Lipai and Others v Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 363 (1 May 1996)

PNG Law Reports 1996

[1996] PNGLR 363 - Susanna Lipai and Others v Motor Vehicles Insurance (PNG) Trust

[1996] PNGLR 363

N1421

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SUSANNA LIPAI & OS

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Salika J

1 May 1996

PRACTICE AND PROCEDURE - Application to dismiss claim as being statute barred - Claims under the Motor Vehicle (Third Party Insurance) Act Ch 295 - No time limitation under that Act - Whether Wrongs (Miscellaneous Provisions) Act Ch 297 applies, or the Statute of Frauds and Limitations Act Ch 330 applies.

LIMITATION OF ACTIONS – Death due to motor vehicle accident – Notice of injury or death within 6 months – Limitation period to claim damages for death – Whether Wrongs (Miscellaneous Provisions) Act Ch 297 s 25 or Statute of Frauds and Limitation Act Ch 330 apply.

Facts

Two applications are being made, one by the plaintiff seeking to enter judgement against the defendant. The other is by the defendant seeking to dismiss the proceedings as being statute barred. The Court decided to deal with the motion by the defendant first.

Held

1.       The Wrongs (Miscellaneous Provisions) Act Ch 297 declares that it is an Act relating to various aspects of the law of wrongs, the wrongs committed under the Motor Vehicles (Thrid Party Insurance) Act Ch 295 are properly covered by the Wrongs (Miscellaneous Provisions) Act Ch 297. Hence, the time limitation of three years applies.

2.       In this instance, the deceased died on 4 January 1991. Any claim against the Trust should have been brought before 4 January 1994 within the three years limitation period provided for under the Wrongs (Miscellaneous Provisions) Act Ch 297.

Counsel

D Lambu, for the plaintiff.

V W Mola, for the defendant.

1 May 1996

SALIKA J: There are two (2) motions on this matter. One by the defendants and one by the plaintiffs. The first motion is by the defendants seeking 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.

Section 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 Ch 297 and the Statute of Frauds and Limitations Act Ch 330. The lawyer for the defendant 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.

Section 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 Vehicles 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 to 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 stipulates 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.

Section 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.

Section 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 4 January 1991. Any claim against the Trust should have been brought before 4 January 1994, within the 3 years limitation period provided for under the Wrongs (Miscellaneous Provisions ) Act. The writ was filed on 6 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 defendant’s lawyer submit that in the absence of an expressed law dealing with specific contracts or torts, the Statute of Fraud and Limitations Act applies. The defendant’s lawyer further submits 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 of 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 defendant’s 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 defendant’s motion.

Lawyer for the plaintiff: David Lambu & Associate Lawyers.

Lawyer for the defendant: Gadens Ridgeway Lawyers.