Ziporo v Motor Vehicles Insurance Ltd [2008] PGNC 234; N3701 (20 February 2008)

N3701

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1470 OF 2003

BETWEEN:

JOHN BASIL ZIPORO for and on behalf of himself, the two widows, Margaret Ziporo and Mary Ziporo and the 10 dependent children
Plaintiff

AND:

MOTOR VEHICLES INSURANCE LTD
Defendant

Waigani: David, J
2008: 20 February

NEGLIGENCE – claim for damages – proceedings under Motor Vehicles (Third Party Insurance) Act, Chapter 295- liability denied – motor vehicle not properly identified – must establish category of claim – alleged negligence of driver – onus not satisfied – claim dismissed.

Cases cited:

Garo Kei v. MVIT [1992] PNGLR 195
Imambu Alo v. MVIT [1992] PNGLR 487
Lucy Kongupi v. MVIT (1992) N1043
Martin Kilte v. MVIT (1992) N1085
Bepiwan Ambon v. MVIT (1992) N1116
Waro Moses v. MVIT [1993] PNGLR 63
Moki Gelua v. MVIT (1993) N1043
Pare Umbe v. MVIT (1997) N1574
Joe Danga v. MVIT (1997) N1665

Counsel:

Plaintiff in person
V. Mirupasi, for the Defendant

JUDGMENT

1. DAVID, J: INTRODUCTION: The Plaintiff instituted this action against the Defendant under the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 (the Third Party Insurance Act).

2. The Plaintiff is the natural brother of the late Anthony Guran Ziporo (the deceased). On 20 October 2003, he commenced this action by way of his Writ of Summons and Statement of Claim dated 17 October 2003 claiming damages on behalf of himself, the two widows of the deceased namely, Margaret Ziporo and Mary Ziporo and the ten wholly dependent children.

3. The Plaintiff claims that the deceased was hit by a speeding motor vehicle along the Ela Beach road between Hunter and Durbill Streets in front of the Ela Beach Hotel in the National Capital District and the deceased died on 21 October 2000 as a direct result of the injuries sustained from that accident. The Plaintiff also claims that the motor vehicle involved in the accident was a Mazda utility bearing registration number CAG 931 owned by Guard Dog Security Company of Port Moresby (the motor vehicle) and was driven by one Luke Tanda (the driver) at the material time. The Plaintiff further alleges that the accident was caused by the negligent driving of the driver.

4. The claim is brought against the Defendant as the Plaintiff claims that the motor vehicle was duly registered and had a third party insurance cover issued by the Defendant in relation to it at the material time.

5. On 5 December 2003, the Defendant filed its defence dated 25 November 2003 denying the allegations, but pleaded in the alternative, contributory negligence on the basis that the deceased was responsible for his own death by being intoxicated and running into the path of the motor vehicle.

THE ISSUES

6. The major issues for the Court’s determination are:-

1. Whether the Plaintiff has established a claim under one of the categories prescribed under s.54 (1) of the Third Party Insurance Act?
   
2. If the first issue is decided in favour of the Plaintiff, was the driver negligent?
   
3. Did the deceased contribute to his death by his own negligence?
   
4. If the Defendant is liable, what are the Plaintiff’s damages?
   

I will discuss issues 1 and 2 together as they deal with liability. Should liability be established, Issues 3 and 4 will be discussed.

THE RELEVANT LAW

7. A person who wants to make a claim for damages for death or bodily injury arising from a motor vehicle accident must make the claim under s. 54 of the Third Party Insurance Act. The claim must be brought against the successor company namely, Motor Vehicles Insurance Ltd and not against the owner or the driver of the motor vehicle: see ss. 1, 54 (1) and 71(1) of the Third Party Insurance Act. I reproduce those provisions below.

8. Section 1 of the Third Party Insurance Act defines "successor company" as:-

"(a) in Part XII, the successor company nominated under Section 65; and

(b) elsewhere in this Act (other than this definition)—

(i) for the period from 14 January to 31 December 1998 inclusive, the successor company nominated under Section 65; and

(ii) on and from 1 January 1999, Motor Vehicles Insurance Ltd or such other company as may be nominated under Section 72;.."

9. Section 54 (1) of the Third Party Insurance Act states:-

"54. Claims for damages

(1) 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 successor company 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 successor company and not against the owner or driver of the motor vehicle."

10. Section 71 (1) of the Third Party Insurance Act states:-

"71. Replacement of successor company

(1) Subject to Section 72 –

• (a) on and from 1 January 1999, Motor Vehicles Insurance Ltd is deemed to be, and to have been at all times on and from that date, the successor company under this Act other than in this Part; and
  
• (b) all claims and liabilities arising as a result of the provision of third-party insurance cover to owners of motor vehicles under and in accordance with this Act which arose before 1 January 1999, or which arose or may rise after 1 January 1999, are claims against and liabilities of Motor Vehicles Insurance Ltd."
  

11. Before filing an action against the Defendant, the claimant must give notice of an intention to make a claim to the Defendant within a period of six months after the occurrence out of which the claim arose or within such further extended period under the dictates of s. 54 (6) of the Third Party Insurance Act. That is not in issue in this case.

12. Section 54 (1) of the Third Party Insurance Act specifically provides for liability of the Defendant in three categories where death or bodily injuries have resulted from the use of:-

1. a motor vehicle insured under the Act; or
   
2. an uninsured motor vehicle in a public street; or
   
3. a motor vehicle on a public street where its identity cannot, after due enquiry and search, be established.
   

13. The Plaintiff must therefore firstly establish under which of the above categories this claim comes under or in other words the motor vehicle involved in the accident must be properly identified: see Martin Kilte v. MVIT (1992) N1085, Garo Kei v. MVIT [1992] PNGLR 195, Lucy Kongupi v. MVIT (1992) N1043, Waro Moses v. MVIT [1993] PNGLR 63 and Moki Gelua v. MVIT (1993) N1043.

14. The fact of registration and insurance requires strict proof: Bepiwan Ambon v. MVIT (1992) N1116; Garo Kei; Imambu Alo v. MVIT [1992] PNGLR 487; Pare Umbe v. MVIT (1997) N1574 and Joe Danga v. MVIT (1997) N1665.

15. The onus is on the Plaintiff to prove those underlying facts on the balance of probabilities.

THE PLAINTIFF’S EVIDENCE

16. In support of his claim, the Plaintiff called five witnesses. The Plaintiff, Margaret Ziporo, Mary Ziporo and John Loifa all gave brief sworn oral evidence. Charles Moreva also gave sworn oral evidence, but tendered his Affidavit sworn on 8 September 2004 and filed on 9 September 2004 which was admitted into evidence by consent and marked as Exhibit "A". All the witnesses were not subjected to cross-examination.

17. In his written submissions filed on 21 December 2004, the Plaintiff sought leave to tender his Affidavit and those sworn by Margaret Ziporo, Mary Ziporo, John Loifa and Charles Moreva all filed on 9 September 2004. Charles Moreva’s Affidavit is already in evidence. The other Affidavits were never tendered at the trial by the Plaintiff when he had the opportunity to do so while presenting his case. I refuse leave.

18. The summary of the evidence before the Court of each of the witnesses is set out below.

John Basil Ziporo

19. He is the brother of the deceased. He claims damages for the death of the deceased and has brought this action because the Defendant denies liability. He does not know the circumstances under which the deceased died as there were no eye witnesses, but the police took the story about the accident from the driver.

Margaret Ziporo

20. She is the first wife of the deceased. They have five children. She was at home when the accident happened, but she heard that the deceased was hit by a motor vehicle.

Mary Ziporo

21. She is the second wife of the deceased. She was at home when the deceased died. She had no idea as to the circumstances under which the deceased died. She recalled however that when the deceased went out drinking, usually with friends, he never got pissed.

22. The deceased used to give her K200.00 every fortnight.

23. The deceased obtained a loan. He consulted herself and the other co-wife before getting the loan and when it materialised, he gave them K100.00 each.

John Loifa

24. He is an employee of the Internal Revenue Commission. He and the deceased were employed in the Human Resources Division where the deceased worked as an Advising Officer, Recruitment. On the fatal day which was a Friday, they both finished work at about 04:00 o’clock and then left for their respective homes. When he returned to work on Monday following the weekend, he learnt that the deceased had died and was in the morgue.

Charles Moreva

25. He is an Insurance Consultant and an affiliate of the Australia Insurance Institute. He was previously employed as an Assistant Claims Manager with QBE Insurance (PNG) Limited and later with the Defendant as Claims Supervisor.

26. On 30 May 2003, he was approached by Mary Ziporo when she sought his views on the rejection of the claim by the Defendant and to engage his services generally to pursue the claim further.

27. He formed the view that this was a case involving a pedestrian, a matter he considered that could be settled on a contributory negligence basis. He then initiated correspondence with the Defendant under cover of Mary Ziporo’s letter dated 3 June 2003 proposing settlement on that basis. The Defendant responded by its letter addressed to Mary Ziporo of 21 August 2003 maintaining its earlier position.

28. He then assisted the Plaintiff to file the Writ of Summons and Statement of Claim. This was because the Plaintiff was unable to engage the services of the Office of the Public Solicitor having given no response to the Plaintiff’s request for assistance nor was the Plaintiff able to engage the services of private lawyers due to lack of funds and that the statutory limitation period within which to commence proceedings to pursue the claim was nearly up. He continued negotiations thereafter on a without prejudice basis for an out of Court settlement with the Defendant’s lawyers without success.

THE DEFENDANT’S EVIDENCE

29. The Defendant did not offer any evidence.

DISCUSSION OF ISSUES

Issue 1: Whether the Plaintiff has established a claim under one of the categories prescribed under s.54 (1) of the Third Party Insurance Act?

Issue 2: If the first issue is decided in favour of the Plaintiff, was the driver negligent?

30. The Plaintiff alleges at paragraphs 4 to 8 of his Statement of Claim the circumstances surrounding the accident that led to the death of the deceased on 21 October 2000, but the date of the alleged accident is not pleaded anywhere in the Statement of Claim. The Plaintiff, in short, claims that a third-party insurance cover was provided by the Defendant in relation to the motor vehicle and therefore it is liable. For the benefit of the Plaintiff, I set out in the ensuing paragraphs the relevant pleadings:-

"4. At a point along Ela Beach roadway in front of the Ela Beach Hotel in the National Capital District in Papua New Guinea, the deceased, the late Anthony Guran Ziporo was hit by a speeding vehicle identified as that of a Mazda Utility bearing the registration No: CAG 931.

5. The deceased met his death on the 21st day of October, 2000 from injuries he sustained directly and consequent upon the use of a motor vehicle at a roadway, between Hunter and Durbill Street along the Ela Beach Road.

6. At all material times, the identified vehicle was owned by the Guard Dog Security Company of P.O. Box 648, Port Moresby, National Capital District in Papua New Guinea and was insured under Compulsory Third Party Insurance Policy number 2115027 due to expire on the 9th day of December, 2000.

7. At all material times, the identified vehicle’s safety sticker (No: 18750) and the registration were current to expire on the 10th day of December, 2000.

8. At all material times, the driver namely one Luke Tanda of P.O. Box 648, Port Moresby, National Capital District in Papua New Guinea under the circumstances was manifestly negligent in the manner of his driving directly resulting in the death of the late Anthony Guran Ziporo. Negligence includes but not limited to:-

(a) Failure or omission to take proper lookout for other road users as roadways are commonly and acceptably used by pedestrians, especially when approaching the Ela Beach Hotel where it is usually very busy with party goers on Friday nights.

(b) Driving at such speed (50 to 60 kmph) on a public road without due consideration of other road users or with complete disregard for the safety of other road users.

(c) Failure or omission to slow down, stopping, swerve away and or taking any other reasonable evasive action by use of the brakes or the steering wheel to avoid hitting the pedestrian as he was in total control of the vehicle at the material time.

(d) Reckless driving in such manner as to create a serious risk of causing injury or death without giving due thought to the risk, or realising that there is a risk at the location he was approaching. The location being the Ela Beach Hotel which is usually busy with both vehicles and party goers on Fridays and Saturdays."

31. The Defendant denies liability, but at paragraph 4 of its defence admits that it issued an insurance policy number 2115027 for a motor vehicle bearing registration number CAG 931 without stating in whose favour was the cover made out. I set out the relevant paragraph below:-

"5. Save that the Defendant has issued an insurance policy number 2115027 for a motor vehicle with the registration number CAG 931, the Defendant does not know the rest of paragraph 6 of the Statement of Claim and therefore cannot admit the same."

32. The effect of that is that the Plaintiff must prove that the motor vehicle issued with the insurance policy number and bearing the registration number pleaded is the one that was involved in the alleged accident. The Plaintiff was put on notice that the identification and ownership of the motor vehicle were in issue. I do not think that the fact that the Defendant was in a better position to give evidence as to the registration, insurance, and ownership of the motor vehicle when it elected not to, will alter that position. The threshold question is which motor vehicle, if any, was involved in the accident which resulted in the death of the deceased.

33. The Plaintiff submits that the deceased died after he was struck by the motor vehicle driven negligently by the driver at a point along the Ela Beach road between Hunter and Durbill streets on Friday, 20 October 2000 at or about 10.40 pm as he was crossing the road. He argues that the deceased was taken to the Port Moresby General Hospital after the accident and was pronounced dead at or about 05.00 am on the morning of 21 October 2000. The Plaintiff further submits that the motor vehicle’s registration and certificate of roadworthiness and third-party insurance cover were all current at the material time. The registration and certificate of roadworthiness represented by Safety Sticker number 18750 were due to expire on 10 December 2000 whilst the third-party insurance cover provided under third-party insurance policy number 2115027 was to expire on 9 December 2000.

34. There is no credible evidence before the Court to prove that an accident involving the motor vehicle took place on 20 October 2000. There is also no police accident report before the Court, nor is there a contemporaneous medical report to suggest admission of the deceased to a medical facility or hospital on 20 October 2000 after the alleged accident leading to his death on 21 October 2000 and there is no documentary evidence that the motor vehicle bearing registration number CAG 931 and insured under third party insurance policy number 2115027 is actually owned by Guard Dog Security Company.

35. The Plaintiff in fact concedes at page 5 of his written submissions that ‘ ...oral evidences tendered during trial did not point one way or another as to ascertaining the circumstances of the Motor Vehicle Accident, .....’

36. Mr. Mirupasi submits that the Plaintiff has not proven registration and insurance of the motor vehicle allegedly involved in an accident on 20 October 2000 which requires strict proof and therefore the claim must be dismissed. He argues that such evidence could have been produced by a police officer or officers of the Motor Traffic Registry and the Defendant if asked. He also submits that the registration and insurance details alleged are insufficient. I accept the submissions advanced by Mr. Mirupasi. The end result is that there is no evidence before the Court identifying under which category of section 54 (1) of the Third Party Insurance Act, the claim arises.

37. I also accept the submissions of Mr. Mirupasi that the Plaintiff has provided no evidence of negligence.

38. The claim must fail, the Plaintiff having not discharged the onus placed on him. I, therefore, return a verdict for the Defendant with costs.

ORDER

39. I make the following orders:-

1. The Plaintiff’s claim is dismissed.

2. The Plaintiff is to pay the Defendant’s costs.

___________________________________________
Plaintiff in person
Mirupasi Lawyers: Lawyers for the Defendant