Motor Vehicles Insurance Ltd v Kawage [2014] PGSC 57; SC1362 (4 July 2014)

SC1362

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 146 0F 2012

MOTOR VEHICLES INSURANCE LIMITED
Appellant

V

NUMABO KAWAGE
Respondent

Waigani: Cannings J, Kariko J, Ipang J

2014: 2, 4 July

INSURANCE – compulsory motor vehicle insurance legislation – civil proceedings involving a claim for damages in respect of bodily injury to a person arising out of use of a motor vehicle – issue of whether motor vehicle insured – onus of proof – standard of proof – Motor Vehicles (Third Party Insurance) Act 1974, Section 54(1)

The respondent was injured in a motor vehicle accident and made a claim for damages against the appellant, the MVIL, which refused the claim. The respondent sued the appellant in the District Court, which dismissed the proceedings for the reason that the respondent failed to prove that the motor vehicle was insured under the Motor Vehicles (Third Party Insurance) Act 1974. The respondent appealed to the National Court, which upheld the appeal, finding that, though the respondent had not adduced in the District Court a certificate of insurance, the appellant presented no evidence (even though it was in the best position to rebut the respondent's assertion that the vehicle was insured), and as a consequence the respondent had proven that the vehicle was insured. The appellant appealed against the decision of the National Court arguing that the National Court erred by allowing the appeal from the District Court and ruling that there was no need for strict proof of insurance.

Held:

(1) A person making a claim for damages in respect of bodily injury under the Motor Vehicles (Third Party Insurance) Act has the onus of proving that the injury was caused by or arose out of the use of a motor vehicle in the circumstances prescribed by Section 54(1) of the Act.

(2) The relevant standard of proof is on the balance of probabilities.

(3) In some circumstances it will be necessary to prove that the vehicle was insured, and in proving that fact it will not always be necessary to produce in evidence a certificate of insurance, for example where a police investigating officer gives evidence of the details of insurance and the MVIL does not take the opportunity to effectively rebut that evidence, a court is entitled to find that the onus of proof has been discharged and that in fact the vehicle was insured.

(4) There is no rule of law or practice that the onus of proving that a vehicle is insured can only be discharged by presentation of a certificate of insurance.

(5) Here the National Court made no error of law in upholding the appeal from the District Court and deciding that strict proof of insurance was not required.

(6) The appeal was accordingly dismissed and the order of the National Court was affirmed.

Cases cited

The following cases are cited in the judgment:

Bepiwam Ambom v MVIT (1992) N1116
Garo Kei v MVIT [1992] PNGLR 195
Imambu Alo v MVIT [1992] PNGLR 487
Jack Lundu Yalao v MVIT (1995) N1386
Kamtai Waine v MVIT [1993] PNGLR 446
Martin Kilte v MVIT (1992) N1085
Omben Kumbe v MVIL (2005) N2860
Pare Umbe & Ngants Kopi v MVIT (1998) SC585
Sam Kuri v MVIL (2011) SC1117
Swingley Oni v MVIT (2004) N2767

APPEAL

This was an appeal against an order of the National Court, which allowed an appeal against a decision of the District Court in proceedings for damages for personal injury arising out of a motor vehicle accident.

Counsel

T Cooper, for the Appellant
P Kopunye for the Respondent

4th July, 2014

1. BY THE COURT: The appellant, Motor Vehicles Insurance Ltd, appeals against an order of the National Court, which allowed an appeal against a decision of the District Court in proceedings for damages for personal injury arising out of a motor vehicle accident.

2. The order of the National Court was made by Acting Judge Kangwia, as he then was, on 6 November 2012 in CIA No 60 of 2010. His Honour had heard an appeal from the decision of the Kundiawa District Court, constituted by his Worship Mr R Appa, made on 5 March 2010, following the trial of a complaint by the respondent, Numabo Kawage.

3. The respondent was injured in a motor vehicle accident near Kundiawa on 1 October 1999 and made a claim for damages against the appellant, the MVIL, which refused the claim. The respondent sued the appellant in the District Court, claiming damages for personal injury. His Worship Mr Appa concluded that the respondent was injured in the circumstances he alleged and that the injuries he received were due to negligent driving of the motor vehicle in which he was a passenger. However his Worship dismissed the proceedings for the reason that the respondent failed to prove that the motor vehicle was insured under the Motor Vehicles (Third Party Insurance) Act 1974.

4. The respondent appealed to the National Court. Kangwia AJ upheld the appeal, finding that, though the respondent had not adduced in the District Court a certificate of insurance, the appellant presented no evidence, (even though it was in the best position to rebut the respondent's assertion that the vehicle was insured), and as a consequence the respondent had proven that the vehicle was insured.

APPEAL TO SUPREME COURT

5. The appellant has appealed to this Court against the decision of the National Court, arguing that the National Court erred by allowing the appeal from the District Court and ruling that there was no need for strict proof of insurance. The issues raised by the appeal before us are:

1. Is it necessary for a person making a claim against the MVIL to prove that the motor vehicle was insured under the Motor Vehicles (Third Party Insurance) Act?
   
2. To prove that a motor vehicle was insured under the Act, is it necessary for the party making the claim to produce in evidence a certificate of insurance?
   
3. Did the primary Judge err by finding error in the District Court's finding that the respondent had not proven that the vehicle was insured under the Act?
   

1 IS IT NECESSARY TO PROVE THAT THE MOTOR VEHICLE WAS INSURED?

6. A person, such as the respondent, who is injured in a motor vehicle accident will often need to prove that the motor vehicle was insured under the Motor Vehicles (Third Party Insurance) Act. The key provision is Section 54(1), which states:

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 [defined by Section 1 of the Act as MVIL] 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.

7. It is evident that the respondent based his complaint that went to trial in the District Court on Section 54(1)(a) and was therefore required to prove that the motor vehicle in which he was a passenger was insured under the Act.

2. IS IT NECESSARY TO PRODUCE A CERTIFICATE OF INSURANCE?
   

8. The short answer to this question is no. It is certainly desirable and preferable that the person making a claim for damages produce in evidence a certificate of insurance. However, it cannot be said that in all cases it is necessary. Nor can it be said that if the person making the claim is unable to produce a certificate of insurance he or she cannot prove that the vehicle was insured. In drawing those conclusions, we uphold the submission of Mr Kopunye for the respondent and endorse the analysis of these issues by Cannings J in Omben Kumbe v MVIL (2005) N2860, who reviewed the case law and stated the relevant principles as follows:

• Though Section 49 of the Motor Vehicles (Third Party Insurance) Act requires that a certificate be issued when insurance is obtained, there is no rule of law or practice that says that a certificate must be adduced in evidence in order to prove that a vehicle was insured at the relevant time.
  
• The plaintiff has the onus of proving on the balance of probabilities that the vehicle was insured.
  
• If a statement of claim gives details of the registration number and insurance policy number of a vehicle, the MVIL should not plead that it does not know and cannot admit whether a vehicle was insured, and if it does so plead, its defence can to that extent be struck out (Jack Lundu Yalao v MVIT (1995) N1386, National Court, Injia J).
  
• If evidence as to insurance is conflicting the court should generally insist on a certificate as proof of insurance (Imambu Alo v MVIT [1992] PNGLR 487, National Court, Brown J; Pare Umbe and Ngants Kopi v MVIT (1998) SC585, Supreme Court, Hinchliffe J, Sawong J, Akuram J).
  
• If there is no proof that the vehicle was registered it will be difficult in the absence of a certificate of insurance to prove insurance (Garo Kei v MVIT [1992] PNGLR 195, National Court, Brown J).
  
• Oral evidence by a police officer of a search of the motor traffic registry which revealed that the vehicle was insured can constitute proof of insurance even if the certificate or a record of the search is not produced (Bepiwam Ambom v MVIT (1992) N1116, National Court, Brown J).
  
• Tender of a motor traffic accident report containing details of registration and insurance can, without anything more, constitute proof of insurance (Martin Kilte v MVIT (1992) N1085, National Court, Woods J; Kamtai Waine v MVIT [1993] PNGLR 446, National Court, Woods J).
  
• Oral evidence of a police officer containing details of the officer's observations about checking of registration and insurance of a vehicle for the purposes of investigating a motor vehicle accident is not hearsay and can be accepted as the best evidence available, especially where it has not been disproved by the party with the responsibility of keeping statutory records (Swingley Oni v MVIT (2004) N2767, National Court, Batari J).
  
• It is always open to a plaintiff to discover the necessary documents from the MVIL, to summon the vehicle owner or to summon the production of the document from the owner. However, the failure of the plaintiff to do those things does not prevent him from proving insurance by other means, eg he can prove insurance by relying on a road accident report prepared by a police road accident investigator, supplemented by oral evidence of the investigator (Kumbe).
  
• If a plaintiff presents evidence that the vehicle was insured, and the MVIL presents no evidence, and given that the MVIL is in the best position to give evidence rebutting the plaintiff's claim, the onus of proof that the vehicle was insured can be discharged, notwithstanding the plaintiff's failure to adduce a certificate of insurance as evidence (Kumbe).
  

9. Mr Cooper, for the appellant, invited us to refute the above principles. He submits that they are contrary to the Supreme Court decisions in Pare Umbe & Ngants Kopi v MVIT (1998) SC585 and Sam Kuri v MVIL (2011) SC1117 (Injia CJ, Hartshorn J, Sawong J). We consider that the Kumbe principles are not contrary to either of those decisions. Umbe & Kopi concerned a vehicle owned by Western Highlands Provincial Government, which had a 'Government plate' registration. The MVIL expressly denied that the vehicle was insured with it. This explains why the Court insisted on strict proof of registration and insurance. In Kuri the MVIL also expressly denied that the vehicle was insured with it. The National Court decided that the appellant had not proven that the vehicle was insured with the MVIL and the Supreme Court in dismissing the appeal found no error in the reasoning of the National Court. The Supreme Court did not, however, say that in every case it will be necessary to produce a certificate of insurance.

10. Each case must turn on its own peculiar facts and circumstances. In some cases it will be necessary to insist on strict proof by requiring the plaintiff to produce a certificate of insurance. In other cases it will not be necessary. The issue always remains whether the plaintiff has proven on the balance of probabilities that the vehicle was insured under the Act.

3. DID THE PRIMARY JUDGE ERR?
   

11. We find that the learned primary Judge properly took into account the following facts and circumstances:

• The respondent pleaded the details of the registration and insurance (policy numbers) of the two motor vehicles involved in the accident in which he was injured.
  
• The appellant denied in its defence that the vehicles were insured with it.
  
• At the trial in the District Court the respondent adduced evidence in support of the pleading that the vehicles were insured: the police investigating officer swore an affidavit that was admitted into evidence and gave oral testimony as to his preparation of a police accident report (which contained details of registration and insurance).
  
• The appellant's counsel did not cross-examine the police investigating officer as to how he obtained the insurance details.
  
• The appellant produced no evidence to support its defence that the vehicles were not insured.
  
• The appellant has a duty under the Motor Vehicles (Third Party Insurance) Act to maintain records of insurance of all vehicles in the country and is in the best position to know the insurance status of the motor vehicles involved in the case.
  

12. His Honour, in our view, made no error in concluding that the learned trial Magistrate had erred in law by deciding that the respondent had not discharged the onus of proving that the vehicles were insured.

CONCLUSION

13. The primary Judge made no error in upholding the appeal against the decision of the District Court. The appeal before us must be dismissed and the order of the National Court affirmed. Costs will follow the event.

ORDER

(1) The appeal is dismissed.

(2) The order of the National Court of 6 November 2012 in CIA No 60 of 2010 is affirmed.

(3) Costs of the appeal shall be paid by the appellant to the respondent on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
______________________________________________________________
Mirupasi Lawyers: Lawyers for the Appellant
Kopunye Lawyers: Lawyers for the Respondent