Can I Claim After a Hit-and-Run When the Vehicle Cannot Be Identified?

A pedestrian knocked down at night by a vehicle that does not stop is the case the 1974 Act tried hardest to provide for. The provision it made has now gone, and this article explains both what it required while it lasted and where a victim stands today.

The former section 54(1)(c)

Until 2021 section 54(1) directed to the insurer a claim arising from “a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established”. Section 54(4), which remains in the Act, provided that “the inquiry and search ... may be proved orally or by the affidavit of the person who made the inquiry and search”. The paragraph made the Trust a nominal defendant for hit-and-run victims, and section 57 allowed it to recover from the owner and driver if they were later found.

What “due inquiry and search” required

The leading case is Mangoi v Motor Vehicles Insurance (PNG) Trust [1990] PGLawRp 686; [1990] PNGLR 327. Proof of due inquiry and search is a precondition to a paragraph (c) claim. The search must be made “at the time of the accident or soon thereafter” and means “such inquiry and search as is objectively reasonable in the circumstances”. Inquiries made of a police officer five years after the accident did not qualify. The court adopted Australian authority on the equivalent nominal defendant provisions.

Walpe v Motor Vehicles Insurance (PNG) Trust [1993] PGLawRp 548; [1993] PNGLR 434 adapted the standard to Papua New Guinea. What is reasonable depends on “time of search, nature of area, social differences, and a lack of a proper search and tracing system”. A villager injured on a rural road, with no registry to consult and a distant police post, is not held to the standard of a town resident with access to police and lawyers. The plaintiff in Walpe, who had a compression fracture of the lumbar spine, recovered K12,000 general damages and K3,000 for economic loss.

Failure was common. In Gelua v MVIT [1993] PGNC 11; N1193 and Kongupi v MVIT [1992] PGNC 9; N1043 passengers who fell from open-back utilities could not identify the vehicle they had been riding in and had not searched, and their claims failed. In Ziporo v MVIL [2008] PGNC 234; N3701 a pedestrian’s family on Ela Beach Road neither identified the vehicle nor proved negligence, and the court stressed that the claimant “must establish the category of claim” under section 54(1) they rely on. Even under paragraph (c), negligence still had to be proved: the fact that a vehicle struck a pedestrian and drove off was not, by itself, proof that the driver was at fault, although courts were willing to infer it from the circumstances.

The notice problem

A hit-and-run victim still had to give MVIL notice within six months. Since the search itself might take time, the two requirements often collided, and extension applications in hit-and-run cases were treated sympathetically where the search had been diligent. In Paru v MVIL [2008] PGNC 100; N3407 a father whose son was killed at Kaugere in April 2005 proved due search and inquiry, explained his delay by his customary obligations to hold a feast for the boy, and was given 14 days to give notice.

The 2021 repeal and what remains

Section 2 of the Motor Vehicles (Third Party Insurance) (Amendment) Act 2021 repealed paragraphs (b) and (c) of section 54(1). Section 54(4), about proving the search, was left standing but now has nothing to attach to for accidents after 21 September 2021. For those accidents:

• If the vehicle is later identified and was insured, the claim lies against MVIL under paragraph (a) in the ordinary way. The six-month notice can be given even before the vehicle is known, describing the accident and stating that inquiries continue; an extension may be sought if identification takes longer.
• If the vehicle is identified but was uninsured, the claim lies against the owner and driver personally: see uninsured vehicles.
• If the vehicle is never identified, there is no defendant and no claim for damages. The only statutory payment is Basic Protection Compensation on a death, which does not depend on identifying the vehicle: section 20(1)(c) of Chapter 296 provides for payment by MVIL and the State in proportions the Minister determines where the vehicle is unknown, and section 23 lets them recover from the owner if later found. See Basic Protection Compensation.