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Umbe and Ngants Kopi v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 67; N1574 (30 May 1997)

Unreported National Court Decisions

N1574

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. NO. 867 OF 1994 & WS NO. 868 OF 1994
BETWEEN
PARE UMBE - Plaintiff
WS NO. 867/94
BETWEEN
NGANTS KOPI - Plaintiff
WS NO. 868/94
And
MOTOR VEHICLES INSURANCE (PNG) TRUST - Defendant

Mount Hagen

Injia J
9 May 1996
31 September 1996
30 May 1997

PRACTICE AND PROCEDURE - Damages Claim - Against Motor Vehicles Insurance (PNG) Trust - In respect of uninsured motor vehicle - Motor vehicle owned by the State or Authority of the State - Motor vehicle owned by Provincial Government - Whether the Motor Vehicles Insurance (PNG) Trust can be sued - Motor Vehicles (Third Party) Insurance Act (Ch. No. 295) S. 1, S. 54 (1).

Cases Cited:

No cases are cited in the judgment.

Counsel:

P Kopunye for the Plaintiffs

A Kandakasi for the Defendant

30 May 1997

INJIA J: The two Plaintiffs’ claims arise out of the same motor vehicle accident. As the two claims were tried together, I deliver a joint judgment.

The action is taken against the Defendant under provisions of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295) (hereinafter referred to as the “Act”). The Plaintiffs in their respective Statement of Claim which is endorsed in their respective Writs claim that they sustained injuries in a motor vehicle accident which occurred on 5 November 1992 at about 5.00 pm on the Minj - Minj river bridge road. The Plaintiffs claim they were both passengers seated in the motor vehicle Reg. No. PAA 251 “which was owned by the Engineering Division of the Department of Western Highlands Provincial Government or alternatively the said motor vehicle uninsured with the Defendant” (Statement of Claim, para. 3).

In their defence, the Defendant (the “Trust) denied these claims of the Plaintiffs (para. 3 of Defence). The onus therefore is on the Plaintiffs to prove that the subject motor vehicle was insured or uninsured with the Defendant within the meaning of S. 54 (1) (a) & (b) of the Act in order to bring an action against the Trust.

The Plaintiffs claim that one Kuma Ngants was so negligent in the driving of the motor vehicle that it crashed and overturned. Particulars of negligence include failure to keep any lookout, driving at excessive speed, and unlicensed driving. As a result of the crash, the Plaintiffs suffered injuries to various parts of their bodies (para. 7 - 8 of Statement of Claim). The Defendant denies these claims (para. 7 - 8 of the Defence) and allege that the injuries were caused by or contributed to by the Plaintiffs’ own negligence, particulars of which are given (para. 9 of Defence). The Defendant also pleads voluntarily assumption of risk on the part of the Plaintiffs as a defence (para. 10 of Defence).

On 12 April 1996, the two Writs were amended pursuant to order of the Court, to include particulars of economic loss and the relief claimed (para. 11 - 12 of Amended Writ). No amendments was sought by the Plaintiffs in respect of para. 3 of the Statement of Claim in respect of both claims.

At the trial, both parties produced or adduced oral and/or documentary evidence in support of their respective cases and filed written submissions.

I need to deal first with the threshold issue raised by the Defendant as to whether it (the Trust) is a proper party to these proceedings.

Section 54 (1) provides for three situations in which action against the Trust is to be brought. An action must be brought against the Trust in respect of:

1. A motor vehicle insured under the Act.

2. An uninsured motor vehicles driven in a public street.

3. An unidentified motor vehicle driven on a public street.

Section 54 (1) specifically mandates that such action “shall be made against the Trust”.

Section 1 defines an “uninsured motor vehicle” as not to include, inter alia, “the property of the State or of any authority of the Government”.

For easy reference, I reproduce these two statutory provisions in full below.

Section 54 (1) provides:

“(1) Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or rising out of the use of:

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the Trust 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 Trust and not against the owner or driver of the motor vehicle.”

Section 1 provides:

“‘uninsured motor vehicle’ means a motor vehicle (including a trailer) that is not an insured motor vehicle, but does not include a motor vehicle that is:

(a) the property of the State or of any authority of the Government; or

(b) the property of the Government of Australia or of any authority of the Government of Australia; or

(c) in respect of which persons are exempted by or under this Act from the provisions of Section 48.” (underlining is mine)

The Plaintiffs’ claims as pleaded in para. 3 of the Statement of Claim and repeated in para. 3 of the Amended Statement of Claim is that the vehicle was owned by the Engineering Division of the Western Highlands Provincial Government and registered. The registration number is “PAA 251”. This registration number, by the use of the word “P” shows that the vehicle is a Provincial Government vehicle. A “Provincial Government” no doubt is an authority of the Government or a part of the State. Therefore, a motor vehicle owned by the Provincial Government comes within the meaning of “uninsured motor vehicle” in S. 1. The Trust cannot be sued for a vehicle owned by the State or an authority of the Government, as in this case, the Western Highlands Provincial government, because its vehicles are not insured with the Trust. The State-owned motor vehicles are normally self-insured.

There is some evidence of the subject motor vehicle in this case being insured with the Trust. The evidence is in the form of particulars provided in two Police Accident Reports in respect of the same accident, both compiled by Constable Kolum. On the one produced by Const. Kolum and annexed to his affidavit, the policy number is given as 0088642. In the one tendered by the Defendant, the policy number is given as 0088624. The Plaintiffs have not produced a copy of the Third party Insurance Certificate if any, issued under the Act to rectify or verify the conflicting policy numbers. The Plaintiffs’ lawyer, through his written submissions, advances his clients’ claim on the basis that the subject motor vehicle was insured by the Trust but this is a misconception. In my view, there is no legal basis and evidence to support this submission. I find that the subject motor vehicle was owned by the Western Highlands Provincial Government and uninsured with the Defendant as correctly pleaded in the Writ of Summons. Under S. 54 and S. 1 of the Act, the Trust cannot be sued in respect of the subject motor vehicle. The Trust has been wrongly sued.

For these reasons, I dismiss the Plaintiffs’ claim with costs to the Defendant. Having arrived at this conclusion, I think it is not necessary to proceed further to consider the remaining evidence and submissions and decide the issue of liability and quantum on those basis.

Lawyer for the Plaintiffs: Kopunye Lawyers

Lawyer for the Defendant: Young & William Lawyers