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Motor Vehicles Insurance (PNG) Trust v Payne and The State [1981] PNGLR 114 (3 April 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 114 - MVIT v William Leslie Payne and The State 

[1981] PNGLR 114

SC196

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

V

PAYNE

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Kidu CJ Greville Smith J Pratt J

23 March 1981

3 April 1981

INSURANCE - Third party liability - Motor vehicles - Government vehicle - Identification of - Not necessary to specify which particular vehicle - Not “uninsured motor vehicle” - Not vehicle “identity of which cannot be established” - Government may be sued in tort - Motor Vehicles (Third Party) Insurance Act 1974, s. 54(1).[clxxviii]¹

A motor vehicle known to be a government vehicle (by virtue of the distinguishable number plate) although its particular identity remains unascertained:

(a)      is not a motor vehicle the identity of which cannot be established within the meaning of s. 54(1)(c) of the Motor Vehicles (Third Party) Insurance Act 1974, and

(b)      cannot be an uninsured motor vehicle within the meaning of s. 54(1)(b), as the definition of uninsured motor vehicle in s. 1 of the Act excludes therefrom uninsured motor vehicles the property of the Government,

and accordingly a claim in tort alleging negligence by the driver of such a vehicle may be brought against the Government according to the Claims By and Against the State Act 1951, and the Law Reform (Miscellaneous Provisions) Act 1962.

Appeal.

This was an appeal against a decision of Saldanha J. in two actions claiming damages for negligence arising out of the use of a motor vehicle, which actions were consolidated and in which judgment was given against the appellant alone.

Counsel:

I. Molloy, for the appellant.

T. Glenn, for the first respondent.

A. Mullumby, for the second respondent.

Cur. adv. vult.

3 April 1981

The judgment of the Court was delivered by

KIDU CJ:  This is an appeal against a decision of Saldanha J. of 17th November, 1979 arising out of two separate actions by the then plaintiff (now the first respondent), against The Independent State of Papua New Guinea and the Motor Vehicles Insurance (P.N.G.) Trust. At the hearing the two actions were consolidated. The statements of claim disclosed injuries and damage sustained by the plaintiff as a result of a motor vehicle accident on the Sogeri Road in April 1975. The plaintiff was rendered a paraplegic.

The plaintiff alleged that the accident was due to the negligence of the driver of a motor vehicle which belonged either to the State, in which case the State was liable, or alternatively that it was an unidentified vehicle within the meaning of s. 54(1)(c) of the Motor Vehicles (Third Party Insurance) Act 1974, in which case the Trust was liable.

The learned trial judge found on the evidence that the plaintiff’s vehicle had been forced off the road by another vehicle carrying a “G” plate, that is a government vehicle. There can be no serious dispute on such finding as the evidence points all one way and we do not consider that any serious contest has been put forward on this point. However, his Honour could not be satisfied that the specific identity of such vehicle could be established as no-one at the scene either saw or retained in memory the numerals following the letter “G” on the registration plates. He therefore found that it was a motor vehicle, the identity of which could not be established, within the meaning of s. 54(1)(c) and this, his Honour held, was the basis of the Trust’s liability to the maximum extent of K30,000. He further held that he had jurisdiction, under the provisions of s. 54(5) of the Act to award the excess over the Trust’s liability, namely K96,100.35, against the Government. Costs were awarded against both the Trust and the Government.

Against this award the Trust appeals, and contends that in the circumstances it was not liable. At the original hearing and during the appeal some considerable time was spent on examining the provisions of s. 54(1) of the Motor Vehicles (Third Party Insurance) Act which reads:

“Subject to Subsection (2), from the date of commencement of this Act, every 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; and

(b)      an uninsured motor vehicle in a public street; and

(c)      a motor vehicle upon a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the Trust 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 Trust and not against the owner or driver of the motor vehicle.”

For completeness the court also refers to s. 54(5):

“Where an award of damages is made by a Court in respect of a claim under Subsection (1) which exceeds the amount of liability of the Trust specified in s. 49(2)(a), the Court shall, at the time it makes the award, determine against whom (if anyone) the excess shall be awarded and that award shall operate as a judgment against that person for all purposes.”

The appellant submits that the word “identity” does not, in circumstances pertinent to Papua New Guinea, mean a specific vehicle provided it is shown to be one of any number of vehicles owned by the Government. As the Government carries its own insurance, the evidence of the fact that a Government vehicle was involved is sufficient identity within the meaning of the sub-section. Counsel for the second respondent referred to a number of authorities which deal with the problem of “identification” in other jurisdictions having similar legislative provisions.

In the alternate the appellant argued that the State was not covered by the Act at all, but that if the Act did have some application to the State, this could not be the case in relation to the provisions of s. 54(1) because the Government falls into a separate and fourth category not stipulated in that sub-section. The argument was touched upon in the original written submissions placed before the learned trial judge by counsel for the appellant.

There has been a longstanding and fundamental principle of the English common law that unless expressly stated so to do, an Act of Parliament does not bind the Crown. In Halsbury’s Laws of England 3rd ed., Vol. 36, par. 652 at p. 430, we find the following:

“The Crown, which means in this connexion not merely the sovereign personally, but also all bodies and persons acting as servants or agents of the Crown, is not bound by the provisions of any statute unless the contrary is expressly stated or there is a necessary implication that it was intended to be bound. In particular the Crown is not normally bound by a statute imposing a duty or tax.”

The common law principle above-mentioned presently finds expression in statutory terms within this country by virtue of s. 31 of the Interpretation (Interim Provisions) Act 1975, which reads:

“A provision shall not in any manner adversely affect the rights of the State or bind the State unless it is expressed to do so, or unless it appears by necessary implication that the state is bound by the provision.”

The Motor Vehicles (Third Party Insurance) Act neither by express provision nor necessary implication adversely affects the rights of, or binds, the State. Section 1 of the Act provides, inter alia, that unless the contrary intention appears, the term “uninsured motor vehicle” does not include an uninsured motor vehicle which is the property of the Government. It is clear that the Government is not bound to insure its vehicles under s. 48, nor to comply with the provisions of s. 49 which set out the manner of effecting third party insurance, or to pay a third party insurance premium prior to registration under s. 50. These provisions may be contrasted with the obligation imposed on the Government under s. 4 of the Motor Traffic Act 1950 to register its vehicles and to comply, both as a State instrumentality and through all persons in the service of the State, with the provisions of that Act.

The vehicle in question was therefore an uninsured vehicle in a public street and had it not been a Government vehicle, the requirements of s. 54(1)(b) would have imposed liability on the Trust. However the Trust was, because it was a Government vehicle, exempted from liability by the aforementioned provisions of s. 1. Once this is appreciated, and bearing in mind that statutory provisions should be interpreted as a harmonious whole, we think it becomes clear that the vehicle in question was not a motor vehicle upon a public street where the identity of such motor vehicle could not be established. For the purposes of the Act, its identity was sufficiently established once it was known to be a Government vehicle although its particular identity remained unascertained. As the appellant points out, when one examines s. 54(1) of the Act a Government vehicle does not fall within any of the paragraphs (a), (b) or (c). It cannot be regarded as an uninsured motor vehicle by virtue of s. 1 of the Act and it certainly is not an unidentified vehicle because the evidence is established that it was a Government vehicle. As was pointed out in argument, since the Government carries its own insurance, it obviously does not pay into the Trust along with other subscribers under s. 33 of the Act. Why then should the Trust pay out in respect of a vehicle owned and operated by a party who has no obligation to pay in.

Counsel for the second respondent sought to uphold the present judgment on the further point that as his Honour had found the vehicle was not identified, he therefore did not find it was a Government vehicle. Certainly on the interpretation which the trial court gave to s. 54(1), the vehicle was not “identified” but just as clearly his Honour, by awarding the balance of the judgment against the State, found that although the specific number of the vehicle was not known, it was nevertheless a Government vehicle. In the final paragraph of his judgment his Honour says:

“Although for the purposes of s. 54(1)(c) of the Act the motor vehicle that was responsible for the accident is an unidentified motor vehicle, so that a claim for damages could only have been made against the Trust—the words of the section are ‘claim for damages shall be made against the Trust and not against the driver or owner of the motor vehicle’—I find that the ownership of the motor vehicle can be established. According to Mr. Pigott only Government motor vehicles have the red letter G and there were about five or six such Toyota utility landcruisers with the orangey-yellow colour in the Port Moresby area. Therefore the motor vehicle that was responsible for the accident was a Government motor vehicle presumably being driven by the driver in the course of his employment. That the amount in excess of K30,000 can be awarded against the owner is clearly also envisaged by the words ‘subject to subsection (5)’ in s. 54 of the Act.” (My emphasis.)

In the final analysis his Honour has been led into error on his interpretation of the law as a result of which he has arrived at a final judgment on the facts which cannot be supported. This Court has power under s. 15 of the Supreme Court Act 1975 to “give such judgment as ought to have been given in the first instance”. The plaintiff brought his action in the alternative. That he was entitled to sue the Government in tort is clear under the Claims By and Against the State Act 1951 in conjunction with the Law Reform (Miscellaneous Provisions) Act 1962. His action is not complicated by any need to refer to the Trust. That a full verdict against the Government is proper in the circumstances is further supported by the provisions of the Motor Vehicles (State Liability) Act 1969. Section 4(1) of that Act states:

“In proceedings in which-

(a)      a claim is made against the State or a State authority for damages in respect of the death of, or personal injury to, a person caused by, or arising out of the use of, an uninsured motor vehicle owned by the State or the State authority; or

...

the driver of the vehicle shall, for the purposes of the claim, be conclusively presumed to have been at all relevant times,... the agent of the State..., acting within the scope of his authority.”

This Act of course is further confirmation that Government vehicles were not intended to be covered by the then existing Motor Vehicles (Third Party Insurance) Act 1974.

In substitution for the order made by the learned trial judge, we consider the judgment for the full amount of K126,000.35 should be awarded against the defendant in the original action W.S. 365 of 1975 (P) (the second respondent in this appeal) and that judgment against the Trust (the appellant herein) should be vacated. In view of the uncertainties giving rise to this appeal, we are of the view that the plaintiff followed a prudent and proper course in joining the Trust in the original action. The Trust should have had its costs of the trial against the plaintiff and the plaintiff his costs against the State including the Trust’s costs. In this appeal the Trust should have its costs against the first respondent and the first respondent should have his costs against the second respondent including the appellant’s costs. The Court so orders.

Orders accordingly.

Solicitor for the appellant: Young & Williams.

Solicitor for the first respondent: Beresford Love & Co.

Solicitor for the second respondent: B. Emos, Acting State Solicitor.