SC799

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO.108 OF 2002

BETWEEN:

MOTOR VEHICLE INSURANCE LIMITED
-Appellant-

AND:

HILDA POJARI
-Respondent-

WAIGANI: Hinchliffe, Kirriwom & Mogish, JJ.
2004: 29 April 
2005: 2nd September

PRACTICE AND PROCEDURE – Dependency Claim under Motor Vehicle (Third Party Insurance) Act Ch.295 – Requirement to give Notice of Intended Action under s.54(6) – No formal Notice Given - What Constitutes Notice Where No Notice Given – Evidence of Correspondences and Basic Protection Compensation Payment – Trust Had Knowledge of Claim – Sufficient Evidence of Notice

LIABILITY – Contributory Negligence – Deceased riding as passenger on motor cycle without wearing safety helmet – Both deceased and driver of motor cycle had been drinking alcohol prior to the journey – Excessive speed and mismanagement of motor cycle resulting in skid and overturn – Knowledge of risk factor much higher compared with riding on conventional four-wheeled motor vehicle – Voluntary assumption of risk – Deceased contributed to his own misfortune - Apportion liability at 30% against the deceased.

Deceased and another were drinking in club and a fight erupted. They jumped on his friend’s motor cycle and left the club. The deceased was not wearing any helmet and headed for the village along Kokoda Road. The motor cycle skidded on loose gravel and overturned. Deceased sustained serious injuries from which he died upon admission at the hospital.

Third party basic protection compensation was paid. Thereafter the estate through the legal representatives commenced negotiations for damages on behalf of widow and other dependents with the trust. No specific ‘notice’ was given to the Trust of dependents intention to claim against the Trust. Legal representatives seemingly perceived ‘correspondences and payment of third party basic protection compensation payment’ as adequate acceptance of fact of claim against the Trust.

There were two issues in the National Court. One was that the claim was bad as it failed to conform with the mandatory requirement to give notice under section 54(6) of the Motor Vehicles (Third Party Insurance ) Act Ch. 295 and secondly the deceased ought to be held liable for his own misfortune because he undertook this perilous journey knowing full well that it was quite risky getting lift or riding as passenger on two-wheeled motor vehicle while he and the driver had some alcohol to drink and himself not being protected by a safety helmet. The trial judge found in favour of the plaintiff and held that correspondence between the parties and payment of basic protection compensation was deemed evidence of notice for purpose of section 54(6) and found the deceased liable of 10% contributory negligence for not wearing a helmet. The defendant Motor Vehicle Insurance Limited appealed.

The issues in this appeal are:

(1)	Whether the trial judge erred in concluding or holding that the correspondence and payment of basic protection compensation as evidence amounting to notice for purpose of section 54(6) of the Act?

(2)	Whether the trial judge erred in finding or holding the deceased liable of only 10% contributory negligence when given the facts and the circumstances of the case, liability should have been apportioned fifty-fifty? 

Held: (dismissing the appeal and upholding it in part) (Hinchliffe, J dissenting)

1.	The trial judge fell into no error when he accepted the fact that the parties were in correspondence on the matter and basic protection compensation had been paid as evidence constituting ‘notice’ for purposes of section 54(6) of Motor Vehicles (Third Party Insurance) Act Ch. 295.

2.	The trial judge’s ruling was consistent with the more ‘liberal and purposive’ interpretation of section 54(6) of the Act. Stanley Tendi v MVIT [1996] PNGLR 379 approved and followed.

3.	The trial judge erred in not properly analysing the evidence and assessing the deceased’s own culpability in terms of his voluntary assuming of risk while undertaking the journey in the condition they both were in on an unconventional two-wheeled motor vehicle that posed much greater risk of danger considering the time and other factors against them apart from not wearing a helmet.

Cases cited or referred to:
Rundle v MVIT [1988] PNGLR 20
Joy Kawai An Infant By Her next Friend Kawai Takame v Motor Vehicle Insurance (PNG) Trust [1998] Unreported Supreme Court Judgment SC588
Stanley Tendi v MVIT [1996] PNGLR 379

Counsel:
M. Titus for the Appellants
R. Uware for the Respondent

DECISION
2ND September 2005

Kirriwom & Mogish, JJ: This is an appeal against the decision of the National Court delivered on 28th October 2002 where the trial judge held that there was appropriate notice given under section 54(6) of the Motor Vehicles (Third Party Insurance) Act Ch 295 despite argument to the contrary and further apportioned contributory negligence in the ratio of 10% against the Respondent and 90% against the Appellant, thereby awarding general damages in the sum of K30,326.00.

The appellant was aggrieved by this decision and appealed. There are essentially two grounds of appeal:

1.	The trial judge erred in holding that there was notice given under section 54(6) when there was no evidence of any such notice being given at all;

2.	The trial judge erred in awarding contributory negligence in the ratio of 10:90 in favour of the Respondent. 

Circumstances giving rise to this claim: Facts

The respondent in this case is the wife/widow of the deceased Mark Pojari who was a passenger on a motor vehicle registered under the Motor Vehicle (Third Party Insurance) Act Ch.265 (hereafter “the Act”) that was involved in an accident on 19th April 1996 at or around 8:30pm.

It is alleged that sometime before the accident the deceased Mark Pojari and the driver of the motor vehicle Kevin Mark were seen drinking beer together at Kanaka Club. The motor vehicle referred to was a motor cycle registration number Honda CT125 A524 owned by the said Kevin Mark. A fight broke out in the club and Mark Pojari and Kevin Mark got on the motor cycle with Kevin Mark driving while the deceased riding on the back with both his hands clasped tightly around the driver took off for their village along the Kokoda Road. Near Kamusi Timbers the motor cycle skidded or slid off the road and threw out both its riders from which the deceased sustained injuries. He died on arrival at the hospital. 

Information obtained from the Police Accident Report shows that the driver held only a provisional licence and the deceased was not wearing a helmet at the time of the accident. 
 
The appellant is a statutory creature mandated by law to receive, process and pay claims arising under the Motor Vehicles (Third Part Insurance) Act 1974 for deaths or personal injuries associated with or arising out of motor vehicle accident claims. See section 54(1) of the Act. In order for a claim to be received and processed by the appellant MVIL there is, what has been described as ‘a condition precedent’ or mandatory requirement to give notice to the Trust of an intended claim within a specific time frame, which is six months, following the motor vehicle accident that either caused the injury to the claimant or death of the deceased. 

The trial judge apportioned 10% contributory negligence on the deceased’s part for not wearing a helmet without giving much or real consideration to other factors such as the deceased’s own moral blameworthiness of exposing himself to the risk of riding on an unconventional two-wheeled motor vehicle at night under trying conditions given both state of sobriety. 

The appellant’s case was pursued on the basis that it was not liable under the Act to the respondent because the respondent did not comply with the requirement of the law to give notice. Alternatively, there must be 50% contributory negligence apportioned between the driver and the back rider because the deceased voluntarily took the risk of riding on the back of the motor bike when he was under influence of alcohol himself, he knew the driver was also under the influence of alcohol and probably might have known that the driver was an inexperienced driver with only a provisional licence if they were from the same village and there was no protective helmet for him to wear; yet he allowed himself to ride on that bike in total defiance of the law against riding without wearing protective helmet and riding exposed whilst under the influence of liquor. 

For purpose of this appeal, these are the two issues that are before this court for determination. If the court upholds the appeal on the first, that is the end of the matter. However if the court accepts the respondent’s argument on the purposive and liberal approach to the interpretation and application of the law as stipulated in section 54(6) of the Act and rejects the appellant’s argument, the next issue for determination is whether the apportionment of contributory negligence ought to be 50:50? 

Requirement to Give Notice Under Section 54(6)

Section 54 of the Act provides:

“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 successor company and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.

(2)	Subsection (1) does not apply to a claim for damages made under the Motor Vehicles (Third Party Insurance) (Basis Protection Compensation) Act 1974.

(3)	A claim under Subsection (1)(a) or (b) may be made, and any proceedings to enforce such a claim may be taken, notwithstanding that the owner or driver of the motor vehicle—

(a)	is dead; or

(b)	cannot be found; or

(c)	is the spouse of the person whose death, or to whom bodily injury, has been caused.

(4)	The inquiry and search under Subsection (1)(c) for the purpose of establishing the identity of the motor vehicle may be proved orally or by the affidavit of the person who made the inquiry and search.

(5)	Where an award of damages is made by a court in respect of a claim under Subsection (1) that exceeds the amount of liability of the successor company specified in Section 49(2)(a), the court shall, at the time when it makes the award, determine against whom (if anyone) the excess shall be awarded, and an award under this subsection operates as a judgment against that person for all purposes.

(6)	No action to enforce any claim under this section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company within a period of six months after the occurrence out of which the claim arose, or within such further period as—

(a)	the Commissioner; or

(b)	the court before which the action is instituted,

on sufficient cause being shown, allows.

(7)	For the purposes of this Act, if the owner of a motor vehicle or his estate becomes liable, by way of damages, in respect of a motor vehicle for the death of or bodily injury to a person who is a worker within the meaning of any law relating to workers compensation, compensation under that law in respect of which a person is entitled to be indemnified by the owner or his estate is damages.”

This requirement has been the subject of many judicial pronouncements and discussions commencing with the case of Rundle v MVIT [1988] PNGLR 20 where Kapi DCJ (as he then was) said that “… the requirement of notice under s 54(6) of the Motor Vehicles (Third Party Insurance) Act is a condition precedent to the right of action provided in s 54(1); it requires the plaintiff to show, at the hearing of the action, that he has given the required notice of intention to make a claim against the Trust.”

In this particular case no specific ‘notice’ was given to the Trust of the respondent’s intention to claim against it for the death of her husband in the motor vehicle accident. However there were correspondences entered into between the respondent’s legal representatives and the appellant before and post payment of the compulsory compensation under the third party basic protection law which were seemingly, albeit erroneously, construed as constituting the required notice for purpose of section 54(6) of the Act. The writ was issued on 15th February 1999 almost three years after the death of the deceased by the Public Solicitor on behalf of the deceased’s wife (widow), four dependent, his father and mother and his sisters who were wholly dependent on the deceased immediately before his death. The trial was held on 11th July 2001 about two years after the issue of the writ. 

The issue of lack of notice was raised at the outset of the trial in which the respondent’s lawyer conceded that there was no specific letter stating the word “notice” sent to the Trust but there were various correspondences between the parties that establish notice of the claim for purpose of section 54(6) of the Act. The trial judge appeared satisfied with this explanation and proceeded with the trial by inviting the respondent to call her witnesses. See pp.12-13 of the Appeal Book. The trial judge explained in his judgment at p.38 AB:

“As to the giving of notice of claim, I ruled at the trial that there was evidence of appropriate notice having been given as required by s.54 of the Act. There had been a payment of basic protection compensation under Chapter 296 and an exchange of correspondence between the parties as to further compensation which ultimately led (sic) to these proceedings.

Payment of basic protection compensation does not of itself render the MVIT liable or prejudice any defence it might raise under a subsequent claim. Chapter 296 specifically provides that the operation of MVIT Act Chapter 295 (inter alia) shall not be affected (sic) by such payment. But I am satisfied that once payment under Chapter 296 has been made it was no longer possible for MVIT to say it has not had notice of the claim or that it had no knowledge of the claim.” (My emphasis)

What constituted proper notice was discussed in the Supreme Court in Joy Kawai An Infant By Her next Friend Kawai Takame v Motor Vehicle Insurance (PNG) Trust [1998] Unreported Supreme Court Judgment SC588 where Salika, Hinchliffe and Akuram, JJ held that a letter purporting to be a notice for purpose of s.54(6) sent after the expiry of the time given under the Act does not constitute a valid notice under section 54(6) of the Act.

The trial judge adopted the view that exchange of correspondence between the parties and the fact that compensation under the basic protection act had been paid was sufficient evidence to satisfy the requirement of notice under s.54(6). See line 10 p.38 of the Appeal Book. In so doing the trial judge followed the more liberal interpretation of the law as applied in Stanley Tendi v MVIT [1996] PNGLR 379 where Injia, J (as he then was) when determining what constitutes notice for purpose of section 54(6) held:

“1.	In the absence of a definition of “notice” under s 54(6) of the Motor Vehicles (Third Party Insurance Act Ch 295, its ordinary meaning should apply; which is to inform or make the Trust aware of the claimant’s intention to make a claim against it. The notice which may be in writing or oral, depending on the background circumstances of the claimant, should set out sufficient particulars of the accident, the injuries sustained by the claimant and his desire or intention to make a claim.

2.	In construing the word “notice” under s 54(6) of the Motor Vehicles (Third Party Insurance Act Ch 295, the literal, strict and legalistic approach to construction of words in this statute should be avoided and the purposive approach used.

3.	However, a copy of a letter purporting to give notice outside the six months time limit, which is annexed to the Commissioner’s letter giving extension of time, both of which are forwarded to the Trust within the extended period is sufficient notice under s 54(6) of the Motor Vehicles (Third Party Insurance) Act Ch 295.”

The trial judge’s decision here is challenged on the basis that there was no evidence of notice being given and yet His Honour found there to be such notice. With respect that is not precisely correct. His Honour appears to have accepted the exchange of correspondence between the parties which are undisputed and the payment of basic protection compensation by the Trust as sufficient evidence constituting notice. In other words the Trust was already well aware, having paid basic protection compensation and the correspondences between itself and the respondent’s lawyers of an imminent claim against it. It cannot therefore argue that it was taken by surprise in this claim. That is the whole essence of the law requiring notice so that Trust can properly defend itself.

We are in agreement with this reasoning and the conclusion that the trial judge reached. The requirement to give notice is a process by which the claimant avails himself or herself of the avenue for compensation under the Act. The Act does not prescribe any rigid specific format, manner or style of such notice being given for compliance with this statutory requirement. As long as no magical formula or specific form or style is specified to be adhered to in complying with that requirement, it is sufficient for the court to recognize compliance of the requirement according to the circumstances given in a particular case. The trial judge considered in this case that exchange of correspondence and payment of basic protection compensation is already evidence enough of notice. Why should that not be so? It would be defeating the whole purpose of the Act as envisaged and clearly provided under section 54(1) if by the same breadth legal reasoning the Act denies a claimant access to that benefit under subsection (6) for want of notice in the strict sense of that word. Section 54(1) will be rendered meaningless and contradicted if one does not clearly appreciate the objective and purpose of this particular provision of the law. While it is correct that each provision of a statute law must be read as a whole, equally important is the need to understand the real purport and objectivity of the law itself. The law does not exist in abstract and procedural requirements must not be so rigidly applied such as to defeat the whole purpose of that law’s existence. Strict compliance of procedural requirement is essential for orderly and proper facilitation and application of the law but not to deny access to the claimants of their rights to remedy that it provides.

We are content to find that the trial judge did not err in his decision on the question of notice under section 54(6) of the Act. His Honour’s conclusion is supported by case law in this jurisdiction such as the one we referred to. We would dismiss the appeal on this ground.

Contributory Negligence

Negligence against two or more parties is measured or calculated according to the degree of blameworthiness attributed to those who contributed to the mishap. In this case the only reason that the trial judge was prepared to find the respondent negligent was that he failed to wear a safety helmet although he did allude to the other matters as well. But we agree with the appellant’s counsel that had the trial judge properly applied his mind to the fact that the deceased had some beer to drink that night before getting the lift on the motor bike with its rider, he saw and knew or ought to have known that the cyclist also drank some beer, the cyclist was only a provisional license holder and was not an experienced person in handling a motor bike. At the time the deceased undertook this trip that evening while trying to leave the club to escape from the fight that erupted in the club house; there was some voluntary assumption of risk by the deceased. So it is not just a matter of him not wearing a safety helmet, he was prepared to, and on his own free will, place his own safety in the hands of a person who had just been drinking beer in the club with him and probably inebriated, a provisional license holder and an inexperienced rider and managing or controlling an extremely dangerous machinery that had a high risk of accident in the event of inattentiveness, carelessness or mishandling of the motor cycle or any kind of mishap on the road as the result of poor visibility, bad weather and bad road conditions or such other calamity encountered on the road. 

In the circumstances we would uphold the appeal on this ground and apportion contributory negligence at seventy-thirty in favour of the respondent. This means that the damages awarded by the National Court in favour of the respondent be apportioned accordingly at the ratio of 30% liability against the deceased himself. We refer the case back to the National Court for assessment on damages on apportioned liability in the ratio of 70:30 on the basis of contributory negligence.

Appeal upheld in part.

Lawyers for the Appellant: Mirupasi Lawyers
Lawyer for the Respondent: Public Solicitor