Hearing: 8th August
2001
Ruling: 10th August
2001
D. Hou for the Plaintiff
A. Radclyffe for the 3rd
Defendant
RULING
(Kabui, J):
By Sumfiled on 11th Jup> July 2001, the 3rd Defendant
seeks an order that paragraph 7 of the Plaintiff�s Amended Statement of
Claim be struck out on the ground that
there is no cause of action both in
law or custom for compensation in custom against the 3rd Defendant under the
Motor
Vehicles (Third Party Insurance) Act (Cap. 83). The 3rd
Defendant also claims costs on an indemnity basis. Paragraph 7 of the
Amendment Statement of Claims is in these terms
-
7. Further by reason of the
said death the Plaintiff and his faare entitled to Compensatiosation in
custom full particulars
whereof have been forwarded to the Defendants.
The Facts
The Plaintiff is the father of
the deceased who met his death on 9 July 1995. The deceaseceased was
a passenger travelling on a vehicle registered as AO505 driven by the 2nd
Defendant
on the Naha Kola Ridge road. The driver lost control of the
vehicle on the slope ascending Fulisango village and it rolled
backwards. It
ran off the road and thereby rolling down the hill causing the death of the
deceased. The deceased was
amongst passengers who sat at the back of the
vehicle. Letters of administration of the deceased�s estate were granted to
the Plaintiff on 20th June 2001. The Writ of Summons was served
on all the Defendants but only the 3rd Defendant entered a
Memorandum of Appearance on 5th July 2001. The 1st and
2nd appearance resulting in a judgment in default of appearance
being entered against each of them on 19th July 2001. The
Plaintiff has alleged negligence against all the Defendants jointly and
severally. The 3rd Defendant paid into Court the sum of $3,500.00
on 10th July 2001 as being sufficient damages under the Law
Reform (Miscellaneous Provisions) 1934 with interest thereon.
The Bone of Contention
The issue here is whether or
not a claim for compensation in custom can be made under the provisions of
the Motor Vehicles
(Third Party Insurance) Act (Cap.83). Counsel for the 3rd
Defendant, Mr Rydclyffe, argued that such claim for compensation based upon
custom could not be made under the provisions
of this Act because, he said,
that was not the intention of Parliament as clearly borne out by the
provisions of the
Act itself. In other words, third party insurance for
liability incurred by reason of vehicle accidents on the roads was a
creature of statute as opposed to custom practice. Mr Rydclyffe then argued
that in terms of paragraph 3(2) of the Constitution,
the alleged custom in
this case was contrary to the provisions of the Motor Vehicles (Third Party
Insurance) Act and therefore had no effect as part of the law of Solomon
Islands. Counsel for the Plaintiff, Mr Hou, argued the opposite.
He said
that custom was now part of the law of Solomon Islands and must be
recognised by the Courts. He cited a number
of cases in this jurisdiction on
this point of the Motor Vehicles (Third Party Insurance) Act which
expressedly excluded liability in custom excepting the limitations in
subsections (2) and (3) of that section.
Mr Hou's final point was that in
terms of section 77 of the Constitution, the High Court had jurisdiction to
entertain
claims in custom upon proof by evidence at trial.
Determination of the Issue
I do or one moment dispute
the position that custom is part of the law of Solomon Islands.ands. There are
however limitations.
Clearly, custom is of no consequence if it is
inconsistent with the Constitution or is inconsistent with an Act of
Parliament
(see paragraph 3 (2) of Schedule 3 to the Constitution). In this
case, there is no argument that the Plaintiff had come to
Court under
section 1 of the Law Reform (Miscellaneous Provision) Act, 1934 of the
United Kingdom by virtue of paragraph
1 of Schedule 3 to the Constitution
for the benefit of the deceased�s estate. This is a statutory right
conferred by
statute of general application under paragraph 1 in Schedule 3
to the Constitution above. (see Official Administrator of unrepresented
Estates v Allardyce Lumber Company Limited [1980/81] SILR 66, Tanda v
Cheung [1983] SILR 193 and Official Administrator of unrepresented
Estates v Saki [1983] SILR 21). The claim against the 3rd
Defendant arises because at the time of the accident, the vehicle registered
AO505 was insured against third party liability
under the provisions of the
Motor Vehicles (Third Party Insurance) Act (Cap. 83). The third party
insurance policy number is 046881. Liability of an insurer arises out of a
contract contained
in the third party insurance policy issued by the insurer
arises under the provisions of that same Act. This liability in practice
arises out of a contract contained in the third party insurance policy
issued by the insurer and accepted by the insured
on terms set out in the
policy backed up by the provisions of the Motor Vehicles (Third Party
Insurance) Act. Any claim for compensation for death arising from a road
accident where the vehicle involved in such accident has been insured
against third party risk under the provisions of the Motor Vehicles (Third
Party Insurance) Act must necessarily be a statutory claim. It cannot be
anything else. Clearly, it cannot be a claim based upon custom. The Preamble
of the Motor Vehicles (Third Party Insurance) Act is clear on this point.
That is to say
�AN ACT TO MAOVISION
FOR COMPULSORY INSURANCE AGAINST THIRD � PART PARTY RISKS ARISING OUT OF THE USE
OF MOTOR VEHICLES
ON ROADS AND FOR MATTERS CONNECTED THEREWITH AND
INCIDENTAL THERETO.�
ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In moving the second Reading of
the Motor les (Third Party Insurance) Bill 1972, the late Honourable able P.
Salaka, Chairman
of Communications and Works Committee in Parliament said�
�It is, that by making motor
vehicle third party insurance compulsory in the Protectorate, the legitimate
claims of injured
persons or those of the relatives of persons killed,
against the driver or owner of the vehicle which caused the accident,
will
be met. It does this by ensuring that the insurance company which issues a
policy to an owner or driver is responsible
for meeting claims for damages
on behalf of that owner or driver�... .
The need to enact this
legislation in 1972 was a result of the increasing number ofcles on the
road part particularly
in Honiara. The likely occurrence of road accidents
causing death was obvious and so the need for this legislation.
From my own knowledge of custom
in North Malaita, there is no such thing as third parability in custom
for for which
the Plaintiff can claim against the insurer under the provisions
of the Motor Vehicle (Third Party Insurance) Act as is being attempted in
this case. I do not believe such custom does exist in North Malaita or
elsewhere for that matter.
This is not a case of an existing custom coming
into conflict with an Act of Parliament but rather a case of such custom not
existing at all. The question of conflict between alleged custom and an Act
of Parliament does not arise here. The position
may however not be the same
as against the owner or the driver of the vehicle involved in this accident
in terms of liability
in custom. However, any claim in custom against the
owner or driver of the vehicle may have to be hard fought in a Court of
law
in view of the High Court decision in Isak Tosika v John Siho (Civil
Case No. 5/79 unreported). As pointed out by Mr Radclyffe, the 3rd Defendant
being an insurer under the provisions
of the Motor Vehicles (Third Party
Insurance) Act was not responsible for the death of the deceased. It came
into the scene only as an insurer of a third party risk. It did
not cause
the death of the deceased in this case. To attempt to interpret the
provisions of the Motor Vehicles (Third
Party Insurance) Act so as to
embrace claims for compensation in custom would be but absurd. Such an
attempt is totally untenable. It does
not hold water in every respect. The
claim against the 3rd Defendant as an insurer is therefore misconceived.
There is
another point. Including the claim in custom together with the
plaintiff�s claim under the provisions of the Motor Vehicles
(Third Party
Insurance) Act would seem to suggest that the 3rd Defendant is expected to
pay two separate heads of compensation for the same accident as
each claim
was not pleaded in the alternative. However, this point is of no
significance because as I have said the claim
in custom is misconceived and
must therefore go. Obviously, the 3rd Defendant succeeds on the
ground that the claim in custom has no basis under the provisions of the
Motor Vehicles (Third
Party Insurance) Act. I grant the Plaintiff�s
application and order that paragraph 7 the Amended Statement of Claim be
struck out. I also
feel that the last sentence in paragraph 1 in the Amended
Statement of Claim and paragraph (ii) in the Plaintiff�s Prayer for
relief
be also struck out. They are consequential amendments following the striking
out of paragraph 7 in the Amended
Statement of Claim. I think I can do this
under Order 63, rules 5 of the High Court (Civil Procedure) Rules 1964 (the
High Court Rules) though these consequential amendments were not asked for
by the 3rd Defendant. The rest of the Amended Statement of Claim
would remain unaffected. As to the question of costs, Counsel for the
Plaintiff, Mr Hou, argued that since this case raised a constitutional issue
of public importance, costs should be borne
by each party on an individual
basis. Mr Rydclyffe however maintained that costs should be on an indemnity
basis. Whilst
I am inclined to agree with Mr Rudclyffe on this point, it
must be borne in mind that the recognition of custom as part of
the law of
Solomon Islands by the Constitution is bound to attract litigation about
custom in terms of its existence,
its application, its limitations and its
development through the case law process in the Courts. Custom is not a
written
law nor are there numerous case law on it so that trial and error
process in the Courts cannot be avoided. This ruling is now
authority for
the proposition that a claim for compensation against an insurer under the
provisions of the Motor Vehicles
(Third Party Insurance) Act is not a claim
in custom of any sort. It is a statutory claim. I am therefore of the view
that in this case, the Plaintiff
should bear his own costs. All the same,
the 3rd Defendant should also bear his own costs. I make this order hearing
in mind the principles of awarding indemnity costs expressed in my ruling
delivered on 12th November 1999 on indemnity costs
in Reef Pacific
Trading Ltd and Joan Marie Meiners v Price Waterhouse, Richard Anthony
Barber and William Douglas McClusky (Civil Case No. 164).
In the result, I therefore make
e following orders: -
1. That tht sentence in
paragraph 1 of the Amended Statement ofnt of Claim be struck out;
2. That paragraph 7 in the
Amended Statement of Claim be struck out;
3. That paragraph (ii) in
the Plaintiff�s Prayer in the Amended StateStatement of Claim be struck out.
I order accordingly.
F.O. Kabui
Judge
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