Ian Molloy

Barrister

Insurance, Torts and Personal Injuries

Medaing v Ramu Nico Management (MCC) Limited (SC 22 December 2011)
Appeal – cross-appeal – refusal of quia temet injunction - discretionary judgment – principles – making of declarations not sought in pleadings or submissions – public and private nuisance – elements of causes of action –Constitution - justiciability of National Goals and Directive Principles – appeal dismissed – cross-appeal allowed.

Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) PGNC 95
Torts – nuisance – whether action for common law tort of nuisance excluded by Environment Act 2000 – standing of plaintiffs  – whether anticipated effect of first defendant’s activity amounts to a nuisance – whether defence of statutory authorisation applies -  whether first defendant’s proposed activity would be unlawful under the Act.  Constitution – National Goals and Directive Principles – National Goal No 4 (natural resources and environment) – justiciability  – whether National Court authorised to make orders regarding proposed activities that are contrary to a National Goal under Constitution Sections 23 (sanctions) or 25 (implementation of the National Goals and Directive Principles). Quia timet injunction – permanent injunction – considerations to take into account in exercise of discretion whether to grant relief sought – injunction refused.

National Fisheries Authority v New Britain Resource Development Ltd (2011) PGSC 32
Supreme Court - practice and procedure – Order 7 Rule 53 Supreme Court Rules – Application to dismiss appeal for want of prosecution – Delay in settling index – failure to take further steps after settlement of index.

Mudalige v Rabaul Shipping Ltd (2011) PGSC 34
Defamation – defences – fair comment – truth – qualified privilege: publication made in good faith for the public benefit – Defamation Act Ch No 293, section 9 (1)(b), section 10, section 11(1)(h).

Medaing v Ramu Nico Management (MCC) Ltd [2010] PGNC 175 N4158
Practice and procedure – application by plaintiff to add plaintiffs – National Court Rules, Order 5, Rule 8.

Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 144 N4142
Practice and procedure – application by plaintiffs for leave to discontinue proceedings – National Court Rules, Order 8, Rule 61.

Tarsie v Ramu Nico (MCC) Ltd [2010] PGNC 143 N4141
Practice and procedure – application by a person to be added as a plaintiff to proceedings already commenced – National Court Rules, Order 5, Rules 2, 8, 11, 13.

Medaing v Ramu Nico Management (MCC) Ltd [2010] PGNC 149 N4127
Interim injunctions – interim order sought to prevent preparatory or construction work on tailings placement system for a mine - serious questions to be tried - undertaking as to damages - whether damages an inadequate remedy - balance of convenience - in the   interests of justice to restrain operation (but not construction).

Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 134 N4122
Practice and procedure – discovery and inspection of documents – National Court Rules, Order 9, Rules 10 and 15 – whether the court should order defendants to produce documents for inspection.

Ramu Nico Management (MCC) Ltd v Tarsie [2010] PGSC 22 SC1075
Appeal from interim injunction preventing construction of nickel mine undersea tailings disposal system – Environment Act 2000 – standing – whether serious questions raised in relation to the law of nuisance  - whether serious environmental damage will be caused – whether trial judge erred in exercise of discretion.

Ramu Nico Management (MCC) Ltd v Tarsie [2010] PGSC 5 SC1056
Appeal – competency  - whether leave required to appeal against an order refusing to set aside an interlocutory injunction – Supreme Court Act –  statutory interpretation - purposive approach to interpretation. 

Kara  v Public Curator of PNG (2010) N4055
Security for Costs - Order 14 Rule 25 National Court Rules - consideration of evidence requirements - whether claims are statute barred pursuant to ss. 16 (1) (a) and 19 (1) Frauds and Limitations Act.

Kara v Public Curator of PNG (2010) N4048
Claims By and Against the State Act s. 5 - notice of intention to make a claim against the State - whether notice required to be given for a claim made pursuant to s. 36 Public Curator Act.

Tarsie v Ramu Nico (MCC) Ltd [2010] PGNC 157 N4005
Practice and procedure – separate questions – National Court Rules.

Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 77 N3987
Interim injunctions – application to set aside – considerations to take into account - National Court has power under the Constitution, ss163(2), 155(3)(a) and 155(4), and the National Court Rules, Order 8, rule 8(4) to set aside its own interim orders.

Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 76 N3986
Orders in nature of interim injunctions – motion seeking clarification of effect of previous order - declaration being a clarification, not a variation of the existing order.

MAPS Tuna Ltd v Cummins Engine Company Pty Ltd WS 553/02 (3 March 2010)
Negligence – breach of contract – maintenance of marine engine –  duty of person exercising trade of calling - causation – pleadings - evidence – claim dismissed.

Tigam Malewo v Keith Faulkner [2009] PGSC 3 SC960
Proper mode of commencement of proceedings in the National Court – whether originating summons disclosed a reasonable cause of action – whether proceedings were frivolous, vexatious or an abuse of process – requirements for commencement of representative actions.

Westcott v MVIL [2008] PGNC 207 N3565
Negligence – liability – motorbike with pillion passenger – collision with a truck – whether plaintiff is contributorily negligent - evidence – conviction in lower court – admissibility of court records an issue – ss.45, 47 of Evidence Act chapter - damages – leg injury – compound fracture of right femur, right tibia and fibula – fracture of right hand – permanent disabilities and scarring to right thigh, knee, calf and 1cm shortening of leg – osteoarthritis  – maximum liability – other defendants to pay excess – s.49(2)(a)(i); s.54(1)(5) of Motor Vehicles (Third Party) Insurance Act Chapter 295.

Tigam Malewo v Keith Faulkner [2007] PGNC 150 N3357
Practice and procedure - originating summons - seeks numerous declarations - disputed facts apparent - incorrect made of proceedings - o. 4 r. 2 - o. 4 r. 3(2) of National Court Rules - representative action - originating summons - lack of indorsement - lack of written authorities - lack of cause of action - o.4 r. 20 - o. 5 r. 13 of National Court Rules.

Moresby Claim Adjustment Partners Ltd v Wyatt Gallagher Basset [2003] SC714
Appeal – defamation – letter to Insurance Commissioner making false allegations – whether publication – qualified protection under Section 11 of the Defamation Act – Whether statements made in good faith – damages for actual loss and loss of goodwill.

PNG Aviation Services Pty Ltd v Michael Somare [1997] PNGLR 515
Defamation – Defamation Act – defence of privilege and or qualified privilege – claim of malice and or lack of good faith. Damages.

Davis v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 571
Personal injuries – whiplash injury – continuing employment – male aged 53 years – motor mechanic /fleet manager – heads of damage.

Graeme Rundle v Motor Vehicles Insurance (PNG) Trust (No. 3)
[1988-1989] PNGLR 618

Negligence – road accident – disabled vehicle under tow – driver of towing vehicle negligent. Measure of damages – personal injuries – welder – male aged 27 (34 at trial) – heads of damage.

Motor Vehicles Insurance (PNG) Trust v Reading [1988-1989] PNGLR 608
Measure of damages – personal injuries – motor vehicle accident – limited liability of defendant for damages – no limit on interest and costs.

Colbert v Independent State of Papua New Guinea [1988-1989] PNGLR 590
Employer’s liability for injury to employee – risk of intentional injury from third party – employer providing residence in connection with employment - employee stoned by intruder – employer liable. Measure of damages – sickness benefits – invalid pension – payment under Australian law – to be disregarded Social Security Act 1947 (Cth).

Arawe Logging Pty Ltd v Independent State of Papua New Guinea
[1988-1989] PNGLR 216

Practice and procedure – declaratory relief – claim against State –
Appropriate parties – proper defendant State rather than Minister.

Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNGLR 236
Appeal - personal injuries – statutory limit on liability – damages limited to k100,000 – damages not including interest or costs – Motor Vehicles (Third Party) Insurance Act (Ch No 295) – Judicial Proceedings (Interest on Debts and Damages) Act.

Reading v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 266
Damages – personal injuries – permanent brain damage – shunt dependent – unemployable – female aged five months (10 years at trial). Award exceeding limit of liability – no limit on liability for interest and costs.

Graeme Rundle v Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20
Appeal - notice to Motor Vehicles Insurance (PNG) Trust – application for extension of time – to whom and how made – extension within discretion of court – exercise of discretion – Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(1), (6).

Bernard Coady v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 55
Appeal – measure of damages – personal injuries – loss of earning capacity – infant plaintiff – relevant principles – need for real or substantial risk of restriction on employment.

Graeme Rundle Motor v Vehicles Insurance (PNG) Trust (No. 2)
[1987] PNGLR 44

Statutes – interpretation – to resolve ambiguity – use of parliamentary debates – where will determine mischief to be remedied. Notice to Insurance Trust – period extended by Commissioner – extension not complied with – application to court for extension competent.

Graeme Rundle v Motor Vehicles Insurance (PNG) Trust (No. 1)
[1986] PNGLR 181

Notice to Motor Vehicles Insurance (PNG) Trust – no action unless notice within six months of accident – extension of period by Commissioner – second extension not permitted – Motor Vehicles (Third Party Insurance) Act, s 54(6).

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Bernard Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450
Personal injuries – head and facial injuries – scarring – child aged four and a half.
Costs – departing from general rule – powers of court – payment into court – judgment for less than amount paid in.

Anton Johan Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Personal injuries – loss of earning capacity – future loss – notional tax – inflation – proper discount rate 3 per cent. Interest on award – award compensatory – appropriate rate – date from which to be calculated – principles to be applied – Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s1.

Costello v Talair Pty Ltd [1985] PNGLR 61
Damages – burns – lacerations – chest and shoulder injuries – traumatic amputation of ear – scarring – fear of flying – male aged fifty-seven – statutory limit on amount “for damage sustained” – not including interest or costs – Civil Aviation (Aircraft Operators’ Liability) Act.

Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365
Damages – fracture of mid shaft of femur – pinning and bone grant –Anglican priest aged forty (forty-six at trial) – forced early retirement at forty-nine – economic loss commencing three years after trial – discount factor – appropriate rate five per cent.

Motor Vehicles Insurance (PNG) Trust v Lucian Vevehupa [1984] PNGLR 224
Damages – medical and hospital care – hospital treatment in Australia – treatment provided by Repatriation Commission – liability to pay – cost of recoverable in action – Repatriation Act 1920 (Cth).

Anton John Pinzger v Bougainville Copper Limited [1983] PNGLR 436
Personal injuries – particular awards of general damages – lumbar disc injury – conservative treatment – continuing pain – fit only for light work – male tunnel foreman in mining industry aged 36 – difficulty in finding employment in Australia.

Lucian Vevehupa v Motor Vehicles Insurance (PNG) Trust [1983] PNGLR 343
Personal injuries – medical and hospital care – motor vehicle accident – hospital treatment in Australia – treatment under Repatriation Act 1920 (Cth) – treatment not free treatment – damages – currency in which to be awarded.

Koko Kopele v Motor Vehicles Insurance (PNG) Trust [1983] PNGLR 223
Negligence – contributory negligence – passenger on overcrowded truck – reckless and grave risk – contribution assessed at 70 per cent. Damages – personal injuries – economic loss – calculation of present value of future economic loss.

Hugh James Hassard v Bougainville Copper Limited [1981] PNGLR 182
Damages – personal injuries – economic loss – calculation of present value of future economic loss – actuarial method preferred – inflation not relevant to assessment – inflation relevant to interest discount rate – notional tax nil.

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John Cybula v Nings Agencies Pty Ltd [1981] PNGLR 120
Award of interest – damages for personal injuries – discretionary power to award – method of calculation – apportionment of award for pre-judgment non-economic loss – interest allowable at ordinary commercial rates.

Motor Vehicles Insurance (PNG) Trust v Payne [1981] PNGLR 114
Insurance – third party liability – government vehicle – identification of – not necessary to specify which particular vehicle – not “uninsured motor vehicle” – not vehicle “identity of which cannot be established”.

Robert Brown v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 409
Negligence – duty of care – injuries to passenger – standard of skilled, experienced and sober driver – passenger’s knowledge of driver’s incapacity not relevant to standard of care –– contributory negligence.

Ronald Emanuel Jordan v Glen Hamilton Edwards [1979] PNGLR 420
Appeal - costs – taxation of costs – particular items – counsel’s fees – second or overseas counsel – relevant considerations – Supreme Court Rules 1977, 0. XCI, r.81A.

Edwards v Jordan Lighting [1978] PNGLR 273
Workers’ compensation legislation – time limitation – liability of master for injury to servant – common law liability – safe system of work – duty of employer to devise institute and maintain safe system of work – damages - male electrician aged 26.

John Cybula v Nings Agencies Pty Limited [1978] PNGLR 166
Discovery and interrogatories – interrogatories – answers – sufficiency – motor vehicle accident – admission by defendant company that its vehicle involved in accident – interrogatories directed to identity of defendant’s driver and terms of employment deemed proper.

Robert Tozer v Independent State of Papua New Guinea
[1978] PNGLR 150

Parties – joinder of plaintiff – principles generally – power discretionary – action for negligence – whether driver of one vehicle may be joined with driver of another – whether “same transaction or series of transactions” – National Court Rules.

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Liability limited by a scheme approved under professional standards legislation.
© Copyright I Molloy 2010