What Must I Prove to Win a Claim Against MVIL?

MVIL is a well-resourced defendant that fights claims it thinks are weak or fabricated, and the courts have dismissed a good number of them. Understanding what has to be proved, and by what evidence, is the difference between the cases in the damages index and the cases that ended with judgment for the defendant.

The elements

In Moses v Motor Vehicles Insurance (PNG) Trust [1993] PGLawRp 509; [1993] PNGLR 63 the court said a claimant must prove three things: “there must be an accident; then there must be a vehicle properly identified ...; then there must be injuries or loss of life because of negligence”. Later decisions split the last into its components. In John v Motor Vehicle Insurance Ltd [2022] PGNC 400; N9973 the court spoke of “the five elements required for negligence” and dismissed the claim because the plaintiff had not satisfied them. Put together:

Onus and standard

The onus is on the claimant throughout, and the standard is the civil one. Cannings J in Kumbe v MVIL [2005] PGNC 110; N2860 held that the claimant “has the onus of proving that the injury was caused by or arose out of the use of a motor vehicle in the circumstances prescribed by section 54(1)” and that “the relevant standard of proof is on the balance of probabilities”; the Supreme Court adopted both propositions in MVIL v Kawage [2014] PGSC 57; SC1362. Where MVIL calls no evidence, the claimant’s evidence, if credible and corroborated, will usually carry the day, as it did in Kumbe. Where MVIL puts the facts in issue, the claimant must meet them.

Proving the accident happened

It is not enough to say so. In Goi v MVIL [2010] PGNC 87; N4093 the only evidence that an accident occurred was the plaintiff’s own, uncorroborated and contradicted by his witness; the court evaluated each witness separately and found the accident unproved. In Jonnah v MVIT [1990] PGNC 43; N875 a widow’s claim failed on conflicting stories, no independent evidence and a scene that was never preserved. In Kulau v MVIL [2008] PGNC 238; N3700 the court found the evidence of the plaintiffs and their witness “totally unreliable, contradictory and ... concocted” and recommended a perjury prosecution. And in Moip v MVIT [1993] PGLawRp 558; [1993] PNGLR 485, with no police accident report and no contemporaneous medical records, there was “no evidence that the injuries alleged were so received”.

The corroboration the courts look for is the police road accident report, contemporaneous hospital records, and independent witnesses — other passengers, bystanders, the driver. Since MVIL v Ken [2023] PGSC 170; SC2522 the police and medical reports must be put in evidence through the officer or doctor who made them, or by consent; otherwise they are hearsay and carry no weight. See what medical evidence a claim needs.

Proving negligence

The accident itself is not proof of fault. In Nekiye v MVIL [2018] PGNC 245; N7345, upheld by the Supreme Court in Nekiye v MVIL [2019] PGSC 76; SC1846, the plaintiff could not prove on the balance of probabilities that the driver was negligent, and judgment went for the defendant. In Temai v MVIT [1994] PGNC 1; N1442 a burst tyre was not shown to be the driver’s fault. On the other hand, where a vehicle simply rolls over on a straight road with no explanation, the courts have applied res ipsa loquitur and inferred negligence: Ambom v MVIT [1992] PGNC 37; N1116 and Oni v MVIT [2004] PGNC 16; N2767. The standard of care and the common fact patterns are covered in what standard of driving the law expects.

Pleading the elements

Each element must be pleaded as a fact. Kei v MVIT [1992] PGLawRp 588; [1992] PNGLR 195 held that an “assertion by stating s 54” without alleging the facts is insufficient. John v MVIL dismissed a claim whose statement of claim “has not pleaded all the material facts necessary to establish a cause of action”, and whose plaintiff relied on her lawyer as the primary witness. The particulars of negligence — speed, position on the road, failure to keep a lookout, overloading — should be set out, along with the vehicle’s registration and insurance and the injuries. The site’s National Court series explains what a pleading must contain.