John Basil Ziporo for and on behalf of himself, the two widows, Margaret Ziporo and Mary Ziporo and the 10 dependent children v Motor Vehicles Insurance Ltd (2008) N3701

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 20 February 2008
• Court: National Court
• Citation: (2008) N3701
• Docket Number: WS No. 1470 OF 2003
• Year: 2008
• Judgement Number: N3701

Full Title: WS No. 1470 OF 2003; John Basil Ziporo for and on behalf of himself, the two widows, Margaret Ziporo and Mary Ziporo and the 10 dependent children v Motor Vehicles Insurance Ltd (2008) N3701

National Court: David, J

Judgment Delivered: 20 February 2008

N3701

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1470 OF 2003

BETWEEN:

JOHN BASIL ZIPORO for and on behalf of himself, the two widows, Margaret Ziporo and Mary Ziporo and the 10 dependent children

Plaintiff

AND:

MOTOR VEHICLES INSURANCE LTD

Defendant

Waigani: David, J

2008: 20 February

NEGLIGENCE – claim for damages – proceedings under Motor Vehicles (Third Party Insurance) Act, Chapter 295- liability denied – motor vehicle not properly identified – must establish category of claim – alleged negligence of driver – onus not satisfied – claim dismissed.

Cases cited:

Garo Kei v. MVIT [1992] PNGLR 195

Imambu Alo v. MVIT [1992] PNGLR 487

Lucy Kongupi v. MVIT (1992) N1043

Martin Kilte v. MVIT (1992) N1085

Bepiwan Ambon v. MVIT (1992) N1116

Waro Moses v. MVIT [1993] PNGLR 63

Moki Gelua v. MVIT (1993) N1043

Pare Umbe v. MVIT (1997) N1574

Joe Danga v. MVIT (1997) N1665

Counsel:

Plaintiff in person

V. Mirupasi, for the Defendant

JUDGMENT

1. DAVID, J: INTRODUCTION: The Plaintiff instituted this action against the Defendant under the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 (the Third Party Insurance Act).

2. The Plaintiff is the natural brother of the late Anthony Guran Ziporo (the deceased). On 20 October 2003, he commenced this action by way of his Writ of Summons and Statement of Claim dated 17 October 2003 claiming damages on behalf of himself, the two widows of the deceased namely, Margaret Ziporo and Mary Ziporo and the ten wholly dependent children.

3. The Plaintiff claims that the deceased was hit by a speeding motor vehicle along the Ela Beach road between Hunter and Durbill Streets in front of the Ela Beach Hotel in the National Capital District and the deceased died on 21 October 2000 as a direct result of the injuries sustained from that accident. The Plaintiff also claims that the motor vehicle involved in the accident was a Mazda utility bearing registration number CAG 931 owned by Guard Dog Security Company of Port Moresby (the motor vehicle) and was driven by one Luke Tanda (the driver) at the material time. The Plaintiff further alleges that the accident was caused by the negligent driving of the driver.

4. The claim is brought against the Defendant as the Plaintiff claims that the motor vehicle was duly registered and had a third party insurance cover issued by the Defendant in relation to it at the material time.

5. On 5 December 2003, the Defendant filed its defence dated 25 November 2003 denying the allegations, but pleaded in the alternative, contributory negligence on the basis that the deceased was responsible for his own death by being intoxicated and running into the path of the motor vehicle.

THE ISSUES

6. The major issues for the Court’s determination are:-

1. Whether the Plaintiff has established a claim under one of the categories prescribed under s.54 (1) of the Third Party Insurance Act?

2. If the first issue is decided in favour of the Plaintiff, was the driver negligent?

3. Did the deceased contribute to his death by his own negligence?

4. If the Defendant is liable, what are the Plaintiff’s damages?

I will discuss issues 1 and 2 together as they deal with liability. Should liability be established, Issues 3 and 4 will be discussed.

THE RELEVANT LAW

7. A person who wants to make a claim for damages for death or bodily injury arising from a motor vehicle accident must make the claim under s. 54 of the Third Party Insurance Act. The claim must be brought against the successor company namely, Motor Vehicles Insurance Ltd and not against the owner or the driver of the motor vehicle: see ss. 1, 54 (1) and 71(1) of the Third Party Insurance Act. I reproduce those provisions below.

8. Section 1 of the Third Party Insurance Act defines “successor company” as:-

“(a) in Part XII, the successor company nominated under Section 65; and

(b) elsewhere in this Act (other than this definition)—

(i) for the period from 14 January to 31 December 1998 inclusive, the successor company nominated under Section 65; and

(ii) on and from 1 January 1999, Motor Vehicles Insurance Ltd or such other company as may be nominated under Section 72;..”

9. Section 54 (1) of the Third Party Insurance Act states:-

“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.”

10. Section 71 (1) of the Third Party Insurance Act states:-

“71. Replacement of successor company

(1) Subject to Section 72 –

(a) on and from 1 January 1999, Motor Vehicles Insurance Ltd is deemed to be, and to have been at all times on and from that date, the successor company under this Act other than in this Part; and

(b) all claims and liabilities arising as a result of the provision of third-party insurance cover to owners of motor vehicles under and in accordance with this Act which arose before 1 January 1999, or which arose or may rise after 1 January 1999, are claims against and liabilities of Motor Vehicles Insurance Ltd.”

11. Before filing an action against the Defendant, the claimant must give notice of an intention to make a claim to the Defendant within a period of six months after the occurrence out of which the claim arose or within such further extended period under the dictates of s. 54 (6) of the Third Party Insurance Act. That is not in issue in this case.

12. Section 54 (1) of the Third Party Insurance Act specifically provides for liability of the Defendant in three categories where death or bodily injuries have resulted from the use of:-

1. a motor vehicle insured under the Act; or

2. an uninsured motor vehicle in a public street; or

3. a motor vehicle on a public street where its identity cannot, after due enquiry and search, be established.

13. The Plaintiff must therefore firstly establish under which of the above categories this claim comes under or in other words the motor vehicle involved in the accident must be properly identified: see Martin Kilte v. MVIT (1992) N1085, Garo Kei v. MVIT [1992] PNGLR 195, Lucy Kongupi v. MVIT (1992) N1043, Waro Moses v. MVIT [1993] PNGLR 63 and Moki Gelua v. MVIT (1993) N1043.

14. The fact of registration and insurance requires strict proof: Bepiwan Ambon v. MVIT (1992) N1116; Garo Kei; Imambu Alo v. MVIT [1992] PNGLR 487; Pare Umbe v. MVIT (1997) N1574 and Joe Danga v. MVIT (1997) N1665.

15. The onus is on the Plaintiff to prove those underlying facts on the balance of probabilities.

THE PLAINTIFF’S EVIDENCE

16. In support of his claim, the Plaintiff called five witnesses. The Plaintiff, Margaret Ziporo, Mary Ziporo and John Loifa all gave brief sworn oral evidence. Charles Moreva also gave sworn oral evidence, but tendered his Affidavit sworn on 8 September 2004 and filed on 9 September 2004 which was admitted into evidence by consent and marked as Exhibit “A”. All the witnesses were not subjected to cross-examination.

17. In his written submissions filed on 21 December 2004, the Plaintiff sought leave to tender his Affidavit and those sworn by Margaret Ziporo, Mary Ziporo, John Loifa and Charles Moreva all filed on 9 September 2004. Charles Moreva’s Affidavit is already in evidence. The other Affidavits were never tendered at the trial by the Plaintiff when he had the opportunity to do so while presenting his case. I refuse leave.

18. The summary of the evidence before the Court of each of the witnesses is set out below.

John Basil Ziporo

19. He is the brother of the deceased. He claims damages for the death of the deceased and has brought this action because the Defendant denies liability. He does not know the circumstances under which the deceased died as there were no eye witnesses, but the police took the story about the accident from the driver.

Margaret Ziporo

20. She is the first wife of the deceased. They have five children. She was at home when the accident happened, but she heard that the deceased was hit by a motor vehicle.

Mary Ziporo

21. She is the second wife of the deceased. She was at home when the deceased died. She had no idea as to the circumstances under which the deceased died. She recalled however that when the deceased went out drinking, usually with friends, he never got pissed.

22. The deceased used to give her K200.00 every fortnight.

23. The deceased obtained a loan. He consulted herself and the other co-wife before getting the loan and when it materialised, he gave them K100.00 each.

John Loifa

24. He is an employee of the Internal Revenue...