N2162

PAPUA NEW GUINEA

[In the National Court of Justice ]

WS 1111 of 1998

BETWEEN

SAKAIRE AMBO
Plaintiff

AND

MOTOR VEHICLES INSURANCE (PNG) TRUST
Defendant

Waigani	:	Sevua, J
4th August & 21st October, 1999

PRACTICE and PROCEDURE – Application to dismiss claim on being statute, barred – Claims under Motor Vehicles (Third Party Insurance) Act, Ch 295 – Claims and action for damages in respect of death of, or bodily injuries arising out of the use of a motor vehicle.

LIMITATION OF ACTION – Death arose from injuries sustained in motor vehicle accident – Where death results from negligent driving – Tort – Whether s.37 Wrongs Miscellaneous Provisions Act applies – Whether Wrongs Miscellaneous Provisions Act or Frauds and Limitations Act applies.

Held:

1.	Where a person sues for damages in respect of a claim pursuant to s.54 of Motors Vehicles (Third Party Insurance) Act, the time limit applicable is three (3) years, pursuant to s.31 of Wrongs Miscellaneous Provisions Act.

2.	A claim or action for damages in respect of the death of, or bodily injuries caused to a person by or arising out of the use of a motor vehicle is a claim for damages under the Wrongs Miscellaneous Provisions Act.

Cases cited:
Susan Lipai & Ors v. Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 363.

Counsel:
Mr P. Ame for Plaintiff
Ms D. Gedare for Defendant

21st October, 1999

SEVUA, J:	By way of a Notice of Motion, the defendant sought an order pursuant to Order 12 Rule 14 that the proceedings be dismissed and a further order for costs.

The plaintiff is the elder brother of the deceased, Steven Ambo, who died from injuries sustained in a motor vehicle accident, which occurred on 25th June, 1995 on Gavamani Road in the National Capital District. The writ of summons was filed on 6th November, 1998, a little over three years and four months from the date of accident and consequent death of the plaintiff’s brother.

There are two issues in this application. Firstly, whether the claim is statute barred and secondly, whether the provisions of Wrongs Miscellaneous Provisions Act or Statute of Fraud and Limitation Act apply in a claim under Section 54 of Motor Vehicles (Third Party Insurance) Act. However, there is another issue, which I think is equally of importance here. The plaintiff is not suing as the personal customary representative of the deceased. If he is, that fact is not pleaded in the writ. The writ does not plead that the proceedings were brought by the estate of the deceased. Therefore, one should ask what right the plaintiff has to bring this suit. In spite of the fact that the plaintiff may be the brother of the deceased as pleaded, what is his status in brining this claim, and what right of audience does he have before this Court? Both counsel have not addressed the Court on this issue, and therefore it is perhaps premature to express an opinion on it. However, I consider that the plaintiff is not the deceased person, nor is he bringing this action in any other capacity not specified in the writ. Accordingly as it is, I am of the view that he has no locus standi in this action.

In order to determine the first issue, the second issue must be resolved first. The defendant submitted that the proceedings were filed out of time in contravention of the Wrongs Miscellaneous Provisions Act, Chapter 297. Therefore, the claim is statute barred and should be dismissed. The plaintiff on the contrary submitted that the claim is not statute barred as it is not subject to the time limitation in the Wrongs Miscellaneous Provisions Act, but subject to the Statute of Fraud and Limitation Act. The plaintiff argued that the Statute of Fraud and Limitation Act applies, thus by virtue of Section 16(1)(a) of that Act, this action is within the six years time limit stipulated therein. The plaintiff also submitted that the plaintiff’s cause of action is in tort, i.e., the tort of negligence therefore covered by that provision.

The National Court had on one occasion considered a similar case in Susana Lipai & Ors v. MVIT [1996] PNGLR 363. The issue in that case was whether the claim was statute barred. Salika, J had the opportunity of considering whether the Wrongs Miscellaneous Provisions Act apply or the Statute of Fraud and Limitations Act apply. His Honour accepted the defendant’s submission in that case and held that the Wrongs Miscellaneous Provisions Act was the appropriate legislation in claims in respect of Section 54(6) of the Motor Vehicle (Third Party) Insurance Act. Therefore, claims for death arising out of the use of motor vehicles must be made within three years after such death.

Mr Ame for the plaintiff has urged this Court not to follow that decision on the basis that pursuant to Schedule 2.9 of the Constitution, the National Court is not bound by its own decision. Whilst I appreciate the significance of that Constitutional provision, I consider that the plaintiff has failed to advance any sensible submissions for this Court’s consideration. Part 8 of the Wrongs Miscellaneous Provisions Act deals with tortfeasors. Section 37(6) of that Act specifically refers to Section 54 of the Motor Vehicles (Third Party) Insurance Act, and provides that the Trust shall be deemed to be a tortfeasor in relation to the death of, or bodily injury under that Part. Section 54 of the Motor Vehicles (Third Party) Insurance Act deals with claims and actions for damages in respect of the death of, or bodily injuries arising out of the use of a motor vehicle. That is the nexus between the two legislations. I do not accept the plaintiff’s submission that the Frauds and Limitations Act 1998 applies, because simply there is no connection between that legislation and the Motor Vehicle (Third Party) Insurance Act.

I consider that a strict and correct observation is that the plaintiff in this case should have been the widow, Kuringin Ambo, and in the statement of claim a proper pleading should have included a claim under the Wrongs Miscellaneous Provisions Act. I cannot think of any other legislation other than the Wrongs Miscellaneous Provisions Act which the dependants of a deceased can bring an action as a claim for damages in respect of the death of, or bodily injury caused by or arising out of the use of a motor vehicle. In my view, the appropriate legislation to be pleaded apart from any reference to the Motor Vehicles (Third Party) Insurance Act is the Wrongs Miscellaneous Provisions Act. In my view, the death of a person as a result of injuries sustained in a motor vehicle accident caused by the negligence of a driver is a tort and that tort is covered by Section 37 of the Wrongs Miscellaneous Provisions Act, not the Frauds and Limitations Act 1988. The plaintiff’s submission is a mere proposition, not supported by any persuasive or convincing authority.

I would therefore propose the following to be the law in resolving a dispute in a claim such as the present one where one party relies on the time limit in the Frauds and Limitations Act 1988, and the other party relies on the time limit in the Wrongs Miscellaneous Provisions Act. I hold that in any legal proceedings where a person sues for damages in respect of a claim pursuant to Section 54 of the Motor Vehicles (Third Party Insurance) Act, the statutory time limit applicable is three years in pursuance of Section 31 of the Wrongs Miscellaneous Provisions Act. A claim or action for damages in respect of the death of, or bodily injury caused to a person by or arising out of the use of a motor vehicle is a claim for damages under the Wrongs Miscellaneous Provisions Act. Section 31 of the Wrongs Miscellaneous Provisions Act defines third party policy as a policy of insurance that is a third party policy within the meaning of the Motor Vehicles (Third Party) Insurance Act. Again, that provision provides a nexus, between the two legislations. Therefore, there can be no doubt in anyone’s mind that in a suit for damages for death or personal injury arising out of a motor vehicle accident, the suit is brought under the Wrongs Miscellaneous Provisions Act.

Consequently, the time limit under Section 31 of that Act applies to any such suit. I can say from my own experience that all suits for damages in respect of death, personal injuries, dependency claims and infant settlements arising out of a motor vehicle accident have always been brought under the former Law Reform Miscellaneous Provisions Act, and presently, the Wrongs Miscellaneous Provisions Act. I have never come across any such proceedings brought under the former Statute of Frauds and Limitations Act, now the Frauds and Limitation Act, both as a practitioner and a Judge.

In my view, the plaintiff’s submission is not only spurious, but ludicrous as well. For reasons that I have adverted to, it is my judgment that the plaintiff’s claim is statute barred by operation of Section 31 of the Wrongs Miscellaneous Provisions Act, and the defendant’s application is upheld.

Accordingly, the orders of this Court are that the whole proceedings be dismissed, and the plaintiff pays the defendant’s costs.
_____________________________________________________________________
Lawyer for the Plaintiff	:	Ame Lawyers
Lawyer for the Defendant	:	Mirupasi Lawyers