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Pupune v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 353 (9 September 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 353 - Pupune v MVIT 

[1991] PNGLR 353

N1001

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PUPUNE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Goroka

Andrew J

6 September 1991

9 September 1991

INSURANCE - Third party liability insurance - Compulsory motor vehicle insurance legislation - Injury to owner/passenger - Whether claim for bodily injury to “any person” - “Liability” to “indemnity” - Liability to another person - Indemnity for benefit of another person - Owner/passenger may be indemnified for own injuries - Motor Vehicles (Third Party Insurance) Act (Ch No 295), ss 48, 49, 54.

The Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 54(1), provides that any claim for damages “in respect of bodily injury to any person caused by, or arising out of the use of (a) motor vehicle insured under this Act: ... shall be made against the Trust ...” and s 49 provides that “the owner of a motor vehicle must at all times keep himself indemnified with the Trust against any sum for which he ... may become liable by way of damages for bodily injury to a person caused by, or arising out of the use of, the motor vehicle”. Section 49(2) provides that a third party insurance cover:

“...insures the owner of the motor vehicle and any other person who at any time drives the motor vehicle ... in respect of ... injury to a person caused by, or arising out of the use of the motor vehicle ....”

Held

An owner passenger who is injured in a motor vehicle accident where his insured motor vehicle is driven by another person may proceed against the Motor Vehicles Insurance (PNG) Trust for damages for personal injuries.

By the operation of s 49(2) of the Act, indemnity under the Act extends to the driver of the insured motor vehicle against all claims for which he may become liable including a claim by the owner who also comes within the meaning of “any person”.

Kiak v Tora Enterprises Pty Ltd and Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 265, approved.

Cases Cited

Kiak v Tora Enterprises Pty Ltd and Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 265.

Digby v General Accident Film and Life Assurance Corporation [1943] AC 121.

Application

At the commencement of an action for damages for personal injuries arising out of the use of a motor vehicle, the defendant sought to have the action stayed on the ground that the owner of the motor vehicle could not recover damages in respect of personal injuries to himself. The following ruling in relation to this application was delivered after the hearing.

Counsel

W Neil, for the plaintiff.

A Kandakasi, for the defendant.

Cur adv vult

9 September 1991

ANDREW J: At the commencement of the trial in this matter, counsel for the defendant made an application to have the matter dismissed on the basis that the plaintiff was the owner of the motor vehicle in which he claimed to have been injured and that he was precluded as a matter of law from proceeding against the Motor Vehicles Insurance Trust (the Trust) as he was not “any person” as defined by the Motor Vehicles (Third Party Insurance) Act (Ch No 295) (the Act) or in other words he was not a third party as envisaged by the Act. Reliance was placed on Kiak v Tora Enterprises Pty Ltd and Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 265.

There is no dispute that the plaintiff is the owner of the vehicle in question and that it was properly insured.

In Kiak v Tora Enterprises Pty Ltd and Motor Vehicles Insurance (PNG) Trust, the National Court found that under the Act an owner/driver cannot be indemnified for his own personal injuries. The Act provides that any claim for damages “in respect of the bodily injury to any persons caused by, or arising out of the use of (a) a motor vehicle insured under this Act; ... shall be made against the Trust ...”, and s 49 provides that “the owner of a motor vehicle must at all times ... indemnify himself and keep himself indemnified with the Trust against any sum for which he ... may become liable by way of damages for bodily injury to a person caused by or arising out of the use of, the motor vehicle”. In the Act, when properly construed in its context of providing liability for damages awarded in a motor vehicle negligence actions, and the provisions of s 49 and s 51, so construed in this context, “liability” can only be for the benefit of another person; an owner/driver cannot be indemnified for his own personal injuries.

However Kiak’s case is distinguishable in that here the owner was not the driver of the vehicle when the alleged injuries were suffered; for it is alleged that he was a passenger. He is thus not an owner/driver but rather an owner/passenger and it now falls to decided whether an owner/passenger is also precluded from proceeding against the Trust.

In Kiak’s case, it was pointed out that the preamble to the Act requires that owners (and drivers) of motor vehicles be insured against liability in respect of the death or bodily injury to “persons” caused by or arising out of the use of motor vehicles. There it was found that “persons” must exclude an owner/driver for he can have no liability in damages for the death or bodily injury of himself. The court said (at 270):

“The argument in relation to s 49 is that it relates to ‘third party insurance’ which belies any suggestion the insurance covers an owner/driver’s death or injury. Under the heading ‘Manner of effecting Third-party insurance’, s 49(2) 9(a) provides:

‘A third-party insurance cover issued under Subsection (1):

(i)       K100,000.00 in respect of the death of or bodily injury to any one person in any one case; and

(ii)      K500,000.00 in the case of any one accident or series of accidents arising out of the one event.’

The submission is the same: ‘a person’ must exclude an owner/driver for he can have no liability in damages for his own death or bodily injury.

In PT IX, headed ‘Claims and Actions for Damagers’, s 54(1)(a) is as follows:

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 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’.

It is contended by Mr Gzell that this does no more than enable a claim which could otherwise lie against an owner or driver to be brought against the Trust. It presupposes that a claim would otherwise be maintainable against the owner or driver — hence the reference to proceedings against the Trust and not the owner or driver. It is thus limited and does not provide that any person injured by a motor vehicle might sue the Trust. The reference to ‘any person’ must exclude an owner/driver for he is under no liability to himself.”

Again, in Kiak’s case, it was said that third party insurance cover is defined to mean “an insurance cover issued by the Trust”. It is further defined by implication, the owner of a motor vehicle must indemnify himself and keep himself indemnified with the trust for K100,000 in the case of death or bodily injury to any one person “for which he may become liable by way of damages for ... injury to a person caused by or arising out of the use of the Motor Vehicle”. From s 48(2), this indemnify is impliedly called “Third Party Cover”. The cover insures the owner who drives the vehicle against all liability incurred by him “in respect of injury to a person caused by or arising out of the use of the motor vehicle”: see s 49(2).

Section 49(2) is as follows:

“A Third Party Insurance cover issued under Subsection (1):

(a)      Where it is issued in relation to a particular motor vehicle, insures the owner of the motor vehicle and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally against all liability incurred by the owner and the other person jointly or by either of them severally in respect of the death of or bodily injury to a person caused by, or arising out of the use of the motor vehicle, to an amount not exceeding....

(i)       K100,000 in respect of the death of or bodily injury to any one person in any one case; and

(ii)      K500,000 in the case of any one accident or series of accidents arising out of the one event.”

Clearly by this section, when the owner effects third party insurance cover the “indemnity” extends to any other person who at any time drives the motor vehicle, whether with or without the authority of the owner. The indemnity of the driver is for his liability and that may be distinct from the owner because it is joint and several against all liability incurred jointly or severally in respect of death or bodily injury. And that liability vests in the Trust.

A similar situation arose in Digby v General Accident Fire and Life Assurance Corporation [1943] AC 121 and this was approved in Kiak’s case. There the owner’s insurance policy provided for “Third Party Liability” in terms very similar to s 48 and s 49 of the Act here. The facts of the case were that the insured, car owner, actress Merle Oberon took out such a policy. She was subsequently injured in a collision and sued the chauffeur for her vehicle, Digby, and the driver of the other vehicle involved. Judgment was given against both drivers and Digby sought indemnity under the owner’s insurance policy.

In speaking of the indemnity to a driver (here the “the other person who at any time drives” in s 49(2)), Lord Atkin said (at 137):

“The subject of indemnity is to be ascertained by reference. To me it seems clear that on making the necessary reference the words should read ‘extend to indemnify’ [an authorised driver] ‘against all sums which he should become liable to pay in respect of any claim by any person’. etc ‘Any person’ must receive its ordinary meaning, and on this occasion the policy holder is plainly ‘any person’. The authorised driver is excluded because, as before, he can be under no liability to himself.”

It was expressed by Lord Porter (at 145):

“In my view, the true reading os sub (3) is that, just as the policy is to be indemnified against any claim made by her by a person other than herself, so the authorised driver is to be indemnified against any claim made on him by a person other than himself.”

[The above quotations are taken from Kiak’s case (at 272)].

I find therefore that by the operation of s 49(2) the indemnity extends to the driver of the vehicle against all claims for which he become liable including a claim by the owner who also comes within the meaning of “any person”; consequently it is competent for an owner/passenger to proceed against the Motor Vehicles Insurance (PNG) Trust for injuries received in a motor vehicle accident.

Because the sittings of the Court in its civil jurisdiction have now finished the matter will be adjourned to the next sittings and set down for hearing on Thursday, 3 October 1991 at 9am.

Ruled accordingly

Lawyer of the plaintiff. William Neill.

Lawyer for the defendant: Young & Williams.