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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 278 OF 2004
BETWEEN:
MOTOR VEHICLES INSURANCE LIMITED
Plaintiff
AND:
ESTATE OF PROSE MANUS OVE BY HIS NEXT FRIEND AND PERSONAL REPRESENTATIVE MANU OVE
First Respondent
AND:
ALLAN KOPI, THE ASSESSMENT OFFICER
Second Respondent
Waigani: Nablu, AJ
2014: 24th September
2015: 4th September
JUDICIAL REVIEW – Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Act – Public Policy – Deceased's relatives should not benefit from deceased's criminal conduct – Undue delay – Appropriateness of the relief sought Order – Certiorari refused.
Cases cited:
Papua New Guinea Cases
Konia v. Dosinga (1989) PNGNC 17
Kopuri Tapie v. Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 78
Limitopa v. The State [1988-89] PNGLR 364
Lipai & Others v. Motor Vehicle Insurance (PNG) Limited [1996] PNGLR 363
Mision Asiki v. Manasupe Zurenouc (2005) SC 797
Ombudsman Commission v. Peter Yama (2004) SC 747
State v. Samson [2007] N4994
The State v. Paul Loi (2009) N4058
Overseas Cases
Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1KB 233
Counsels:
E. Suelip and G. Kogora, for the plaintiff
T. Ilaisa, for the first defendant
M. Mai, for the second defendant
4th September, 2015
1. NABLU, AJ: The Motor Vehicles Insurance Limited (MVIL) was granted leave on 15th June 2006 to review the decision of the Assessment Officer pursuant to an application made under Order 16 Rule 5(1) of the National Court Rules (NCR).The Assessment Officer on 24th December 2002 ordered the plaintiff to pay the first defendant, the father of Prose Manus Ove (the deceased), the sum of K2500.00 as basic compensation under the Motor Vehicles (Third Party Insurance)(Basic Protection Compensation) Act.
2. The facts of this case are not much in dispute; in my view the critical legal issue is the construction given to the relevant provisions of the Motor Vehicle (Third Party Insurance)(Basic Protection Compensation) Act.
3. The facts of the case are contained in the affidavit of Robert Doko, sworn on 26th May 2004 and filed on 28th May 2004. This affidavit annexes copies of the Police Investigation Report and other evidence. I have summarized the facts as follows.
4. On 13th September 2002, Prose Manus Ove (the deceased) was a passenger in a Nissan Patrol Station Wagon registered to Justice Sheehan that crashed into a coconut tree at Idubada, Mobil Depot, Kanudi, Port Moresby. Prose Ove was found dead at the scene of the accident. The vehicle was driven without lawful authority by an unlicensed driver, namely Martin Iamo Richard, who was subsequently charged for dangerous driving causing death. However, it is unclear from the evidence, whether he was actually prosecuted for the offence. From the Police record of interview, the driver, stated that, he knew that it was a stolen vehicle, but denied he was involved in its theft. Nevertheless, he admitted that he drove the vehicle with the intention of hiding it when the accident happened.
5. The plaintiff has not clearly pleaded the grounds of review in the Statement in Support filed under Order 16 Rule 3 of the NCR.
6. However, the Statement in Support appears to contain two (2) main grounds of review. The first ground of review is that the Assessment Officer's decision to order the payment of compensation was made contrary to public policy in that the deceased had met his fate whilst being involved in a criminal activity, and therefore, his family should not be benefiting from his death. The second ground of review is that the learned Magistrate exceeded his jurisdiction when ordering compensation because the decision was made on 24th December 2002, some three (3) months after the death which is contrary to the Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Act.
7. According to the Statement of Agreed and Disputed Facts, there are seven legal issues for the Court to determine, they are;
8. The decision which is the subject of this review was made pursuant to the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act, Chapter 296 (BPC Act).
9. It is necessary for me to set out the relevant provisions of the Act starting with the preamble.
10. The preamble of the Act provides;
[A]n Act to provide for the speedy payment of a limited amount of compensation to the dependants of persons whose deaths are directly or indirectly attributable to the use of motor vehicles, without regard to any concept of negligence, and for related purposes.
11. Section 3 of the Act provides:
This Act does not apply to or in relation to the death of a person that is directly or indirectly attributable to personal injury suffered by him as a result of a motor vehicle accident where the death occurred more than 90 days after the incident.
12. A magistrate of the District Court and a coroner, by virtue of their respective powers are assessment officers for the purposes of the Act (Section 6). The applicable test that an assessment officer should apply before making an order for compensation under Section 15 of the Act, is that the death"is directly or indirectly attributable to the use of a motor vehicle".
13. If this test is satisfied, then the next thing the assessment officer should determine is who is entitled to receive compensation under s.16 of the Act.
14. Under s.17, compensation is payable to either the dependant's wife or children and in other cases, to the head of the deceased's immediate customary kinship group (as the agent for all members of that group).
15. The compensation payable to the deceased's wife or child is limited to an amount not exceeding K5000. In cases, where compensation is payable to the customary kinship group, the amount should not exceed K2500.
16. An award under this Act is an order for the payment of a sum of money under the District Court Act. Therefore, it is for all purposes, enforceable as a Court Order.
Ground One of Review
17. The plaintiff argues that the second defendant committed an error of law because the decision was made contrary to public policy. Ms Suelip of counsel for the plaintiff submitted that the deceased was intoxicated and was a passenger in a stolen vehicle. This claim is supported by the Police Accident Report and the record of interview conducted with the driver, Martin Iamo Richard.
18. Counsel for the plaintiff submitted that the deceased was an occupant of a stolen vehicle and therefore was involved in the unlawful use of a motor vehicle. Counsel referred to the case of The State v. Samson [2007] N4994 to support this contention. I am of the view, that this case is irrelevant, it does not apply to the issues before the Court. That case related to the sentence in a criminal case. The accused pleaded guilty to the charge of unlawful use of a motor vehicle. In the present case, the pertinent legal issue is whether the compensation ordered is contrary to public policy.
19. In regard to the public policy argument, the plaintiff stressed the point that the deceased was involved in an unlawful use of a motor vehicle. Counsel referred to the case of The State v. Paul Loi (2009) N4058 to support the contention that compensation payments to witnesses which may result in them refraining from giving evidence is contrary to public policy. It was submitted that if the compensation is paid to the deceased relatives they would be benefiting from the illegal and criminal conduct of the deceased which would also be against public policy.
20. Mr Ilaisa of counsel for the first defendant conceded that the deceased was involved in an illegal activity which led to his death. However, he submitted that there is no provision in the Act that expressly precludes claims where the death is attributable to the illegal use of the motor vehicle. He submitted further that whether the deceased was intoxicated or not, is immaterial. It was submitted that the scheme of the Act to provide for a "no –fault" system of compensation, and whether the deceased was intoxicated is irrelevant, such issue is relevant when the issue of contributory negligence arises and if a claim was made under the Motor Vehicles (Third Party Insurance) Act.
21. To support this contention, Mr Ilaisa referred the Court to the statement of Los, J in the case of Konia v. Dosinga [1989] PNGNC 17. At page 7; his Honour said:
"I think that compensation based upon no fault system can only be legitimate on the basis of mere loss of life itself. For any death there is a loss of life irrespective of whose fault it is. The notion has already found its way into various statutes, for example Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Act Chap. No. 296. The preamble of the Act speaks for itself:
... for the speedy payment of limited amount of compensation to the dependants of persons whose deaths are directly or indirectly attributable to the use of motor vehicles, without regard to any concept of negligence, and for related purposes." (my emphasis)
22. Ms Mai of counsel for the second defendant submitted that there was no evidence that the second defendant committed an error when ordering compensation under the Act. She submitted further that the plaintiff has also committed an offence for failing to pay the award within seven (7) days as provided under s.7 of the Act.
23. Ms Mai also submitted that, even though they conceded that compensation should not be paid to the deceased's relatives, because the deceased met his fate whilst being involved in an illegal activity, there was no evidence of error in the subject decision.The decision was made in good faith, and therefore should not be quashed.
24. As stated earlier, the pertinent issue is whether the first defendant is entitled to compensation under the Act.
25. It is not disputed that the deceased was involved in an illegal and criminal activity when he met his fate. He was a passenger in a stolen vehicle; the deceased did not have authority to be a passenger in the vehicle. Thus, there is no need for consideration of issues 2 and 4 above.
26. Issues 5 and 6 are basically asking the same question that is, whether it is against public policy for the first defendant to benefit from an illegal and criminal activity.
27. Section 15 of the Act states that an assessment officer having been satisfied that the death of a person was directly or indirectly attributable to the use of a motor vehicle, shall determine who is entitled to compensation under s.16 of the Act.
28. The critical issue here, is the interpretation of s.15 of the Act.
29. In the case of Kopuri Tapie v. Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 78, when McDermott, J was considering whether there was a conflict between the provisions of the Act relating to the payment of compensation to infants and the powers of the National Court of parens patriae at page 79, made following remarks:
"The problem arises from the operation of the Motor Vehicle (Third Party Insurance)(Basic Protection Compensation) Act (Ch No. 296) (the Compensation Act). Although this Act was passed in 1974 this appears to be the first time that an apparent conflict between the parens patriae powers of the court and the powers of an assessment officer under that Act has risen. The whole scheme of the Compensation Act is to provide a limited form of no fault liability payments to certain defendants and clan members of persons killed in a motor vehicle accident. Whilst that is the effect of the legislation its purpose, if my memory of its introduction is correct, was to cool down tempers, particularly in highland areas, following a motor vehicle caused death in the clan. A quick payment of money was to bring this about. The right of these dependants to sue for damages according to law remained, subject to a subsequent reduction in the amount of damages so recovered, by the amount of any prior award made under the Compensation Act." (emphasis mine)
30. Research of the case law appears to reveal that there are no case authorities directly on this point.
31. When a Court is tasked with the interpretation of a legislative provision, it is mandatory that regard must be had, to the intent, meaning and spirit of the legislation pursuant to s.109(4) of the Constitution.
32. The initial inquiry should be made by first establishing what the object and purpose of the legislation is, and ascertain the harm or mischief that Parliament wanted to safeguard.
33. According to the Parliament Hansard of 22 April 1974, Mr Julius Chan, (as he then was), Member for Namatanai and Minister for Finance said in the Second Reading of the Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Bill, the bill was "... designed to speed up the payment of compensation for road deaths and should go a long way to reducing the likelihood of 'pay-back' trouble arising out of road accidents. It therefore has the strong support of those departments most concerned with maintaining law and order. The main effect of this Bill is that where a death results from a motor traffic accident, an inquiry will be conducted promptly by a district court magistrate, coroner or assessment officer. This official, on determining that a death has been caused directly or indirectly by a motor vehicle, will award limited basic compensation to be paid immediately by the licensed insurer of that vehicle, or, in the case of an uninsured or unidentified vehicle, by the nominal defendant. Such awards will be made and will be payable without taking into account the questions of possible negligence.
... Since the legal concept of negligence is not generally understood or accepted by the people of this country, who believe that compensation should be automatically forthcoming whatever the circumstances that led to the death, the proposed new scheme appears more suitable for Papua New Guinea.
... In order to avoid any misunderstanding, I must point out that the only reason for this Bill is to provide basic protection and prompt compensation for the dependants of road accident victims.
... There will be no longer any justification – if there ever was – for the survivors of victims to take the law into their own hands. The Government, by introducing this Bill, is taking action to bring the law into line with the views of the people. The people must respond by respecting the law."
34. From the above statement, it would appear that Parliament's intention was to provide a form of basic compensation to the deceased person's dependants whose death was as a result of a motor vehicle accident. The payment of money was to be made without consideration of the legal concept of negligence or who was at fault. The harm or mischief Parliament intended to prevent, was the likelihood of pay-back which may have been instigated by the deceased's relatives as a result of the fatal road accident.
35. Looking at the terms of the Preamble of the Act, it is clear that the scheme of the Act is to cater for a limited amount of compensation to be made to the deceased's family and relatives whose death is directly or indirectly related to the use of a motor vehicle.
36. The compensation is to ensure that peace and good order is maintained in the community especially with the relatives of the deceased.
37. I find that the first defendant was entitled to make a claim under the Act. His son was an occupant of a motor vehicle whose death was directly attributed to the use of a motor vehicle.
38. However, I am not convinced that the assessment officers' decision was reasonable. The common law principle of unreasonableness which developed since Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1KB 233 was adopted in the case of Ombudsman Commission v. Peter Yama (2004) SC 747. The principle stands for the proposition that the decision under review should not be one were no reasonable tribunal could reach. In this case, the deceased was conducting an illegal activity and he did so at his own detriment. It would be against public policy and the interests of justice for his family to benefit from his death. The Act allows for compensation in order to ensure peace in the community and an aid to reduce the threat of any pay back by the deceased's relatives. With respect, I find that the second defendant's decision to order compensation was unreasonable and against public policy because the deceased met his fate when carrying out a criminal and illegal activity.
39. Consequently, I find that the plaintiff has made out ground one of the review.
Ground Two of the Review
40. The plaintiff through counsel submitted that the payments under the Act are required to be made within three (3) months. In this case, the payment was made after the ninety (90) days time limit stipulated under s.3 of the Act. Therefore the decision to order compensation was ultra vires.
41. The death occurred on 13th September 2002 and the award was made on 24 December 2002, outside of the ninety (90) day time limit. Counsel referred to the cases of Lipai & Others v. Motor Vehicle Insurance (PNG) Limited [1996] PNGNC 86 and Limitopa v. The State [1989] PNGNC 61 in support of the contention that where statutory time limits are not complied with, the claim is statute barred.
42. It was submitted that the award was made contrary to the purpose and intent of the Act
43. Mr Ilaisa submitted that the main issue is the interpretation of Section 3 of the Act. He submitted that the plaintiff had misconstrued, s.3 of the Act. He further submitted that the proper construction of s.3, is that it precludes payment of compensation where the deceased died after ninety (90) days following the accident. He submitted that this section is applicable to situations where the deceased sustained personal injury which was either directly or indirectly attributable to the use of a motor vehicle, and he died ninety (90) days later. In such situations, the deceased relatives would not be entitled to compensation under the Act.
44. Ms Mai submitted that the second defendant did not commit any procedural error and that the decision was made in accordance within the requirements of the Act.
45. Section 3 does not state a time limit in which a claim can be brought under the Act.
46. The Act does not apply to deaths which occurred 90 days after a motor vehicle accident, where the deceased suffered from personal injury.
47. It is clear that the provision expressly refers to situations, where a person suffers personal injury from a motor vehicle accident, but then dies after 90 days. I accept the submissions by the counsel for the first defendant as the correct interpretation of that provision.
48. In the present case, the fact that the award was made outside the ninety (90) days is immaterial. It is not statute barred. The deceased died instantly or at the scene of the accident on that date.
49. Therefore the plaintiff has not made out this ground of review. I dismiss this ground of review.
50. Judicial Review procedure is a two-fold process. The first step is to consider whether the grounds of review have been proven. Following that, the applicant makes a case for the relief (Mision Asiki v. Manasupe Zurenouc (2005) SC 797). Having made out one ground of review, the next step is for the Court to consider whether the relief sought should be granted.
51. The plaintiff only seeks one primary relief and that is an order to quash the decision.
52. Order 16 Rule 4(1) of the National Court Rules is clear, that the Court has the discretion to refuse relief of certiorari where there is undue delay.
53. The decision which is subject of review was made on 24 December 2002. The originating summons was filed in May 2004. Leave to apply for judicial review was granted 15th June 2006, four (4) years after the date the decision was made. The Review Book for this matter was filed on 28th May 2014 and the hearing was conducted in September 2014. From the time the decision was made to the time of hearing there was a delay of 12 years. In my view the delay is inordinate and undue.
54. In regard to costs, the general rule is that costs follow the event. Having made out one ground of review, the plaintiff is entitled to their costs, however, I am of the view that the defendants' should not pay for the plaintiff's costs. This action was initiated by the plaintiff. They filed the action in May 2004. There was no activity on the file until April 2006. They then sought and were granted leave in June 2006. Issues as to delay should have been raised at the leave stage, because the substantive orders they sought were in the nature of certiorari, clearly the application was filed outside of the four (4) month time requirement.
55. From the file endorsements, the matter was listed for mention and directions hearings in 2009, and 2010, in those times the matter was listed, either one of the party's counsel were not in attendance, making it difficult to progress the matter. It was not until 2013, that directions were issued and the matter progressed to a hearing in September 2014.
56. I am of the view that the defendant's should not have to pay for the long delay in prosecuting this matter. Furthermore, the first defendant is now left in a situation where he is statute-barred from enforcing the Compensation Order.
57. The long delay is a crucial factor in deciding not to grant certiorari. Both parties will be prejudiced because, the first defendant's right to enforce the Order has also lapsed; Section 16 (5) of the Statute of Fraud and Limitations Act. Notwithstanding that, in the interest of justice, declaratory orders should be made for avoidance of doubt.
58. I refuse to grant the relief sought. Furthermore, the Basic Compensation Order is a Court Order which now, given the lapse of time cannot be enforced by the first defendant (Section 16(5) of Fraud and Limitation Act).
59. For the foregoing reasons, the plaintiff's application for judicial review is granted. It will be declared that the decision of the second respondent is null and void, against public policy and contrary to the interests of justice. The relief of certiorari is also refused due to the inordinate delay. There is no satisfactory reasons by the plaintiff for failing to prosecute the application for judicial review within a reasonable time. Each party will be ordered to pay their own costs.
Court Order
________________________________________________________________
Mirupasi Lawyers: Lawyers for the Plaintiff
Public Solicitors: Lawyers for the First Defendant
Solicitor General: Lawyers for the Second Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2015/165.html