What Must the Owner and Driver Do After an Accident?

The claimant’s notice under section 54(6) gets most of the attention, but the Act also puts obligations on the other side of the accident. They exist to let MVIL investigate and control the claim it will have to pay, and they explain why a driver who says “sorry, it was my fault” at the roadside has not thereby decided the case.

Why the duties exist

MVIL pays for negligence it did not commit and knows nothing about until someone tells it. Section 53 makes the insured people its eyes and ears: the owner and driver must report the accident, co-operate with the investigation and hand over every claim. The prohibition on admissions and settlements protects MVIL’s right, under section 58(1)(a), to “undertake the settlement of a claim against it or any other person under this Act”, and under section 58(2) to require the insured to sign the authorities it needs to conduct the defence. In Jacob v Motor Vehicles Insurance (PNG) Trust [1999] PGLawRp 688; [1999] PNGLR 537 the court observed that because the insurer bears the liability, “it is understandable that s 53(1) requires that the driver and owner ought not to enter into any admission of liability or settlement of any claim without the written consent” of the insurer; ordinarily the driver and owner instruct the insurer on liability, and it is the insurer’s decision.

What a roadside admission is worth

A driver who admits fault at the scene has breached section 53(1)(d), but the admission is not thereby erased. It is evidence, admissible against MVIL as the insurer standing in the driver’s shoes under section 37(6) of the Wrongs (Miscellaneous Provisions) Act. What the admission cannot do is bind MVIL to pay: liability is decided by the court on all the evidence, and MVIL may run any defence the driver could have run. Similarly, customary compensation paid by the driver’s relatives after an accident is not a settlement binding MVIL; the courts treat it as a payment to be deducted from the damages eventually awarded, as in Wisi v MVIT [1992] PGNC 12; N1040 and Kosam v MVIT [1993] PGLawRp 557; [1993] PNGLR 481.

The notification is confidential

Section 53(3) provides that a notification under the section “is not subject to discovery and is not admissible in evidence in any proceedings ... except proceedings for failure to comply with this section”. The driver’s own account to the insurer is therefore protected, so that drivers are encouraged to report candidly. Claimants cannot obtain it on discovery and cannot use it at trial. The police accident report is a different document, prepared under the traffic legislation, and is routinely used — though, as the Supreme Court held in MVIL v Ken [2023] PGSC 170; SC2522, it must be put in through the officer who made it or by consent.

The duty to say whether the vehicle was insured

Section 63(1) requires the owner of a vehicle in respect of which a claim is made to state, on demand by or on behalf of the claimant, whether or not he was insured under the Act, or would have been but for MVIL avoiding or cancelling the certificate. Failing to answer without reasonable excuse, or answering falsely, is an offence carrying a fine of up to K500. Since 2021 this duty has real value to claimants, because proof of insurance is now the threshold of any claim against MVIL. A written demand under section 63, and the owner’s written answer, should be part of every claimant’s file.

When section 53 does not apply

Section 53(2) allows the notifications to be given by someone on the owner’s or driver’s behalf — a relative, an employer, a lawyer. Section 53(4) excludes the whole section where the person killed or injured was the owner and the owner was driving at the time: there is then no third party liability to insure, as Kiak v Tora Enterprises confirms, and no one for MVIL to defend.