MVIL v Estate of Prose Manus Ove

• Jurisdiction: Papua New Guinea
• Judge: Nablu, AJ
• Judgment Date: 04 September 2015
• Citation: (2015) N6063
• Court: National Court
• Year: 2015
• Judgement Number: N6063

Full : OS (JR) NO. 278 OF 2004; Motor Vehicles Insurance Limited v Estate of Prose Manus Ove by his next friend and personal representative Manu Ove and Allan Kopi, The Assessment Officer (2015) N6063

National Court: Nablu, AJ

Judgment Delivered: 4 September 2015

N6063

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 278 OF 2004

BETWEEN:

MOTOR VEHICLES INSURANCE LIMITED

Plaintiff

AND:

ESTATE OF PROSE MANUS OVE BY HIS NEXT FRIEND AND PERSONAL REPRESENTATIVE MANU OVE

First Respondent

AND:

ALLAN KOPI, THE ASSESSMENT OFFICER

Second Respondent

Waigani: Nablu, AJ

2014: 24th September

2015: 4th September

JUDICIAL REVIEW – Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Act – Public Policy – Deceased’s relatives should not benefit from deceased’s criminal conduct – Undue delay – Appropriateness of the relief sought Order – Certiorari refused.

Cases cited:

Papua New Guinea Cases

Konia v. Dosinga (1989) PNGNC 17

Kopuri Tapie v. Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 78

Limitopa v. The State [1988-89] PNGLR 364

Lipai & Others v. Motor Vehicle Insurance (PNG) Limited [1996] PNGLR 363

Mision Asiki v. Manasupe Zurenouc (2005) SC 797

Ombudsman Commission v. Peter Yama (2004) SC 747

State v. Samson [2007] N4994

The State v. Paul Loi (2009) N4058

Overseas Cases

Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1KB 233

Counsels:

E. Suelip and G. Kogora, for the plaintiff

T. Ilaisa, for the first defendant

M. Mai, for the second defendant

4th September, 2015

1. NABLU, AJ: The Motor Vehicles Insurance Limited (MVIL) was granted leave on 15th June 2006 to review the decision of the Assessment Officer pursuant to an application made under Order 16 Rule 5(1) of the National Court Rules (NCR).The Assessment Officer on 24th December 2002 ordered the plaintiff to pay the first defendant, the father of Prose Manus Ove (the deceased), the sum of K2500.00 as basic compensation under the Motor Vehicles (Third Party Insurance)(Basic Protection Compensation) Act.

2. The facts of this case are not much in dispute; in my view the critical legal issue is the construction given to the relevant provisions of the Motor Vehicle (Third Party Insurance)(Basic Protection Compensation) Act.

3. The facts of the case are contained in the affidavit of Robert Doko, sworn on 26th May 2004 and filed on 28th May 2004. This affidavit annexes copies of the Police Investigation Report and other evidence. I have summarized the facts as follows.

4. On 13th September 2002, Prose Manus Ove (the deceased) was a passenger in a Nissan Patrol Station Wagon registered to Justice Sheehan that crashed into a coconut tree at Idubada, Mobil Depot, Kanudi, Port Moresby. Prose Ove was found dead at the scene of the accident. The vehicle was driven without lawful authority by an unlicensed driver, namely Martin Iamo Richard, who was subsequently charged for dangerous driving causing death. However, it is unclear from the evidence, whether he was actually prosecuted for the offence. From the Police record of interview, the driver, stated that, he knew that it was a stolen vehicle, but denied he was involved in its theft. Nevertheless, he admitted that he drove the vehicle with the intention of hiding it when the accident happened.

5. The plaintiff has not clearly pleaded the grounds of review in the Statement in Support filed under Order 16 Rule 3 of the NCR.

6. However, the Statement in Support appears to contain two (2) main grounds of review. The first ground of review is that the Assessment Officer’s decision to order the payment of compensation was made contrary to public policy in that the deceased had met his fate whilst being involved in a criminal activity, and therefore, his family should not be benefiting from his death. The second ground of review is that the learned Magistrate exceeded his jurisdiction when ordering compensation because the decision was made on 24th December 2002, some three (3) months after the death which is contrary to the Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Act.

7. According to the Statement of Agreed and Disputed Facts, there are seven legal issues for the Court to determine, they are;

1. Whether the plaintiff has established his claim under the Motor Vehicle (Third Party Insurance)(Basic Protection Compensation) Act;

2. Whether the first defendant was a passenger, drunk, together with the driver in a stolen vehicle whilst escaping from the police, smashed into a coconut tree at Kanudi and died;

3. Whether the Court’s Order to pay the “belkol” money to the first defendant was made three (3) months after the date of the accident and therefore, outside of the time limit for such payment to be paid as required under the Act;

4. Whether the first defendant was involved in an illegal and criminal activity;

5. Whether the first defendant should benefit from such illegal and criminal activity;

6. Whether it is against public policy for the first defendant to benefit from an illegal and criminal activity of the deceased; and

7. Whether the Order of 24 December 2002, was made according to the Act;

8. The decision which is the subject of this review was made pursuant to the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act, Chapter 296 (BPC Act).

9. It is necessary for me to set out the relevant provisions of the Act starting with the preamble.

10. The preamble of the Act provides;

[A]n Act to provide for the speedy payment of a limited amount of compensation to the dependants of persons whose deaths are directly or indirectly attributable to the use of motor vehicles, without regard to any concept of negligence, and for related purposes.

11. Section 3 of the Act provides:

This Act does not apply to or in relation to the death of a person that is directly or indirectly attributable to personal injury suffered by him as a result of a motor vehicle accident where the death occurred more than 90 days after the incident.

12. A magistrate of the District Court and a coroner, by virtue of their respective powers are assessment officers for the purposes of the Act (Section 6). The applicable test that an assessment officer should apply before making an order for compensation under Section 15 of the Act, is that the death“is directly or indirectly attributable to the use of a motor vehicle”.

13. If this test is satisfied, then the next thing the assessment officer should determine is who is entitled to receive compensation under s.16 of the Act.

14. Under s.17, compensation is payable to either the dependant’s wife or children and in other cases, to the head of the deceased’s immediate customary kinship group (as the agent for all members of that group).

15. The compensation payable to the deceased’s wife or child is limited to an amount not exceeding K5000. In cases, where compensation is payable to the customary kinship group, the amount should not exceed K2500.

16. An award under this Act is an order for the payment of a sum of money under the District Court Act. Therefore, it is for all purposes, enforceable as a Court Order.

Ground One of Review

17. The plaintiff argues that the second defendant committed an error of law because the decision was made contrary to public policy. Ms Suelip of counsel for the plaintiff submitted that the deceased was intoxicated and was a passenger in a stolen vehicle. This claim is supported by the Police Accident Report and the record of interview conducted with the driver, Martin Iamo Richard.

18. Counsel for the plaintiff submitted that the deceased was an occupant of a stolen vehicle and therefore was involved in the unlawful use of a motor vehicle. Counsel referred to the case of The State v. Samson [2007] N4994 to support this contention. I am of the view, that this case is irrelevant, it does not apply to the issues before the Court. That case related to the sentence in a criminal case. The accused pleaded guilty to the charge of unlawful use of a motor vehicle. In the present case, the pertinent legal issue is whether the compensation ordered is contrary to public policy.

19. In regard to the public policy argument, the plaintiff stressed the point that the deceased was involved in an unlawful use of a motor vehicle. Counsel referred to the case of The State v. Paul Loi (2009) N4058 to support the contention that compensation payments to witnesses which may result in them refraining from giving evidence is contrary to public policy. It was submitted that if the compensation is paid to the deceased relatives they would be benefiting from the illegal and criminal conduct of the deceased which would also be against public policy.

20. Mr Ilaisa of counsel for the first defendant conceded that the deceased was involved in an illegal activity which led to his death. However, he submitted that there is no provision in the Act that expressly precludes claims where the death is attributable to the illegal use of the motor vehicle. He submitted further that whether...