Can the Driver or Owner Claim Against MVIL for Their Own Injuries?

The Act insures owners and drivers against what they owe to others. Whether a person at the wheel, or whose name is on the registration, can claim for his own injuries depends on whose negligence he relies on and which vehicle’s cover he invokes.

The owner driving his own vehicle: no claim

The point was decided in Kiak v Tora Enterprises Pty Ltd and Motor Vehicles Insurance (PNG) Trust [1986] PGLawRp 371; [1986] PNGLR 265. A repairer had negligently reassembled a vehicle; the owner, driving it, was injured when a part came through the floor and caused a severe compound fracture of his lower leg. He sued the repairer and the Trust. The court held the repairer liable and dismissed the claim against the Trust: in the Act, “when properly construed in its context of providing liability for damages awarded in motor vehicle negligence actions”, the words “liability” and “indemnity” in sections 49 and 51 “can only mean liability to another person” and “indemnity can only be for the benefit of another person”. An owner-driver cannot be indemnified for his own personal injuries. Section 53(4) confirms the reading by switching off the post-accident duties where the person injured was the owner and was driving.

The same result follows for an owner-driver injured through his own fault, or by a mechanical failure, or by an animal on the road: there is no negligent other person insured under his own cover, so there is nothing for MVIL to pay.

The owner as passenger: a claim

Where the owner is riding in his own vehicle while someone else drives it negligently, the position reverses. Pupune v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 75; [1991] PNGLR 353 held that “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 Trust”. Section 49(2) insures the driver against all liability to “a person”, and the owner is a person. Kiak was expressly approved: the two cases fit together because in each the question is whether there is an insured person other than the claimant whose negligence caused the injury.

A driver or owner injured by another vehicle

A driver hurt in a collision caused by the other driver is a third party in relation to the other vehicle and claims against MVIL on that vehicle’s cover. The claim is exactly like a pedestrian’s, with one practical difference: MVIL will insist on proof that the other vehicle was registered and insured. In Kilte v MVIT [1992] PGNC 28; N1085 a driver whose right leg was amputated after a collision could not prove the other vehicle’s registration and insurance, and his claim failed; the court held that a plaintiff driver claiming against another vehicle “must bring evidence of registration”. Since 2021 that proof is decisive in every case: see proving the vehicle was insured.

Where both drivers are at fault, the injured driver’s damages are reduced for his own contributory negligence. Where a passenger is injured in a two-vehicle collision with fault on both sides, he may sue on either cover for the whole loss (Koka v MVIT [1994] PGLawRp 671; [1995] PNGLR 344). A driver who was outside his broken-down vehicle pushing it when a truck struck him was a pedestrian for these purposes and recovered in full once the Supreme Court set aside the finding of contributory negligence (Moka v MVIL [2004] PGSC 38; SC729).

Employed drivers and hire-car customers

An employee injured while driving his employer’s vehicle through his own negligence has no claim against MVIL, but may have workers’ compensation under the Workers’ Compensation Act, which does not depend on fault; section 51(a) keeps that liability outside the third party cover. If he was injured by another vehicle, he claims against MVIL on that vehicle’s cover, and his employer’s compensation insurer may recover its payments as damages under section 54(7). A hire-car customer driving a hire vehicle is a “driver” insured under the hire company’s cover against liability to others, and stands in the same position as an owner-driver for his own injuries: no claim unless another insured person was negligent.

Death of the driver or owner

The same logic applies to fatal accidents. The dependants of a driver killed through his own negligence have no damages claim against MVIL, though they may receive Basic Protection Compensation, which is paid “without regard to any concept of negligence” and covers the death of “an occupant of a motor vehicle”. The dependants of a driver killed by another driver’s negligence claim in the ordinary way. And where the owner is a passenger killed by his own driver’s negligence, as in Tapi v MVIT [1990] PGLawRp 320; [1990] PNGLR 568 (a PMV owner killed while a passenger in his own bus), Pupune applies and the family recovers.