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Lipai v Motor Vehicle Insurance (PNG) Trust [1996] PGNC 86; N1421 (1 May 1996)

N1421

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 718 / 1994

SUSANNA LIPAI & OS

-V-

MOTOR VEHICLE INSURANCE (PNG) TRUST

WAIGANI: SALIKA, J
01 May, 1996

JUDGMENT

D. Lambu for the Plaintiff
V. W. Mola for the Defendant

Practice and Procedure - Application to dismiss claim as being statute barred - Claims under the Motor Vehicle (Third Party Insurance) Act - no time limitation under that Act - Wrongs (Miscellaneous Provisions) Act applies - proceeding to be commenced 3 years after death.

There were 2 motions on this matter. One by the defendants and one by the plaintiffs. The first motion is by the defendants applying to dismiss the proceedings as being Statute barred. The second motion is by the plaintiff seeking judgement to be entered against the defendants.

I deal with the defendants motion first because it was filed first and secondly the plaintiffs motion will only be entertained if the defendants motion fails.

The issue in so far as the plaintiffs motion is concerned is whether the proceedings are statute barred. S.54(6) of the Motor Vehicle (Third Party Insurance) Act provides that a notice of intention to make a claim from the trust must be made to the trust within 6 months from the date of the accident causing death or bodily injury before any proceedings can be commenced against the Trust. The Act however does not state a limitation period within which actions or proceedings for damages in respect of accidents causing death or bodily injuries can be commenced from such use of motor vehicles.

Counsel have referred me to the Wrongs (Miscellaneous Provisions) Act and the Statute of Frauds and Limitations Act. The lawyer for the defendants submits that the Wrongs (Miscellaneous Provisions) Act applies as to when a claim for damages arising from use of a motor vehicle can be commenced. The lawyer for the plaintiffs on the other hand submits that the State of Frauds and Limitations Act applies.

The question as to which law applies is very important in this case because it will determine whether or not the plaintiffs have a valid claim and furthermore it will affect many people with similar claims in the future.

S. 37(6) of the Wrongs (Miscellaneous Provisions) Act says:-

"(6) In a case referred to in S.54 of the Motor Vehicle (Third Party Insurance) Act and S.20 of the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act the trust shall be deemed for the purposes of this part.

(a) to be a tort feasor in relation to the death or bodily injury in question, if the insured person was a tort feasor in relation to the death or injury; and

(b) to be responsible for the damage to the same extent as the insured person would have been held responsible if sued".

This simply means that the Motor Vehicle Insurance Trust is deemed to be the wrongdoer where death or bodily injury arises out of a motor vehicle accident, if the insured person was the wrong doer and that the Trust is responsible for the damage to the same extent as the insured person.

The preamble of the Wrongs (Miscellaneous Provisions) Act says that it is an Act relating to various aspects of the law of wrongs. The wrongs that are committed under the Motor Vehicles (Third Party Insurance) Act are wrongs that are dealt with under the Wrongs (Miscellaneous Provision) Act. A person who gives notice to the Trust under s.54(6) that he intends to claim from the Trust, that person subsequently when he claims from the Trust claims in effect under the Wrongs (Miscellaneous Provisions) Act. Division 2 of that Act deals with liability in respect of motor vehicles and says that "third party policy" means a policy of insurance that is a third party policy within the meaning of the Motor Vehicle (Third Party Insurance) Act.

S.48 of the Motor Vehicle (Third Party Insurance) Act requires owners of motor vehicles to take out third party insurance cover to indemnify themselves and keep themselves indemnified with the Trust against any claim or liability for damages for death or bodily injury to a person arising out of the use of a motor vehicle.

S.25 of the Wrongs (Miscellaneous Provisions) Act provides the limitation period. It provides that every action brought under Part IV of the Act must be commenced with in 3 years after the death of the deceased person.

The deceased in this case died on the 4th January 1991. Any claim against the Trust should have been brought before 4th January 1994, within the 3 years limitation period provided for under the Wrongs (Miscellaneous Provisions ) Act. The writ was filed on the 6th September 1994 well after 3 years.

As to the application of Statute of Frauds and Limitations Act the defendant’s lawyer submitted that by virtue of S.16(1)(a) of that Act, that Act is generally applicable to all action for simple contracts or tort (wrongful conduct). The defendants submit that in the absence of an expressed law dealing with specific contracts or torts, the Statute of Fraud and Limitations Act applies. They submit that it does not apply to actions for damages arising out of the use of a motor vehicle because the Wrongs (Miscellaneous Provisions ) Act expressly caters for those matters.

The plaintiffs on the other hands argues the Statute or Frauds and Limitations Act applies because the Motor Vehicles (Third Party Insurance) Act does not provide for a time limitation within which actions or proceedings for damages arising out of use of motor vehicles are to be commenced. In the absence of such provision they argue that the Statute of Frauds and Limitations Act applies.

I agree with the submissions of the defendants lawyers that the Wrongs (Miscellaneous Provisions) Act is the appropriate legislation that is invoked after s.54(6) of the Motor Vehicle (Third Party Insurance) Act procedures have been completed. This means that a claim for death arising from use of motor vehicles must be made within 3 years after such death.

Furthermore the plaintiffs have not given any explanation as to why these proceedings were commenced after 3 years.

I uphold the submission of the defendants and rule that this claim is now statute barred and accordingly dismiss it with costs.

I need not consider the motion filed by the plaintiff in view of my ruling on the defendants motion.

Lawyer for the Plaintiff: David Lambu & Associate Lawyers
Lawyer for the Defendant: Gadens Ridgeway Lawyers.