Who Can Sue When Someone Is Killed in a Road Accident?

A claim for a death is not the deceased’s own claim carried on by relatives. It is a separate cause of action, created by statute, belonging to particular people. Getting the right plaintiff on the writ is the first thing a family’s lawyer must do.

The cause of action: Part IV of the Wrongs Act

Section 25 of the Wrongs (Miscellaneous Provisions) Act (Chapter 297) provides that where death is caused by a wrongful act, neglect or default which would have entitled the deceased to sue had he lived, the person who would have been liable “is liable to an action for damages notwithstanding the death”. In a motor vehicle case that person is the negligent driver or owner, and section 54 of the Motor Vehicles (Third Party Insurance) Act redirects the action to MVIL, which section 37(6) of the Wrongs Act deems the tortfeasor. The Supreme Court confirmed in Ambo v MVIT [2002] PGSC 21; SC681 that a claim for a road death “is an action based on statute”, governed by the Wrongs Act and not by the common law.

For whose benefit

The customary extension has been applied generously. In Waima v MVIT [1992] PGLawRp 598; [1992] PNGLR 254 the deceased’s parents recovered on the basis that “there is an obligation in society by custom or purely family love for a son who is in a wage or salaried employment to assist his parents”. In Jack v MVIT [1991] PGNC 50; [1991] PNGLR 443 a second wife and the parents-in-law were included. In Waine v MVIT [1993] PGLawRp 551; [1993] PNGLR 446 three wives and three children of a provincial minister all recovered. A customarily adopted child was included in Elewai v MVIT [1992] PGLawRp 615; [1992] PNGLR 34, though with a reduced share. Parents of a teenage son were held to have a valid, if cautiously valued, dependency claim in MVIL v Manduru [2018] PGSC 93; SC1750.

Who is the plaintiff

Section 26(1) requires the action to be “brought by and in the name of the executor or administrator” of the deceased. Where there is no personal representative, or none has sued within six months of the death, section 27 allows the action to be brought “by all or any of the persons for whose benefit the action would have been”. Most Papua New Guinean road death claims are brought this way, typically by the widow “for herself and on behalf of” the children and other dependants. The pleading must say so. In Ambo v MVIT [1999] PGNC 124; N2162 the deceased’s elder brother sued without pleading that he was the personal representative or that the action was brought for the estate or the dependants; the court asked “what right the plaintiff has to bring this suit” and, with the claim also out of time, dismissed it.

Naming every dependant

Section 32 requires the plaintiff to deliver with the statement of claim “full particulars of the person for whom and on whose behalf the action is brought, and of the nature of the claim”. The consequence of omission is severe: in Collins v MVIT [1990] PGLawRp 323; [1990] PNGLR 580 the court held that “a dependant who is not specifically mentioned in the writ ... cannot claim for dependency loss”. Mongogl v MVIT [1985] PGLawRp 490; [1985] PNGLR 300 fixed the minimum for children as their names, ages and sex, and required the representative capacity to appear in the title of the writ, while allowing defects to be cured by amendment. Because section 31 permits only one action for the same death, a dependant left out cannot start a second one.

The estate’s own claim

Separately from the dependants, the deceased’s estate has a claim under Part V (section 34) for the causes of action that survived the death: the deceased’s own pain and suffering before death, and the conventional sum for loss of expectation of life. That sum, long fixed at K3,000, was raised to K8,000 in Manduru, the Supreme Court calling the old figure “inappropriate and unrealistic”. Funeral expenses are recoverable by whoever paid them (section 28(2)), but only if pleaded (MVIL v Kiangua [2015] PGSC 70; SC1476). A parent may also claim a solatium of up to K600 for the death of a child under section 29.

Time and notice

The action must be commenced within three years after the death (section 31), a rule the Supreme Court in Ambo and the National Court in Lama v MVIL [2025] PGNC 461; N11612 have applied without exception. The six-month notice to MVIL under section 54(6) applies to death claims exactly as to injury claims, although correspondence about the death and MVIL’s payment of Basic Protection Compensation may amount to notice (MVIL v Pojari [2005] PGSC 25; SC799).