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Wati v Queensland Insurance (Fiji) Ltd [2005] FJHC 594; HBC0385.2003 (5 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0385 OF 2003

BETWEEN:

BIJMA WATI
PLAINTIFF

AND:

QUEENSLAND INSURANCE (FIJI) LIMITED
DEFENDANT

Mr. S.K. Ram for the Plaintiff
Mr. T. Tuitoga for the Defendant

Date of Hearing: 17 May 2005
Dates of Submissions: 22 June 2005 (Subsequently extended)
Date Submissions Received: 18 July 2005
Date of Judgment: 05 August 2005

FINAL JUDGMENT OF FINNIGAN J.

This is a motor vehicle injury (Third Party) insurance claim. The Plaintiff was a passenger in a privately owned van, registered as a vehicle for private usage, and was injured. She took proceedings in negligence against the owner and driver of the vehicle in the Magistrates Court at Ba and recovered $11,000. The Defendant took no interest in the proceedings and has not paid her. She seeks to recover the money from the Defendant’s Third Party insurer.

On 31 May 2005 I issued an interim judgment in which I sought from Counsel submissions on the question whether the motor vehicles (Third Party Insurance) Act Cap 177 requires Third Party Insurers to provide cover for all passengers carried for hire or reward in passenger vehicles, even if they are registered as private vehicles for domestic use.

I have had constructive and interesting submissions from Counsel for both parties, each appending copies of authorities relied upon. I must say that once again the submissions of Mr Ram are creative and logical and in their way are persuasive. However I believe the question must be decided in concordance with the reasoning in an earlier judgment of this Court upon which Mr Tuitoga relies. Had this case being cited to me at the hearing I should have felt bound to adopt its reasoning.

This is the judgment in Murtaza Khan –v- Reginam 11 FLR 161, Judgment 5 August 1965. That was a case in the Criminal Jurisdiction but I accept Mr Tuitoga’s submission that it decided the point that is presently before me. In that case a driver accepted money from persons whom he had picked up and carried as passengers. He was charged with using the vehicle as a motor vehicle of a Class for which a hire license fee is payable and with using the vehicle when uninsured. The driver admitted that the vehicle was licensed as a private car. In the judgment the Court [Mills-Owens CJ] discussed Wyatt –v- Guildhall Insurance Company (1937) 1All ER 792, the only case to which I had been referred before my interim judgment. From that discussion and from the submissions of Mr Tuitoga I am satisfied that the van in the present case is not to be included within the statutory class “passenger vehicle” as used in the Act, Cap 177. I am satisfied that the definition is intended to include vehicles designed and used for carrying passengers, as distinct from cars used privately. I accept the concluding submission of Mr Tuitoga that the act is intended to compel the insurance of passengers carried in public service vehicles but does not compel the insurance of passengers carried in private motor vehicles being used outside their normal domestic use.

I therefore decide this claim by giving judgment for the Defendant.

Costs would normally follow the event but I doubt whether the Plaintiff has the means for a substantial payment. In any event the issue was of considerable public importance and I think costs should lie where they fall. I make no order.

D.D. Finnigan
JUDGE

At Lautoka
05 August 2005