N876

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

REVIT MANGOI

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

22 May 1990
24 July 1990

INSURANCE - Motor vehicle third party insurance - Unidentified motor vehicle - Due inquiry and search - Precondition to claim - Proof of - What objectively reasonable in circumstances - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(1).

NEGLIGENCE - Motor vehicle accidents - Claims for damages - Unidentified motor vehicle - Due inquiry and search - Precondition to claim - Proof of - What objectively reasonable in circumstances - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(1).

The Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(1), provides:

"54(1) 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 Trust."

Held:

(1) Proof of due inquiry and search is a precondition to a claim based on s 54(1)(c).

(2) "Due inquiry and search" must be made at the time of the accident or soon thereafter and means such inquiry and search as is objectively reasonable in the circumstances.

Blandford v Fox (1944) 45 SR (NSW) 241; Cavanagh v Nominal Defendant (1959) 100 CLR 375 and Edwards v Nominal Defendant [1968] 2 NSWR 585, adopted and applied.

(3) Inquiries made of a police officer some five years after an accident did not constitute due inquiry and search.

Cases Cited

The following cases are cited in the judgment:

Blandford v Fox (1944) 45 SR (NSW) 241.
Cavanagh v Nominal Defendant (1959) 100 CLR 375.
Edwards v Nominal Defendant [1968] 2 NSWR 585.

Statement of Claim

This was a claim for damages for personal injuries arising out of a motor vehicle accident, the claim being brought under s 54(1)(c) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295).

Counsel:

D L O’Connor with J Hasu, for the plaintiff.
R Thompson, for the defendant.
Cur adv vult

24 July 1990

WOODS J.: The plaintiff claims he was injured on 1 November 1982 when he was driving a Ford motor tractor which was forced off the road by the negligent driving of a yellow Toyota landcruiser along the Wapenamanda-Wabag road near Yaibos. The plaintiff claims that the identity of the latter vehicle cannot after due inquiry and search be established and the claim is therefore brought against the Motor Vehicles Insurance (PNG) Trust by virtue of s 54 (1)(c) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295). This section reads as follows:

"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 Trust."

To succeed in his claim against the Trust the plaintiff must first satisfy the court that due inquiry and search has been made. The Trust submits that on the evidence before me there has been no due inquiry and search therefore there can be no claim against the Trust.

The evidence before me is first, from the plaintiff that he was knocked unconscious when the tractor overturned and he woke up in hospital. He spent some two months in hospital. He gives no evidence of making any inquiries or search for what I can only note as an obviously prominent vehicle, namely a yellow Toyota landcruiser. The plaintiff appears to have consulted a lawyer in about 1987, some five years after the accident.

Five witnesses gave evidence of being in the vicinity of the incident and seeing the yellow Toyota landcruiser but none were able to help with identifying the landcruiser, none recalled any part of the number plate, nor saw nor identified the driver. None of the witnesses helped in any search or inquiry for the identification of the vehicle.

An affidavit from a policeman Andrew Dedenga was tendered which deposed that in November 1987 he was requested to assist in identifying the yellow vehicle involved in the incident on 1 November 1982. He states he was unsuccessful in any investigation but he does not say what he actually did to try and find the vehicle. No reference is made to any police report of the accident.

So what inquiry and search do we have — merely a request to a policeman in 1987.

There is no disputing that an accident may have occurred, we have a number of eye witnesses. But that is not the point here. You must have a defendant and where the defendant is unidentified then you can only have a defendant by virtue of s 54 (1)(c).

The plaintiff submits that due inquiry and search as required has been made and satisfied by asking a policeman some five years after the incident. The evidence of the witnesses has nothing to do with any inquiry and search; it is purely what they saw at the scene.

The section says "due inquiry and search" — "due" must mean at the time or soon thereafter and not by asking a policeman five years later. A yellow Toyota landcruiser is not an inconspicuous vehicle. What sort of yellow? Many government vehicles are a kind of yellow so it could have been very easy to have ascertained whether a Government vehicle of that style was driving along the road that day. People in Papua New Guinea are very quick to identify or try and identify vehicles that have caused damage — yet the plaintiff in the case seems to have taken an unusually casual approach to the offending vehicle.

In Blandford v Fox (1944) 45 SR (NSW) 241 at 245 the Court of Appeal said that:

"[D]ue inquiry and search means such inquiry and search as is reasonable in the circumstances. To be reasonable it must be as prompt and thorough as the circumstances will permit. It must be such as a reasonable man who had recourse only against the actual offender would make if he were desirous of identifying the offender in order to commence proceedings against him. The inquiries must if possible be set on foot before the scent is cold and they must be made by all means as are reasonably practicable in all quarters in which there is a reasonable prospect of obtaining useful information."

In Cavanagh v Nominal Defendant (1959) 100 CLR 375, the High Court clarified the requirement as to the amount of knowledge required to trace the identity of the offending vehicle:

"The section requires a plaintiff to show that no sufficient knowledge of the identity of such vehicle has come home to him or to his servants or agents or to those for whom he is vicariously responsible notwithstanding that all such measures as were reasonable in the circumstances having regard to his situation were taken by him or them to ascertain it."

In Edwards v Nominal Defendant [1968] 2 NSWR 585, the plaintiff failed to make any inquiry to identify the offending vehicle for some four months after the incident and stated she did not know of the existence of the Nominal Defendant. Herron CJ said (at 588):

"The requirement of due inquiry and search is an objective standard to this extent, that an injured claimant cannot decide for himself or herself that as an inquiry or search would probably be fruitless none need be made. The Act provides that an inquiry and search must be made and it must be ‘due’, that is reasonable in the circumstances. A decision not to make any such inquiry is not open to an injured person."

Asprey JA said (at 590):

"The test of whether due inquiry and search was made in the particular circumstances of any case is what a reasonable person ought to have done in those circumstances. That is an objective test and not a subjective one.

Thus the plaintiff cannot say: ‘I did not think any inquiry at all was worthwhile’, or: ‘I did not know what I had to do’, or as in effect was the case here: ‘I did not appreciate what my legal rights were’."

In the case before me the plaintiff did nothing for some years. Whilst he may not have known his rights under the Motor Vehicles (Third Party Insurance) Act he appears to have failed to act, as any reasonable, Papua New Guinean would act, namely, to look for the vehicle and claim compensation. I have already said that a yellow Toyota landcruiser would not be an inconsequential vehicle along that road. I find that the statements quoted above, although from another country, are quite applicable in the circumstances here in Papua New Guinea where people are very conscious of and quick to consider compensation.

The plaintiff has made no due inquiry and search and thus does not come within s 54(1)(c).

I dismiss the claim.

Action dismissed

_________________

Lawyers for plaintiff: O’Connor & Hasu.
Lawyers for defendant: Young & Williams.