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Kiak v Tora Enterprises Pty Ltd and Motor Vehicles Insurance (PNG) Trust [1986] PGLawRp 371; [1986] PNGLR 265 (24 December 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 265 - George Kiak v Tora Enterprises Pty Ltd and MVIT�

[1986] PNGLR 265

N570

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GEORGE KIAK

V

TORA ENTERPRISES PTY LIMITED AND THE MOTOR VEHICLES INSURANCE (PNG) TRUST

Goroka & Waigani

McDermott AJ

27-28 November 1986

24 December 1986

INSURANCE - Third party liability insurance - Compulsory motor vehicle insurance legislation - Injury to owner/driver - Whether claim for bodily injury to �any person� - �Liability� to �indemnity� - Liability to another person - Indemnity for benefit of another person - Owner/driver not to be indemnified for own injuries - Motor Vehicles (Third Party Insurance) Act (Ch No 295), ss 48, 49, 54.

STATUTES - Interpretation - Contextual interpretation - �Indemnity� - �Liability� - �Any person� - Motor Vehicles (Third Party Insurance) Act (Ch No 295), ss 48, 49, 54.

DAMAGES - Personal injuries - Particular awards of general damages - Leg injury - Severe compound fractures of lower leg - Severe scarring - Permanent disability of about 50 per cent - Limp - Built up shoe - Calipher worn - Male - Grade 1 magistrate aged thirty-five - Award of K29,000 general damages.

The plaintiff, a grade 1 magistrate aged thirty-five years claimed damages for personal injuries caused when driving a motor vehicle in which the transfer case broke away from the universal joint assembly for the front propellor shaft, burst through the cabin floor and penetrated his leg causing a severe compound fracture to the lower third of the left fibula and tibia involving substantial skin loss with damage to the muscles, arteries and veins. The plaintiff underwent eight operations with the leg being saved from amputation but he suffers a permanent disability of about 50 per cent with severe scarring and a prognosis for arthritis and arthrodesis of the ankle joint; he is required to wear a built up shoe and calipher and walks with a stick and a limp.

The Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(1), provides that any claim for damages �in respect of the bodily injury to any person caused by, or arising out of the use of (a) a motor vehicle insured under this Act; ... shall be made against the Trust ...�, and s 49 provides that �the owner of a motor vehicle must at all times ... indemnify himself and keep himself indemnified with the Trust against any sum for which he ... may become liable by way of damages for bodily injury to a person caused by, or arising out of the use of, the motor vehicle�.

The plaintiff sued both the repairer of the vehicle and the Trust.

Held

N1>(1)����� In the circumstances, the repairer of the motor vehicle was liable for the injuries suffered.

N1>(2)����� In the Motor Vehicles (Third Party Insurance) Act (Ch No 295), when properly construed in its context of providing liability for damages awarded in motor vehicle negligence actions, and the provisions of s 49 and s 51, so construed in this context, �liability� can only mean liability to another person and �indemnity� can only be for the benefit of another person: an owner/driver cannot be indemnified for his own personal injuries.

N1>(3)����� General damages for pain and suffering and loss of amenities should be assessed at K29,000.

Cases Cited

Brewer v Incorporated Nominal Defendant [1980] VicRp 45; [1980] VR 469.

Chapman; Cocks v Chapman, Re [1895] UKLawRpCh 193; [1896] 1 Ch 323.

Cooper v Motor Insurers� Bureau [1985] QB 575.

Digby v General Accident Fire and Life Assurance Corporation [1943] AC 121.

Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283.

Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; (1960) 104 CLR 80; [1961] ALR 180; [1961] SR (NSW) 410; 78 WN 244.

Littlewood v George Wimpey & Co Ltd and British Overseas Airways Corporation [1953] 2 QB 501; [1953] 3 WLR 553; [1953] 2 All ER 915.

North British & Mercantile Insurance Co Ltd v Smith [1960] VicRp 11; [1960] VR 78.

Quinn v Government Insurance Office of New South Wales [1961] SR (NSW) 491; (1959) 77 WN 186.

Riley v Insurance Commissioner (Vic) [1972] VicRp 26; [1972] VR 265.

Stewart v Sydney City Council; Government Insurance Office of New South Wales (Third Party) [1973] 1 NSWLR 444.

Vaux v Law Union & Rock Insurance Co Ltd [1961] NSWR 268; (1960) 78 WN(NSW) 588.

Statement of Claim

This was an action in which the plaintiff claimed damages for personal injuries allegedly caused by or arising out of the negligent repair of his motor vehicle which he was driving at the time when injured.

Counsel

W Neill, for the plaintiff.

M Hirst, for the first defendant.

I V Gzell QC (of the Queensland Bar) with him G Lay, for the second defendant.

Cur adv vult

24 December 1986

MCDERMOTT AJ: On 10 October 1983 the plaintiff, the owner and driver of a Toyota Hilux four wheel drive utility registered number ADD 930, suffered severe injuries when driving the vehicle along the Highlands Highway near Aviamp.

The plaintiff sues the first defendant (Tora) as the negligent repairer and servicer of the vehicle and sues the second defendant pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act (Ch No 295).

LIABILITY OF FIRST DEFENDANT

In mid July 1983 the plaintiff towed his vehicle from Liagam to Wapenamunda where Tora carried on a motor vehicle garage and workshop business. The plaintiff chose this garage because it had signs advertising repairs and panel beating work and because it was a registered company. He spoke to a Michael McKinde whom he thought was a mechanic. He detailed the work required to be done, as, gear stick (a bolt was broken and the gears could not be changed), panel beating, spray painting and a general overall service. As the plaintiff did not have the required deposit he returned on the 25 July and paid K100 as deposit. On that day, Michael completed a job card in which the �Description of Work� is as follows: �respray and repairs, full service, check all brakes and lights, fit gear speter bolt.� There was a long delay before the work was completed and the plaintiff paid the balance of K600 for the completed work on 30 September 1983. The plaintiff also obtained from the garage a �Certificate of Roadworthiness� for the purpose of registering the vehicle and additionally, insured the vehicle for third party insurance, as the garage was an agent of the Insurance Trust.

It was necessary that a new battery be fitted and this was done some days later at the same garage. From the day the vehicle was collected until the day of the accident, the plaintiff travelled approximately 700 km, the longest trip being from Liagam to Kundiawa. It was on the return journey that the injuries were sustained. I should add that the vehicle, purchased by the plaintiff in 1981, was not new then. It was possibly a 1978 or 1979 model. I do not know for how many kilometres it had been driven altogether prior to 10 October 1983.

Whilst proceeding along the highway near Minj the plaintiff said �something from the front engine broke through the cabin floor and hit my leg. It dinted my leg. I came to a stop. It was a sudden accident�. The plaintiff then became unconscious. His wife recalls that the vehicle was being driven normally, �I usually complain about speed�, and said �The only word I heard from my husband was �accident�. I looked back and then looked at him and the floor of the car�. She saw �something, an iron bar from underneath, which came through the floor and hit my husband�s leg, stuck into it�. This observation is the same as that of Nathaniel Peters who came onto the scene almost at once. He rendered immediate first aid, tying the leg above and below the injury. From the fact that the plaintiff was able to bring the vehicle to a controlled halt, I am satisfied that it was not travelling at speed and did not hit anything on the roadway.

From the evidence of the qualified mechanic, Robin Gigmai, it is clear that the transfer case broke away in the vicinity of the universal joint assembly for the front propellar shaft. Part of the transfer case remained attached to this shaft. I am satisfied that this is what burst through the cabin floor and struck the plaintiff.

The first person who inspected the vehicle was Michael Mark. He did so privately. He is a mechanic with the Department of Works and Supply at Kundiawa. He was interested to see the universal joints as there had been problems with the same vehicles owned by his employer. He did not get under the vehicle. He said the universal looked like it had seized roller bearings and broke off. Whilst it was not clear at the time of his evidence, when he said �the other part was outside on the shaft� this must refer to the transfer case. But it is clear from his indication on exhibit V � the manufacturers card on chassis lubrication, that he was speaking of the universal joint near the transfer case. His evidence is related to this area. The significance of his evidence is in relation to greasing and lubrication generally. He is familiar with exhibit V and the problems encountered if the proper grease gun is not used on the grease nipples. From his experience of a universal joint breaking off, the most common cause was greasing (ie, lack of it). He did concede that long neglect, a hairline fracture, hitting a stone or driving on a rough road could be possible causes as well. When asked what would cause the universal joint to seize he said: �Normally if it is not greased the roller bearings seize.� In his view this could take a long time but if it was properly serviced this would not be expected to happen in a vehicle used normally. The clear inference is that lack of lubrication will cause a seizure. Francis Giyopo, a qualified mechanic called by Tora was familiar with impact caused broken transfer cases.

Robin Gipmai inspected the vehicle at the behest of the plaintiff. He was asked to do so soon after the accident. He travelled from Lae to Kundiawa for this purpose and inspected the vehicle on 13 October. He made notes of his observations and these formed the basis of a written report eventually typed, signed and dated 4 November 1983 (exhibit W). The original notes were subsequently destroyed. Apart from describing what had broken, he noticed that there was no oil around the crank case housing (it is clear from the evidence that this is also the transfer case). None was seen splashed around the body of vehicle. He expected dust covered oil to be seen because the oil should have splashed about through the movement of the vehicle. Likewise, there was none inside the cabin. He saw that the universal joints had not been greased. He paid particular attention to the grease nipples. He observed no new grease just some old grease inside and not very much of it. He said that for the areas of the motor in question no special grease gun was required. He is supported generally in his evidence on the consequences of insufficient oil by Giyopo � �the case would crack as the gears would jam up�. If there was oil in the case at the time of break up, it would splash around. He was of the view that the driver would have had some indication that something was amiss, but on this Gipmai was not so sure.

In his report, Gipmai referred to finding improper bolts and washers on the four wheel drive gear lever mounting. These are not the work of Tora and do not appear to be in any way related to the accident. However he did notice �a wrong bolt, (too long) on the joint of the output shaft of the transfer case to the differential�. This is in the vicinity of the universal joint which came away with part of the transfer case. Although he thought this could �touch the propellor shaft and cause the transfer case to break-up�, he qualified the possibility: it could only occur if it touched and if a bump was hit causing the shift to rotate at an angle. This does not appear to have happened, the bolt was still in place with no damage observed. The other mechanic, Francis Giyopo, thought that the long bolt would scrape on the transfer case. In his view the bolts at this joint, and there are four of them, would have to come loose on both sides of the shaft before the case would crack through uneven running. But I am told by Gipmai that lack of grease can also cause uneveness. I have not sufficient evidence on the speter bolt (no one is able to say what it is) or on the fitting of the bolts and washers. There are two possible inferences, that it was work done prior to the Tora work or it was work done by Tora. However, I have real doubts about the effect of the long bolt and discount it as a cause.

Was any greasing and lubrication done by Tora? In addition to the observations of the mechanics, the plaintiff also relies upon exhibit A, the garage work card which lists all disbursements. There is no charge for oil. Exhibit I shows the labour charged and included is 9� hours workshop as distinct from panel shop hours. The plaintiff requested a �full service�. Because of widespread ownership, use and care of motor vehicles it could almost be said that �a full service� is a term of art.

I have before me the service checks used by the vehicle�s distributors, Ela Motors. An intermediate service requires the lubrication of all nipples, the filling up of the gearbox and transfer box oils, whilst a full service requires the lubrication of all nipples and the replacement of gearbox and transfer box oils. According to Gipmai who had previously worked with Ela Motors, he understands a �full service� to mean replacement of the oils and the lubricating of the universal joints as shown in the owners manual exhibit Z. Michael McKindie who wrote out the work card included a �full service�. This was to be done by a mechanic Abraham Minamao whose name appears in exhibit I. He was not called to give evidence. It is clear that a �full service� as understood by McKindie is not as the distributors envisage it, or indeed what I consider the public world understand by that term. At the most it meant checking the transfer oil only, not replacing it. He was quite clear that any oil used would have been itemised and charged accordingly. Whilst I am satisfied that Tora completed the panel work and the work necessary for a road worthiness certificate to issue, I am not satisfied that it carried out the �full service� also requested.

It has been suggested that there are other causes for the breakage, such as long neglect or a hairline fracture developed in the case which finally ruptured. These are possibilities. Reliance is placed upon Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283 to support the proposition that where there are other equally likely explanations of the failure, the plaintiff has not displaced these sufficiently on the balance of probabilities. In that case a motor vehicle windscreen disintegrated for no apparent reason and the manufacturer of the glass was sued. But the glass had to be screwed into its frame by others, it had been in position for about a year, there was time for examination of it and the opportunity of damage from causes other than a defect in manufacture was possible. The plaintiff there failed on the evidence, but this is not the situation here. A cause can be established.

I have evidence of the likely effects of lack of lubrication and greasing. I have evidence that no oil or grease was observed where it would be seen normally on a breakage such as this. There is some support also from the fact that Constable Mongea observed no oil at the scene when inspected two days afterwards. What could happen, did happen. What should have been observed was not. The transfer case at the side of the whole assembly, being the weakest point, broke away. This leads me to conclude that the vehicle was not greased and lubricated and it was the lack of grease and lubricants which caused the breakage either because there was no lubricant inside the case or because of a seizure of the universal joints through lack of grease, or, a combination of both. The liability of Tora Enterprises Pty Ltd is thus established. That there may have been a hairline fracture, undetected, is at most a possibility, one which cannot displace the fact that �a full service� was not done.

LIABILITY OF SECOND DEFENDANT

The liability of the Motor Vehicles Insurance (PNG) Trust can only arise as a matter of law. The plaintiff relies upon s 54(1) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295) (the Act) in that he, being �any person� suffered bodily injury caused by or arising out of the use of a motor vehicle insured under this Act. The vehicle was so insured at the time the injuries were sustained (exhibit E certificate). The contrary argument is that this section must be read in the context of the Act and when so read the words �any person� exclude an owner/driver. In support the preamble to the Act, s 48(1) and s 49 are cited.

The preamble requires that owners (and drivers) of motor vehicles be insured against liability in respect of the death or bodily injury to �persons� caused by or arising out of the use of motor vehicles. It is submitted that �persons� must exclude an owner/driver for he cannot have a liability against himself.

In Pt VIII, headed Third Party Insurance Cover, s 48(1) obliges an owner to insure himself against claims:

�Subject to this Act, the owner of a Motor Vehicle must at all times during the registration of the Motor Vehicle indemnify himself and keep himself indemnified with the Trust against the sums specified in s 49(2)(a) for which he or his estate may become liable by way of damages for death or bodily injury to a person caused by, or arising out of the use of, the Motor Vehicle.�

Again it is submitted that in the context of this section a person must exclude an owner/driver for he can have no liability in damages for the death or bodily injury of himself.

The argument in relation to s 49 is that it relates to �third party insurance� which belies any suggestion the insurance covers an owner/driver�s death or injury. Under the heading �Manner of effecting Third-party insurance�, s 49(2)(9a) provides:

�A third-party insurance cover issued under Subsection (1):

(i)������ K100,000.00 in respect of the death of or bodily injury to any one person in any one case; and

(ii)����� K500,000.00 in the case of any one accident or series of accidents arising out of the one event.�

The submission is the same: �a person� must exclude an owner/driver for he can have no liability in damages for his own death or bodily injury.

In Pt IX headed �Claims and Actions for Damages�, s 54(1)(a) is as follows:

�Subject to Subsection (2) 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; 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.�

It is contended by Mr Gzell that this does no more than enable a claim which could otherwise lie against an owner or driver to be brought against the Trust. It presupposes that a claim would otherwise be maintainable against the owner or driver � hence the reference to proceedings against the Trust and not the owner or driver. It is thus limited and does not provide that any person injured by a motor vehicle might sue the Trust. The reference to �any person� must exclude an owner/driver for he is under no liability to himself.

Central to these submissions is the concept of third party insurance cover. It is defined to mean �an insurance cover issued by the Trust�. It is further defined by implication � the owner of a motor vehicle must indemnify himself and keep himself indemnified with the Trust for K100,000.00 in the case of death or bodily injury to any one person �for which he may become liable by way of damages for... injury to a person caused by or arising out of the use of the motor vehicle�. From s 48(2) this indemnity is impliedly called �third party cover�. The cover insures the owner who drives the vehicle against all liability incurred by him �in respect of... injury to a person caused by or arising out of the use of the motor vehicle�. (See s 49(2).)

I do not think that much flows from the words �third party insurance cover�. This has been the view expressed elsewhere. In doubting if it had definite meaning of applying to a third person Lord Porter said in Digby v General Accident Fire and Life Assurance Corporation [1943] AC 121 at 145:

�In my view, in a policy such as this indemnity against third-party liability is used in contradistinction to indemnity against �loss or damages� to the car and means only that the insurer will indemnify the insured against any proper claim made on him by a person who is injured by the negligent driving of the car. I do not think that there is any question of first, second and third parties. The phrase is merely a useful description of a particular type of insurance .... The term �third party� must, I think, take its meaning from the words in collocation with which it is used.�

And, in referring to the heading �Third Party Insurance� in the Motor Car Act 1958 (Vic), Dean J said in North British & Mercantile Insurance Co Ltd v Smith [1960] VicRp 11; [1960] VR 78 at 81:

�This may afford a rough description of the purpose of the provisions, but it can throw no light upon the construction of the provisions themselves. The expression �Third Party� is itself far from clear, as there is no second party. It is a familiar expression in this connection as referring to persons whose benefit the legislation has been enacted.�

The traditional view of similar legislation elsewhere is summarised in Joske & Brooking Insurance Law in Australia and New Zealand (1975), at 107:

�The policy of compulsory third party insurance legislation is to protect those who suffer bodily injury or the relatives of those who suffer death caused by or arising out of the use of motor vehicles. The claims of such persons were exposed to the danger that the person liable might not be insured against third party risks and to the risk, in a case in which he was insured, of the insurance moneys not being applied to discharge the liability. There was also the difficulty that sometimes arose of the claimant being unable to identify the car causing injury or death. The Acts are designed to protect those suffering injury or the relatives of persons killed from defeat of their claims through these causes. The Acts require that motor vehicles shall be insured, so that an indemnity exists against any liability incurred by the owner or driver in respect of the death of or bodily injury to any person caused or arising out of the use of the motor vehicle.�

That this also should be the view taken of the legislation here, Mr Gzell submits a line of authority which excludes any claim by an owner where he is also the driver. If it were otherwise it is said that there would be a no fault liability scheme. But that is not the plaintiff�s argument. Fault is an essential part of it as it is submitted that the vehicle owner/driver is self-insured by the Trust for damages incurred, caused by the negligence of another, and caused by or arising out of the use of the insured motor vehicle. It is the insured motor vehicle which connects and covers the plaintiff against the fault caused damage by another to the plaintiff. This is a novel argument, with a great deal of social merit. Can it be sustained under the legislation?

The leading authority on this type of legislation and insurance is Digby�s case (supra). The Road Traffic Act 1930 (UK) provided for compulsory insurance and required that any such policy must be one which insures a person or classes of persons which may be specified in it for any liability which may be incurred by him or them in respect of the death or bodily injury to �any person� caused by or arising out of the use of the vehicle on a road. It provided for indemnity of the person or class of persons which the policy purported to cover. The insured, car owner actress Merle Oberon, took out such a policy. She was subsequently injured in a collision and sued the chauffeur of her vehicle, Digby, and the driver of the other vehicle involved. Judgment was given against both drivers and Digby sought indemnity under the owner�s insurance policy. Amongst other things, it provided for �third party liability� in compliance with the Act and in terms very similar to s 48 and s 49 of the Act here. In speaking of �any person� (�a person� in s 48(1)), Lord Atkin said at 136:

�Any �person� should surely receive its ordinary meaning of any member of the public. The policy holder himself cannot come within the term, not because he is not a person, but because the clause only relates to a claim which the policy holder is legally liable to pay and such a liability cannot exist on a supposed claim at the same time by and against himself.... Put in another way, the words �any person� do not bear a restricted meaning, but the policy holder is excluded from the scope of the indemnity by the very description of the liability insured.�

In speaking of the indemnity to a driver (here the �other person who at any time drives� in s 49(2)) he said at 137:

�The subject of indemnity is to be ascertained by reference. To me it seems clear that on making the necessary reference the words should read: �extend �to indemnify� [an authorised driver] against all sums which he shall become liable to pay in respect of any claim by any person,� etc �Any Person� must receive its ordinary meaning and on this occasion the policy holder is plainly �any person�. The authorised driver is excluded because, as before, he can be under no liability to himself.�

It is nicely put by Lord Porter at 145:

�In my view, the true reading of subsection 3 is that, just as the policy holder is to be indemnified against any claim made on her by a person other than herself, so the authorised driver is to be indemnified against any claim made on him by a person other than himself.�

This case extended the policy so that the vehicle driver who injured the owner was able to be indemnified.

Somewhat reluctantly the High Court applied the converse in Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; (1960) 104 CLR 80, where the driver of a mechanical loader (a vehicle for the purposes of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) was injured because of its defective condition and the owner claimed indemnity.

The decision in Fawcett�s case at first instance was also considered by the Full Court in Quinn v Government Insurance Office of New South Wales [1961] SR (NSW) 497. The meaning of the New South Wales equivalent of s 48(1) was in question. Action was brought against Tracey who requested Quinn to drive a vehicle which was unroadworthy, subsequently went out of control, turned over and injured him. The indemnity in the policy covered Tracey. The Court said at 503:

� �... that the policy covers any case in which, upon an examination of the facts, it is seen (a) that bodily injury has been caused by or has arisen out of the use of a motor vehicle and (b) that the circumstances in which the injury occurred are such that a liability attached either to the driver or the owner, (or both) ...�.

His Honour concluded by saying that he could not accede to the proposition that it is essential, in order to attract indemnity, that the person injured should be someone other than the person then in charge of the vehicle or that the cause of action should depend upon the negligence of that person. We agree with the conclusions of Walsh J and with his reasons.�

I have been referred to a Victorian decision, the North British case which troubles me somewhat as the Motor Car Act 1958 (Vic) which is the relevant legislation there, specifically exempts from indemnity in a policy issued in compliance with it, the owner or driver in respect of injury to or death of such owner or driver.

That case arose out of a claim by the husband of the insured owner who claimed for damages suffered by him as a result of the negligence of the driver. His claim included damages for the loss of the society and services of his injured wife. It appears to me the conclusion at 81, that:

�The purpose of the Act... was to indemnify owners and drivers only in cases where persons other than themselves were injured, such as pedestrians, persons in other cars, and passengers in the car the subject of the indemnity.�

is therefore qualified in application to the Act here. Likewise, the view of Gowans J in Riley v Insurance Commissioner (Vic) [1972] VicRp 26; [1972] VR 265 at 270:

�... that the correspondence were intended to be indemnity of the �owner� on the one hand, and injury to �driver�, on the other and indemnity of the �driver� on the one hand and injury to the �owner� on the other. Indemnity of the owner and injury to the owner are ruled out as self contradictory....�

I have been referred to Cooper v Motor Insurers� Bureau [1985] QB 575 as being squarely on the proposition raised by the plaintiff. I say at once, it is a case the result of which I view with distaste and disquiet. Cooper sought compensation from the Bureau which appears to me to have some of the functions which we associate with the Nominal Defendant. He drove a motor cycle and the brakes failed because of a defect of which he knew nothing and which was the responsibility and liability of the owner Mr Killacky. The vehicle was not insured at the time. Cooper relied upon an unrestricted meaning for �any person� in s 145(3)(a) of the present Road Traffic Act 1972 (UK), in order to be covered by an indemnity from the Bureau. The section provides:

�the policy � (a) must insure such person, persons or class of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road.�

Cumming-Bruce LJ with whom the other members agreed then continued (at 580):

�On a consideration of section 145(3)(a) the policy will satisfy the requirements of the Act, provided that it insures a person, persons or classes of persons specified in the policy in respect of liability that may be incurred by him or them in respect of damage to any person caused or arising out of the use of the vehicle on the road.... Therefore all the necessary requirements of section 145(3)(a) are fulfilled and the plaintiff can claim to be, and is, �any person suffering damage caused by or arising out of the use of the vehicle on a road�.�

However the court considered that the section had to be read in the context of s 143(1) which reads:

�It shall not be lawful for a person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is inforce in relation to the use of the vehicle by that person or that other person... such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act;...�

Then continues an approach which appears at odds with the logical extension of indemnity seen in the cases already mentioned (at 580-1):

�The obligation imposed by statute by section 143(1), breach whereof constitutes a criminal offence, is an obligation... from use or from causing or permitting any other person to use a motor vehicle on the road unless there is in force in relation to the use of the vehicle by that person or that other person such a policy of insurance in respect of third party risks as complies with the requirements of that Part of the Act, and, having regard to the content of that subsection, it is clear that that obligation upon the insured is to take out a policy covering him in respect of third party risks which, whatever ambiguity the phrase may have, clearly does not include the actual driver of the vehicle at the time of the use of the vehicle which gives rise to the damage.... As the judge found, although taken by itself the words of s 145(3) in the reference to �any person� are unrestricted in any respect, as soon as section 43 and the obligation therein imposed is considered, it necessarily follows that there must be an intention to restrict the scope of the phrase �any person� in s 145(3)(a) so as to exclude the driver of the vehicle at the time of the imagined risk.�

Based on these authorities the case for the Trust is that the Act requires insurance against liability in one person, either the owner or driver of a motor vehicle for the injury to another. There cannot be at one and the same time injury to a person who is himself liable for that injury. Such a concept is self contradictory.

The plaintiff seeks a wide unfettered meaning for s 54 of the Act by which the Trust will be liable for damages arising out of the use of the motor vehicle; Vaux v Law Union & Rock Insurance Co Ltd [1961] NSWR 268; Stewart v Sydney City Council; Government Insurance Office of New South Wales (Third Party) [1973] 1 NSWLR 444 and Brewer v Incorporated Nominal Defendant [1980] VicRp 45; [1980] VR 469 are cited as examples of the wide interpretation given to the phrase �arising out of the use of a motor vehicle� which can best be summarised by the words of Menzies J in Fawcett (supra) at 87:

�The Act is not I think concerned with fine distinction, but requires the issue of a policy that covers liability arising out of everything that falls fairly within the conception of the use of a motor vehicle.�

Thus, it is argued that a literal interpretation be given to s 54. I have been referred to Maxwell on Interpretation of Statutes (12 ed, (1969)) 28 as follows:

� �The length and detail of modern legislation,� wrote Lord Evershed MR, �has undoubtedly reinforced the claim of literal construction as the only safe rule�. If there is nothing to modify, alter or qualify the language which the Statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. �The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases.� �

Clearly, the Trust argument is that there is qualification and modification of s 54 by s 48 and s 49. I have come to the conclusion that any interpretation given to s 54 must be contextural: for the plaintiff to succeed the words �indemnify� and �liability� must be addressed. Does the indemnity apply to the policy holders claim for his own personal injuries? Does liability include the policy holder�s liability for his own personal injuries? The words appear in the context that he will �indemnify himself and keep himself indemnified ... against the sums ... for which he ... may become liable� (s 48) and the insurance cover providing the indemnity is �against all liability incurred by� him. His indemnity is for his liability. Kekewich J in Re Chapman; Cocks v Chapman [1895] UKLawRpCh 193; [1896] 1 Ch 323 said �liable� meant little more than �under an obligation�, whilst in Littlewood v George Wimpey & Co Ltd & British Overseas Airways Corporation [1953] 2 All ER 915, it was said that in a legal context �liable� denotes that a person is responsible or answerable at law. Thus, when the Act is seen in its general context of providing indemnity for liability for damages awarded in a motor vehicle negligence action, and these words are seen in their own context, liability can only mean liability to another person and indemnity can only be for the benefit of another person.

Reference has been made to the Constitution, s 22, and to the schedule mentioned therein. I have been urged to develop the law in question in accordance with the general customary law � that compensation should be given to a person wronged or reasonably perceived to have been wronged by another. I accept the evidence on this point. However, in my view, the Act does not permit the plaintiff�s interpretation in this instance. Any such development of the law would be contrary to Schedule 2.1, s (2).

With the proliferation of garages and repair yards of dubious expertise it would be in the interests of the motoring members of the public that their insurance with the Trust be wide enough to indemnify them for their own personal injuries caused by or arising out of the use of their own negligently repaired or serviced vehicle. Alas I cannot say that is the law at present.

INJURIES

The plaintiff suffered dreadful injuries. He was treated by Doctors Griffiths and Flynn at the Kundiawa Hospital from admission on 10 October 1983 and has been seen to date. He was admitted suffering from �a severe compound fracture to the lower third of the left tibia and fibula involving substantial skin loss with avulsion of muscle and severence of the anterior tribial artery and saphenous vein. Indeed the initial concern was to save the man�s life. Dr Griffiths apparently thought the wounds to be such that amputation would be necessary. About eight operations were required before the best possible reduction in the circumstances could be achieved. This was at the end of January 1984. Dr Griffiths reports the result in this way: �The leg (ie the bone ends) commenced to unite � albeit in a position of mal union � mainly an inch and a half of overriding � and the apposition of the fragments was poor, although we were largely able to avoid angulation. I can best describe this mal union from the X-Ray which shows instead of straight bones, two lightning strike type bones, similar to SS insignia. Calcification has taken the form of a bar between them.� On the plaintiff�s discharge from hospital on 25 April 1984 he estimated a probable final disability in the region of 50 per cent loss of usage of the leg. By February 1985 he revised this � �may be inadequate because at present he walks as well as a person, with an artificial limb, in a below knee amputation, although in this case it is his own leg that has been preserved�.

In only one sense can it be said that the plaintiff�s condition is stable, no further remedial work can be done. Dr Flynn says that the present loss of function is at least 50 per cent but this could increase to 75 per cent because of his prognosis of arthritis and arthrodesis. He says it succinctly in his report.

�As time goes on, he will feel more pain in his ankle joint because the articulating surfaces are slightly malaligned and rub unevenly. He also has pain which will get worse in his left hip and thigh, again from weight bearing unevenly in the joint. Such cases always develop arthritic problems which worsen with the passing of the years and on-going damage to the articulating surfaces. Later, the hip and ankle joints will arthrodise themselves or require surgical arthrodesis because of pain�.

In his evidence this doctor places the disability as high as 75 per cent.

The plaintiff�s leg is very disfigured. He has to wear a built up shoe with an elaborate caliper which encircles the lower leg. He walks with a pronounced limp and used a stick for support as he has a tendency to topple. He requires the special shoe to be refitted every year. Dr Flynn recommends that now it be made wider, almost like an outrigger, to stop toppling.

I accept the medical evidence of the plaintiff�s injury, treatment and prognosis. I note the six months he spent in hospital and the further period he had with a plaster cast. I note also that �he had a pretty miserable time whilst in hospital�.

DAMAGES

The plaintiff has claimed for personal injuries and for property loss and damage. The personal injuries claim includes damages for pain and suffering, loss of enjoyment of life, out of pocket expenses (past and future) and past loss of income.

The plaintiff is presently aged about thirty-five years. He is married with two young children. At the time of the injury he was a Magistrate Grade 2 (acting) at Liagam. His substantive position was a Magistrate Grade 1 and he received a higher duties allowance of K63.45 per fortnight. To obtain promotion in the Magisterial Service, the plaintiff could work his way through the various grades by taking postings such as the one in Liagam, become confirmed in it after assessment and so move on. Alternatively he could have obtained a Diploma in Magisterial Studies and awaited a promotional appointment. The plaintiff was chosen to do a diploma and I am satisfied that but for the injury would have attended the course. Because further check ups were required at the Kundiawa hospital, the plaintiff transferred to the court there in a Grade 1 capacity only. His promotional prospects have been somewhat slowed. Higher duty allowance ceased on 9 March 1984. The plaintiff has claimed for the loss of the higher duty allowance for three years. I consider this reasonable.

I have evidence that the plaintiff has been and still is a keen footballer, though he must be moving towards the end of his playing career. He takes part in his own village activities in Chimbu. Because of his disability these activities have ceased. I consider the remarks of his wife on this latter aspect significant, �I think people look down on him now�. I recognise that he comes from a society of the quick and the strong, not of the slow and weak. The plaintiff is burdened by a cumbersome shoe and caliper for the rest of his life. This is perhaps marginally better than an artificial limb. I accept that this has to be replaced annually in Lae and that someone will need to accompany him for the fitting out period. The claim for expenses for a further 30 years at a cost of K400 pa is a reasonable one.

I award personal injury damages as follows:

The claim for property damage is more difficult to quantify because of the difficulty in valuing it. The vehicle was sold for K2,000. Prior to the damage it was roughly valued at between K3,500-4,000, depending upon a private sale or a trade in sale. I consider this valuation high. Money was expended to make the vehicle usable after the accident but I have no exact details of this. There was considerable delay before the vehicle was sold. I have no figures to substantiate the value of the goods stolen from the vehicle after it was left at the roadside, but clearly the personal effects of the Kiak family were taken.

I do not consider that the other claims for loss enumerated in the statement of claim can be sustained. For the items I will allow, it is a matter of doing the best I can.

Interest on the pre trial pain, suffering, loss of amenities and other special damages is assessed as follows.

K19,979

On this amount I will allow interest at the rate of 4 per cent from 19 October 1983 until today, a sum of K2,536.

Judgment for the plaintiff against the first defendant will be K50,615.00 costs to follow the judgment.

In the circumstances, although the second defendant Trust has been successful in defending the action, I will not make any order for costs against the plaintiff.

Orders accordingly

Lawyer for the plaintiff: William Neill.

Lawyer for the first defendant: Gadens.

Lawyer for the second defendant: Young & Williams.