SC681

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No. 113 of 1999

BETWEEN:

SAKAIRE AMBO
Appellant

AND:

MOTOR VEHICLES INSURANCE (PNG) TRUST
Respondent

Waigani:	Kapi DCJ., Sawong J., Davani J.
25th April, 3rd May 2002

Limitation of Actions – Death due to Motor Vehicle Accident – No time limitation under Motor Vehicle (Third Party Insurance) Act Ch 295 – Whether Wrongs (Miscellaneous Provisions) Act Ch 297 applies, or the Frauds and Limitation Act 1988 apply.

Counsel:
P. Ame for the appellant
D. Gedare for the respondent

3rd May 2002

By The Court:	This is an appeal from a decision of the National Court. 

In the Court below, the appellant filed a writ of summons on 6th November 1998 for a claim for damages for death arising out of a motor vehicle accident which occurred on 25th June 1995 on Gavamani Road in the National Capital District. 

The respondent filed a motion to dismiss the action on the basis that it was statute barred under s 31 of the Wrongs (Miscellaneous Provisions) Act (Ch 297) which reads;

"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."

In opposing the motion in the National Court, counsel for the appellant argued that limitation of action for damages for deaths arising out of a motor vehicle accident should be regulated by s 16 (1) of the Frauds and Limitations Act 1988 (Act No. 3 of 1988):

"(1)	Subject to Sections 17 and 18, an action –
(a)	that is founded on simple contract or on 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."

The trial judge concluded that the provisions of the Wrongs (Miscellaneous Provisions) Act regulate actions for damages arising out of motor vehicle accidents and found that the action was statute barred and dismissed it.

We have to determine whether claims for damages for deaths arising ojut of a motor vehicle accident is regulated by Wrongs (Miscellaneous Provisions) Act or the provisions of Frauds and Limitations Act 1988?

In resolving this issue the trial judge concluded:

"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 pursuant 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 Miscellaneous Provisions Act. Section 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 Vehicles (Third Party Insurance) Act. Again, that provision provides a nexus, between the two 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."

In addition to the above, s 34(6) of the Wrongs (Miscellaneous Provisions) Act confirms that the Motor Vehicles Insurance (PNG) Trust shall be deemed to be the fort-feasor in respect of deaths or bodily injuries. It reads;

Part VIII – Tort-feasors

"37. Proceedings against, and contribution between, joint and several fort-feasors.

……………………….

(6)	In a case referred to in s 54 of the Motor Vehicles (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;

(b)	to be responsible for the damage to the same extent as the insured person would have been held to be responsible if sued."

These provisions confirm that in any claim where a death has or deaths have occurred in a motor vehicle accident, the relevant Act on which to rely on is the Wrongs (Miscellaneous Provisions) Act. Section 16(1(a) of the Frauds and Limitations Act speaks of actions founded " … on simple contract or on tort". In this case, the action the appellant has before this Court is a claim for damages as a result of a death in a motor vehicle accident. This action is governed by statute, in this case the Wrongs (Miscellaneous Provisions) Act. The appellant is asking this Court to treat this claim as an action at common law in order to attract the application of s (16(1)(a) of Fraud and Limitations Act. We cannot accept this argument. This is an action based on statute. Under schedule 2.2 of the Constitution, common law will be adopted and applied as part of the underlying law only if it is not inconsistent with a statute. In this case the cause of action is governed by Wrongs (Miscellaneous Provisions) Act and s 31 stipulates the limitation period.

The National Court in an earlier decision reached the same conclusion in Susana Lipai & Others v MVIT [1996] PNGLR 363. Counsel for the appellant has not referred us to any authority to convince us that these decisions are wrong. In our view the two decisions have decided the issue correctly and should be upheld.

We would dismiss the appeal with costs to the respondent.
___________________________________________________________
Lawyers for the Appellant	:	AME LAWYERS
Lawyers for the Respondent	:	MIRUPASI LAWYERS