What Does “Caused By or Arising Out of the Use of a Motor Vehicle” Mean?

Both the cover and the right to claim depend on the injury being “caused by, or arising out of the use of” the vehicle. The words are wide, and the reported cases show how far they reach and where they stop.

Two limbs, the second wider than the first

“Caused by” describes the direct case: the vehicle strikes a pedestrian, collides with another vehicle, overturns with passengers aboard. “Arising out of the use of” is broader. It captures injuries connected with the vehicle’s use as a vehicle even where the vehicle did not itself deliver the blow — a load that falls, a passenger thrown as the vehicle moves off, a person struck by something the vehicle sets in motion. The courts have not attempted an exhaustive definition, preferring to decide each case on its facts, but the pattern is clear enough.

Working machinery in public places

In Nidop v MVIT [1989] PGLawRp 70; [1988-89] PNGLR 635 a forklift driver unloading a truck in a public area struck the plaintiff on the head. The court held that the driver “had a duty of care to ensure that the procedure was carried out in a manner which did not endanger other persons who might be expected to be in the area”, and the Trust paid K8,000. In Terema v MVIT [1994] PGLawRp 599; [1994] PNGLR 41 a back hoe working on a public street, blocking the way of passers-by, knocked a woman down so badly that her leg was amputated; the court held that operators of dangerous machinery in public streets “have a heavy responsibility to take appropriate precautions” and that the onus was on the operator to prove accident or the plaintiff’s own negligence. Both were “use” of a motor vehicle within the Act.

Parked, reversing and stationary vehicles

A vehicle need not be travelling along a road. In MVIT v Nunu [1998] PGSC 38; SC571 a driver came out of his office, got into his vehicle parked with its back towards a ladder across the road, and reversed into it; the painter on the ladder recovered damages, confirmed by the Supreme Court. The definition of “driver” as including “a person for the time being in charge of a motor vehicle” fits this: the vehicle was in use from the moment the driver took charge of it.

Passengers falling from vehicles

This is where most of the difficult cases lie, because Papua New Guineans travel in large numbers on the open trays of utilities and trucks. Where the fall results from the way the vehicle was driven, the injury arises out of its use and the driver is liable, subject to contributory negligence. In Nomane v MVIT [1991] PGNC 23; N1019 a passenger in the back fell off “when the vehicle took off”; the driver was liable and the plaintiff recovered K8,000 for a 15 per cent shoulder disability. In Kopele v MVIT [1983] PGLawRp 505; [1983] PNGLR 223 a passenger fell from an overcrowded truck; the driver was 30 per cent liable for allowing the overcrowding.

Where the passenger’s own act is the operative cause, the claim fails or is heavily reduced. In Sinowa v MVIT [1991] PGNC 15; N980 a passenger alighting from the back as the vehicle drove off could not prove negligence by the driver. In MVIT v Kuman [1991] PGNC 17; N985 a passenger stood up on a moving utility to attend to a pig and fell; on appeal from the District Court, liability was apportioned 50 per cent. In MVIT v Enn [1991] PGNC 16; N987 a door opened and a passenger fell out; because the door was wholly within the passenger’s own control, the District Court’s award was set aside. And in Nugints v MVIT [1992] PGNC 38; N1117 an intoxicated man ran across the road and tried to climb onto a moving vehicle; the driver, with no warning and no request to stop, owed him no duty that was breached.

Causation: the chain from negligence to injury

MVIL sometimes argues that something after the accident, rather than the accident itself, caused the ultimate injury. In Kumbe v MVIL [2005] PGNC 110; N2860 the defendant contended that the plaintiff’s quadriplegia was caused or aggravated by “inappropriate primary trauma care given by bystanders who transported the plaintiff to the hospital”. The court rejected the argument: there was no break in the chain of causation, and a negligent driver takes the risk that the injured person will be rescued by untrained bystanders on a Papua New Guinea road. Conversely, a claimant must show that the disabilities complained of flow from the accident and not from later, unrelated conditions: in Paraka v MVIT [1992] PGNC 11; N1041 the plaintiff’s osteoarthritis, enlarged liver and spleen five years later could not be attributed to the accident, and only a nominal K1,500 was awarded.

Death some time after the accident

For a damages claim, a death that results from the injuries, however long after, is a death “caused by” the use of the vehicle; the three-year limitation period runs from the death. The Basic Protection Compensation Act is different: section 3 excludes a death occurring more than 90 days after the accident. See Basic Protection Compensation.