party Insurance) Act, 1974.  

Cases Cited:
Papua New Guinea Cases

Curtain Bros (PNG) Ltd v UPNG (2005) SC788

Overseas Cases

References cited

Section 54 of the Motor Vehicles (Third Party Insurance) Act, 1974
Section 37 of the Evidence Act, 1975

Counsel:

Mr H. Pora with R. Norum, for the Appellant
Mr J. Aku, for the Respondent

DECISION ON APPEAL

30th August, 2019

1.   BY THE COURT: This is an appeal from a decision of the National Court made on 6 July 2018 dismissing an action for damages for personal injuries allegedly sustained in a motor vehicle accident on 14 February 2011.

2.  The appellant relies on nine (9) grounds of appeal, all of which have been considered in rendering this decision.  

Grounds 3(a), (b), (c) and (d):  Affidavit of Andrew Nekiye sworn 30 July 2014

3.  The principal line of argument upon which the appellant relies in this appeal is that the learned trial judge erred in fact and law in finding that the appellant’s affidavit, together with its annexures, had not been admitted into evidence, and that on that basis there was no evidence of liability and/or damages to establish the claim.  

4.   In giving his decision, the learned trial judge did exclude the entirety of the appellant’s affidavit on the basis that it had not been formally admitted into evidence.  It is somewhat unclear but, with respect to his Honour, in our view the record does show that the affidavit, as amended, but excluding annexures B, D and E, was admitted into evidence as Exhibit P1. 

5.   That is beside the point, however.  Other than establishing that there was an accident, which was conceded by the respondent on this appeal, the affidavit failed to establish that the respondent was liable under the Motor Vehicles (Third Party Insurance) Act, 1974 in the first instance, or that as a result of any breach, the appellant suffered quantifiable damage.

6.   In admitting the affidavit, the trial judge correctly excluded annexures B, D and E as hearsay.  Annexures D and E are medical reports for which the makers were not called.  Annexure B is a copy of the appellant’s health clinic book.  Objection was taken to the latter on two bases, namely that it was hearsay and that the original was not produced.  Whilst a further affidavit from the appellant might have explained why the original was unavailable it could not and did not cure the fundamental objection.  The learned trial judge was correct to exclude all three annexures as hearsay.  The other annexures, namely correspondence between the disputing parties, a photograph of the appellant, and two road accident reports, one of which was hearsay and the other which is dealt with below, took the appellant’s case on liability and quantum no further.

7.   Grounds 3(a), (b), (c) and (d) are dismissed. 

Ground 3(g): Affidavit of Dr Sonny Kibob sworn 28 April 2017

8.   Nor was there any error on the part of the trial judge in exercising his discretion to exclude the affidavit of Dr Sonny Kibob of the Port Moresby General Hospital, sworn 28 April 2017, on the basis that he failed to appear for cross-examination pursuant to s. 37(2) of the Evidence Act, 1975.  
	
9.   S. 37(1) of the Evidence Act provides that an affidavit made by a medical practitioner setting out certain matters is admissible in evidence.  Notwithstanding that, s. 37(2) specifically provides that s. 37(1) does not prevent a court, where it is satisfied, that (emphasis added):  “the justice of the case warrants its doing so, from … requiring the medical practitioner who made the affidavit to attend and give evidence...”.

10.   It is well established that an appellate court "will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is "unreasonable or plainly unjust" and such that an error can be inferred”: Curtain Bros (PNG) Ltd v UPNG (2005) SC788, since cited with approval in State v. Sam Akoita and Ors (2009) SC977; Isaac Lupari v. Sir Michael Somare (2010) SC1071; Ron Napitalai v. PNG Ports Corporation Ltd and Ors (2010) SC1016; and PNG Power Ltd v Gura (2014) SC1402. 

11.   Doctor Kibob’s evidence was critical to the appellant’s claim at the lower court and appropriate notice to cross-examine had been filed by the respondent.  It was encumbent upon the appellant to produce him to give evidence. The learned trial judge’s finding that the “justice of the case” warranted Dr Kibob’s attendance pursuant to s. 37(2) of the Evidence Act, was open to him in the circumstances, as was his decision to exclude the affidavit in his absence, particularly having regard to the failure of the witness to attend in compliance with a summons some four months earlier.  On that occasion the trial judge vacated the trial date to allow the appellant a further opportunity to secure the witness’ attendance and issued a further summons for this purpose.  

12.   Ground 3(g) is dismissed. 

Grounds 3(e) and (f):  Evidence of Registration and Insurance

13.  Furthermore, the appellant has failed to establish that the learned trial judge erred in fact or in law in refusing to accept the police accident report as evidence that the motor vehicle involved in the alleged accident was registered and insured for the purposes of s. 54 of the Motor Vehicles (Third Party Insurance) Act at the time of the accident.

14.   The respondent, through its defence to the statement of claim, specifically denied these matters, amongst others.

15.   The only evidence to establish the matters at trial were the registration and policy numbers contained in the road accident report produced by Senior Constable Lemuel Tikai.  He gave no evidence either in his affidavit nor during oral evidence as to the provenance of this information, however.  No certificates or evidence of searches at MVIL were produced.  Contrary to submissions from the appellant’s counsel, Senior Constable Tikai did not give evidence under cross-examination that he obtained it as a result of his own enquiries at MVIL. 

16.  The only other witness to give evidence at the trial was the driver, who also failed to produce evidence of these matters.

17. His Honour carefully considered and applied the case law on the requirements under s. 54 of the Motor Vehicles (Third Party Insurance) Act before reaching his conclusion.  There was no error in fact or law as a result.

18.  Grounds (e) and (f) are dismissed.

Grounds (h) and (i): Standard of proof and Respondent’s defence

19.   These grounds are misconceived and dismissed. It was for the appellant to establish his claim to the requisite standard, which was correctly identified as the balance of the probabilities by the learned trial judge in his written decision.

Conclusion 

20.  For the above reasons we conclude that in all the circumstances of the case we are not satisfied that the appellant has shown that the learned trial judge fell into error such that the appeal should be upheld. 

21.  The appeal is dismissed.  The appellant shall pay the respondent’s costs of and incidental to the appeal.

_______________________________________________________________
Simon Norum & Co Lawyers:	 Lawyer for the Appellant
Warner Shand Lawyers: 			Lawyer for the Respondent