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National Court of Papua New Guinea |
Unreported National Court Decisions
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 bned by the State or Authority of the State - Motor vehicle owned by Provincial Government - Whether the Motor Vehicles InsuranNG) Trust can be sued - Motor Vehicles (Third Party) Insurance Act (Ch. No. 295) S. 1, S. 5 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 s were tried toed 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 inr respectspective 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 tere 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 onusefore is on the Plhe 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 aion 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 spend unlicensed driving. As a result o crash, the Pthe Plaintiffs suffered injuries to s to various parts of their bodies (para. of Statement of Claim).). The Dent denies these clai 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 Defendlso pleads volunvoluntarily assumption of risk on the part of the Plaintiffs as a defence (para. 10 of Defence).
On 12 Ap996, the two Writs were amended pursuant to order of the Court, to include particulars of e of economic loss and the relief claimed (para. 11 - 12 of Amended Writ). No amendments was sought b 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 ofr respective cases and file 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 mustrought againagainst the Trust in respect of:
1. ҈& A60; A motormotor vehicle insured under the Act.
2. ҈ A60; An uninsured mlthic iven iublic slic street.
3. An unidintified foto motormotor vehicle driven on a public street.
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) Subto Suisect2)n (2), any any claim for damages in respect of the death of or bodily injury to any person caused by, or rising outhe us
) a motor vehicle insured utder this Act; Act; or(b) &#an uninsured motor vehiclehicle in a public street; or
(c) & otormvehicvehicle on e on a public street where the identity of the mothicleot afue in and search be established,
shal>shall be l 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) &  proeerty erty of thef the State or of any authority of the Government; or (b) ҈ roe pty erty of thef the Government of Australia or of any authority of the Government of Australia; or (c) ҈& respe which pech persons are exempted by or under this Act from the proe provisiovisions ofns of Section 48.”
(underlininmine) The Plae Plaintiffs’ claims as pleaded in para. 3 of the Statement of Claim aaim and repeated in para. 3 of the Amendedement
of Claim is that the vehicle was owned by the Engineering Division of the Western Hign Highlands Provincial Government and registered.
The registration n is R “PAA 251”. This registration number, by the use of the word “P” shows that the
vehicle is a Provincial Government vehicle. A 0;Provincial Government&ment” no doubt is an authoritthe Government or a part
of the State. Therefore, a m, a motor vehicle owned by the Provincial Government comes within the meanf “uninsured motor veor
vehicle” in S. 1. The Trusnotane sued for a or a vehicle owned by the State or an auty of the Government, as in s in this
case, the Western Highlands Provincial government, because its vehicles are not insured with thet.he State-owned moed motor vtor
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 of m 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 afft, the policy number is givs given as 0088642. In the one tendered b Defe Defendant, the policy
number is given as 0088624.e Plaintiffs have not produced a copy of the Third party Inty Insurance Certificate if any, issued
under the Act to rectify or verifyconflicting policy numbers.bers. 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 gal basis and evidence to s to support this submission. I find that ubject motor vtor vehicle was owned by
the Western Highlandvincial Government and uninsured with the Defendant as correctly pleaded in the Writ of Sumf Summons. Under
S. 54 and S. 1 of tt, the Trust cannot be sued sued in respect of the subject motor vehicle. The Trust has been wrongly sued. For these rea I dismiss the Plaintiffs’ claim with costs to the Defendant. g arrived ated at this cons conclusion, I think
it is not nary to proceed further to consider the remaining evidence ance and submissions and decide the issue of liability and quantum
on thoses. Lawyer for the Plhe Plaintiffs: Kopunye Lawyers Lawyer for the Defendant: Young & William Lawyers
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URL: http://www.paclii.org/pg/cases/PGNC/1997/67.html