Does the Accident Have to Happen on a Public Street?

Many people assume the compulsory scheme is about roads. It is about vehicles. The place where the vehicle was being used matters far less than most claimants, and some insurers, have supposed.

Insured vehicles: anywhere

Section 54(1)(a) directs to MVIL “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 motor vehicle insured under this Act”. There is no reference to a street, a road or a public place. The cover in section 49(2) is equally silent on location. The National Court applied this literally in Kumbe v Motor Vehicles Insurance Ltd [2005] PGNC 110; N2860. A young man in his final years of school was playing touch rugby in a public park when a utility was driven across the playing field and struck him, rendering him quadriplegic. MVIL denied liability. Cannings J held that the onus was on the plaintiff to prove the injury was caused by or arose out of the use of an insured motor vehicle “in the circumstances prescribed by section 54(1)”; that he had done so through eyewitnesses, medical evidence and the police investigation; and that a driver crossing a public park owes a duty of care to the people using it. Damages were assessed and awarded at the statutory maximum of K150,000 plus interest and costs.

The earlier cases point the same way. In Nidop v MVIT [1989] PGLawRp 70; [1988-89] PNGLR 635 a forklift unloading a truck “in a public area” injured a bystander; in MVIT v Nunu [1998] PGSC 38; SC571 a vehicle reversing from a parking position beside a Rabaul street knocked a painter from his ladder. Neither turned on the vehicle being on a carriageway. What mattered was that a motor vehicle was being used, and that the use caused the injury.

Private roads, plantations and mine sites

It follows that an insured vehicle which injures someone on a plantation road, a company compound, a village track or a driveway gives rise to a claim against MVIL like any other. The difficulty in such cases has never been location but whether the vehicle was insured at all. Site vehicles that never leave private land are often unregistered, and until 2021 much heavy equipment was arguably outside the definition of “motor vehicle”. The 2021 amendment addressed the second problem by bringing mining, petroleum, logging and agricultural project equipment within the definition, and defined “street” to include roads inside project sites and private estates; the 2022 New Porgera amendment then excluded that mine. Whether such equipment is in fact insured depends on its being registered under the traffic legislation or otherwise covered by MVIL. See what counts as a motor vehicle and a street.

Where location did matter: the repealed paragraphs

The “public street” requirement lived in section 54(1)(b) and (c), the paragraphs covering uninsured and unidentified vehicles. Parliament was prepared to make the insurer a nominal defendant for vehicles that had paid no premium, but only where the accident happened “in a public street”: “a street, road, lane, thoroughfare, footpath, bridge or place that is open to the public, or to which the public has or is permitted to have access, whether on payment of a fee or otherwise”. The definition was wide — a market, a car park, a wharf or a sports ground open to the public would qualify — but a private plantation road would not. Both paragraphs were repealed in 2021, so for accidents after 21 September 2021 the question no longer arises in damages claims against MVIL. For earlier accidents it still can: see uninsured vehicles and hit-and-run accidents.

Where location still matters

• The offence of using an uninsured vehicle (section 59) and the traffic offences under the Road Traffic Act 2014, most of which are framed around public streets. The 2021 “street” definition extends the reach of section 59 into project sites and private estates.
• Basic Protection Compensation. Section 20(3) of Chapter 296 says compensation is payable “whether the motor vehicle ... was being used on a public street or otherwise”, so location is irrelevant there too.
• Liability itself. Location goes to the standard of care. A driver on a busy street among pedestrians must drive accordingly (David v MVIT [1993] PGLawRp 535; [1993] PNGLR 356: driving too fast near a crowd is negligent). A driver crossing a playing field, as in Kumbe, must expect people to be on it. A driver on a private road may reasonably expect fewer pedestrians, but owes the same duty to those who are there.