N7813
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 445 of 2017

BETWEEN:
MAYBLE REDDY 
First Plaintiff 

AND:
LOISA REDDY 
Second Plaintiff

AND:
AUSTIN REDDY 
Third Plaintiff

AND:
JOSINA REDDY
Fourth Plaintiff

AND: 
BENJAMIN REDDY
Fifth Plaintiff

AND:
JOSHUA REDDY by his Next Friend
Sixth Plaintiff

AND:
IGUA BUCKLY PASSINGAN
Defendant

Kavieng: Kangwia J
2018: 23 November &
2019: 19 March

NEGLIGENCE - Claim out of death from motor vehicle collision – Application for default judgement – Objection as statute barred under frauds and Limitations Act
NEGLIGENCE - Claims for negligence out of death from motor vehicle collisions now displaced and guided by Wrongs (Miscellaneous Provisions) Act and not under Statute of Frauds and Limitations Act – 

CLAIMS AGAINST MVIL - Claims to be against MVIL as insurer and not against insured personally- Insured sued without insurer-Three years’ time limit prescribed under Wrongs (Miscellaneous Provisions) Act-Claim statute barred – Claim dismissed – Each party to bear own costs.  

Cases Cited:  

Sakaire Ambo v MVIT (2002) SC681 
Susanna Lipai v MVIT (1996) N1421

Counsel:

M. Maraleu, for the Plaintiffs
M. Mumure, for the Defendant

19th March, 2019

1.	KANGWIA J; There are two motions before this Court. In the first motion the Plaintiffs moved for default judgement for failing to file a notice of intention to defend or a defence since the writ of summons was served on him personally at his house on 28 April 2017. 

2.	When the first motion was to be heard the Defendant hastily filed a motion and moved for the dismissal of the Plaintiffs motion as an abuse of process pursuant to Order 12 rule 40 (1) (c) of the National Court Rules on the basis that the cause of action was statute barred since it was laid seven years after the cause of action ensued.

3.	Both motions were heard together. 

4.	The undisputed facts leading to the claim are briefly these. The Plaintiffs are the children of the deceased husband and wife who died in a vehicle collision along the Buluminski highway on 27 April 2011. The Plaintiffs father (now deceased) was the driver of one of the vehicles involved in the collision.

5.	The Defendant was the driver of the other vehicle. The deaths of the Plaintiffs parents were instantaneous. 

6.	By a writ of summons dated 27 April 2017 the Plaintiffs claimed K848, 920 00 plus costs and 8% interest against the Defendant as damages under the following headings;

1. Damages for increased risk of orphanhood	-K48, 000. 00
2. Damages for loss of dependency		  	-K712, 000. 00
3. Damages for loss of parents’ extra services	-K13, 520. 00
4. Exemplary damages					-K25, 000. 0	0
5. Estate claim						-K50, 000. 00

							Total: K848, 920. 00

7.	Since the Defendants motion on the issue of statute bar relates to the jurisdiction of the Court it will be considered first. The ruling on that issue will determine whether default judgement can be entered.

8.	It was the defence submission that defaults was not denied. They submitted that the Court cannot entertain the application for default judgement on a claim that was bad in law. It was submitted that the time limit for claims arising out of a death in a motor vehicle mishap was three years under the Frauds and Limitations Act 1988. The present claim was brought seven years after the deaths and the plaintiffs have lost their right to claim and therefore it should be dismissed. They relied on the affidavit of the defendant which stated that the claim was laid seven years after the death from the car accident. It was further deposed that the notice of intention to defend could not be filed because his lawyer was attending a Court circuit at Namatanai. 

9.	It was further submitted that even if there was a default on the part of the defendant it did not follow that a default judgement is entered as the claim was initially statute barred. It was stressed that even though the defence defaulted they were entitled to apply anytime when a claim was bad as in the present case and therefore the claim should be dismissed. 

10.	For the Plaintiffs Mr Maraleu submitted that the Defendant’s application was belated. The summons was served on 28 April 2017 which was over a year ago but the Defendant did nothing until today being 23 November 2018 to raise the defence.

11.	It was further submitted that the delay in the claim was caused by the ignorance of the Plaintiffs who were of tender age at the time their parents died in the vehicle collision and they could not obtain any legal service. The criminal case against the Defendant was also pending and the claim could not be instituted without any legal service. The discretion of the Court was sought to enter default judgement despite the delay given the circumstances under which the Plaintiffs were in, where the Plaintiffs lost both parents when they were at a tender age and could not obtain the services of a lawyer.  

12.	It was also argued that the delay in the current proceeding was not caused by the Plaintiffs. The Defendant did not plead the Statute of Frauds and Limitations Act early and delayed the proceedings by more than a year. Default judgement should be entered in the exercise of discretion. 

13.	At the outset I consider that it is tantamount to an abuse of process on the part of the defendant not to raise earlier, the issue of statute bar and to acquiesce in having the case set for default judgement and then raise it as a preliminary matter at the time of trial. His reason of his lawyer attending a Court circuit in Namatanai as the cause for his delay is shallow and baseless. The circuits to Namatanai are not held for more than one year. On that basis the defendant would be deemed to have waived his right to defend the action.

14.	There seems to be present a confusion as to the time limitations prescribed for bringing an action in damages over deaths arising out of a motor vehicle collision. 

15.	The Plaintiffs have taken no issue with Mr Mumure’s submission that the time limit for instituting claims for deaths arising out of vehicle mishaps was three years under the Frauds and Limitations Act 1988. From my small research Mr Mumure’s submission has no basis. 

16.	A time limit of three years is prescribed under s 31 of the Wrongs (Miscellaneous Provisions) Act Chapter 297 and is in the following terms;

31. Limitations of actions under Part IV

Only one action under this part lies for and in respect of the same subject-matter of complaint, and every such action must be commenced within three years after the death of the deceased person.

17.	The law under s. 31 the Wrongs (Miscellaneous Provisions) Act Chapter 297 is clear as to time; that a person making a claim arising out of a death must do so within three years. It is in strong persuasive terms with the use of the word “must” in the provision.

18.	In the present case since the cause of action accrued on 27 April 2011 the period for making the claim would have lapsed three years later on 27 April 2014. It is apparent that the Plaintiffs claim did not meet the time requirements under s 31 of the Wrongs (Miscellaneous Provisions) Act. Therefore, the Plaintiffs claim is statute barred pursuant to the Wrongs (Miscellaneous Provisions) Act.

19.	The next question that arises is whether the claim was made within the prescribed statutory time limit under the Statute of Frauds and Limitations Act 1988. 

20.	The law guiding time limits for bringing an action founded on simple contract or tort is governed by s16 of the Statue of Frauds and Limitations Act. The relevant parts of s16 are as follows:

16. Limitation of actions in contract and tort

(1) Subject to s 17 and 18, an action -
(a) that is founded on simple contract or tort;
(b)…
(c)…
(d)…

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

21.	This provision is also in mandatory terms. It makes provision for claims to be made within six years from the date on which the cause of action accrued. 

In the present case the cause of action accrued on 27 April 2011and the six-year time limit lapsed on 27 April 2017. The plaintiffs claim in the Writ of Summons was filed in the Kavieng National Court Registry on 27 April 2017 which in my view is the 6th anniversary of the date the cause of action accrued.

22.	Therefore, pursuant to s 16 of the Frauds and Limitations Act 1988 the claim was not statute barred. 

23.	Having drawn the conclusions on the statutory time limitations under the two legislations the question is whether the Plaintiffs claim is brought under the Wrongs (Miscellaneous Provisions) Act or the Frauds and Limitations Act as none of the two laws have been pleaded in the statement of claim.

24.	From a perusal of the claim it is obvious that the Plaintiffs sued for negligence or the wrongful conduct of the defendant presumably based on the common law principle of independent discretion rule which claims are subject to the Frauds and Limitations Act. That rule stipulated that any action taken by a defendant in his own discretion in the commission of wrongful conduct was his own and would be sued in person and bear the consequences himself. 

25.	That rule is no longer applicable in this country. It was totally displaced by specific statutes. As a result, all claims arising out of a death or bodily injury sustained in the use of a motor vehicle are now governed by statute. 

26.	For a start the Motor Vehicle (Third Party Insurance) Act Chapter 295 under s 54 makes it mandatory for Motor Vehicle Insurance Limited (MVIL) as Successor Company to give insurance cover against liability of owners and drivers of motor vehicles in respect of deaths or personal injury to persons caused by or arising out of the use of motor vehicles. 

27.	The relevant parts of this section provide as follows:

S. 54 Claims for damages

(1) Subject to sub section (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) motor vehicle insured under this Act; or 
	(b) an uninsured motor vehicle in a public street; or
	(c) …

Shall be made against the successor company and not against the owner or driver of the motor vehicle.

28.	This provision makes MVIL the tortfeasor or (wrong doer). The Act imposes a duty on MVIL to assume the role of the wrongdoer in place of the driver or owner. Therefore, claims for wrongs under the Motor Vehicle (Third Party Insurance) Act must be made against the MVIL as the wrongdoer and not against the driver or owner of the vehicle. 

29.	There is ample authority on the question of whether claims for damages for deaths arising out of a motor vehicle accident were regulated by the Wrongs (Miscellaneous Provisions) Act or the Frauds and Limitation Act. 

30.	The Supreme Court in the case of Sakaire v MVIT (2002) SC681 in determining whether claims for damages for deaths out of a motor vehicle accident were regulated by the Wrongs (Miscellaneous Provisions) Act or Frauds and Limitations Act, affirmed and adopted as the correct position in law what the National Court said in that case which are as follows:

“I hold that in any legal proceedings where a person sues for damages in respect of a claim pursuant to s 54 of the Motor Vehicle (Third Party Insurance) Act Ch. 295, the statutory time limit applicable is three years pursuant to s31 of the Wrongs (Miscellaneous provisions) Act.
 A claim or action for damages in respect of the death 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. S 31 of the Wrongs (Miscellaneous Provisions) Act defined third party policy of insurance that is a third-party policy within the meaning of the Motor Vehicle (Third Party Insurance) Act. Again, that provision provides a nexus between the two pieces of legislation. 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. “

31.	The wrongs committed under the Motor Vehicle (Third party Insurance) Act are wrongs that are regulated and dealt with under the Wrongs (Miscellaneous Provisions) Act and not the Frauds and Limitations Act. (See Susanna Lipai v MVIT (1996) N1421).

32.	There is no time limit under the Motor Vehicle (Third Party Insurance) Act. 

33.	However, pursuant to s 31 of the Wrongs (Miscellaneous Provisions) Act claims for wrongs must be made within three years. 

34.	There is no evidence that the Plaintiffs made any claim to the MVIL as the tortfeasor. If they did make a claim against the MVIL no claim would lie against the defendant as being statute barred. 

35.	In like manner no claim lies against the defendant in person as the driver of the other vehicle as it is not permitted by s54 of the Motor Vehicle (Third Party Insurance) Act. Secondly the claim against the defendant is also statute barred under s31 of the Wrongs (Miscellaneous Provisions) Act.  

36.	All in all, the time limitation under the Wrongs (Miscellaneous Provisions) Act had lapsed. The Plaintiffs therefore have lost their right to claim under the Wrongs (Miscellaneous Provisions) Act. There is no provision under that Act which permits any possible extension of time to lay a claim from the stipulated time limit. I have not been referred to any case precedent where the Court extended the time period for making a claim after the lapse of the 03-year time limitation.

37.	In the present case according to the Plaintiffs affidavits the deaths occurred on 27 April 2011. The writ of summons was filed on 27 April 2017 which is exactly the sixth anniversary of the date on which the cause of action arose. The claim could be deemed as within time under the Frauds and Limitations Act. 

38.	Be that as it may, the claim arising out of a death from a motor vehicle accident cannot be brought under the Frauds and Limitations Act as such claims are regulated by and enforceable under the Wrongs (Miscellaneous Provisions) Act. 

39.	The Plaintiffs claim as it is, cannot be sustained as they failed to comply with the statutory requirements under the Wrongs (Miscellaneous Provisions) Act. The claim is against the wrong person and statute barred. 

Formal Orders;

1.	The case is dismissed as being statute barred and an abuse of process.
2.	Application for default judgement is refused
3.  Each party shall bear their own costs.
________________________________________________________________
Maraleu Lawyers: Lawyers for the Plaintiff      
Public Solicitor: Lawyers for the Defendants