Who Do I Sue After a Motor Vehicle Accident — the Driver, the Owner or MVIL?

In most legal systems the injured person sues the person who hurt them. Papua New Guinea’s motor accident law does something different, and getting it wrong at the start can cost the whole claim.

Why MVIL, and not the driver, is the defendant

The section does two things. It gives the claimant a direct statutory right against the insurer, so that the claimant does not depend on the driver co-operating, being found, or having any money. And it protects the driver and owner from being sued at all, up to the insured limit. The Supreme Court in Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PGSC 28; [1988-89] PNGLR 20 explained the corresponding price: because the Trust is sued for someone else’s negligence, it needs early notice so that it can find the driver, take a statement, check the insurance and investigate defences. That is the origin of the six-month notice in section 54(6), the subject of the next article.

The Wrongs (Miscellaneous Provisions) Act (Chapter 297) completes the picture. Section 37(6) deems the insurer, in a section 54 case, “to be a tort-feasor in relation to the death or bodily injury in question, if the insured person was a tort-feasor”, and “to be responsible for the damage to the same extent as the insured person would have been held to be responsible if sued”. MVIL therefore has every defence the driver would have had — no negligence, contributory negligence, causation — and no more liability than the driver would have had.

What the claimant must prove

Standing in the driver’s shoes means the claimant must prove the case that would have succeeded against the driver, plus the statutory elements. Moses v Motor Vehicles Insurance (PNG) Trust [1993] PGLawRp 509; [1993] PNGLR 63 lists three: an accident; a properly identified vehicle; and injury or death caused by negligence. To those the modern cases add proof that the vehicle was insured: in Motor Vehicles Insurance Ltd v Kawage [2014] PGSC 57; SC1362 the Supreme Court confirmed that the claimant bears the onus, on the balance of probabilities, of proving that the injury was caused by or arose out of the use of a motor vehicle in the circumstances section 54(1) prescribes. Where the pleadings do not allege these facts the claim fails at the threshold, as it did in John v Motor Vehicle Insurance Ltd [2022] PGNC 400; N9973. A later article works through the elements.

Where the owner and driver fit in

They are not parties, but they are not ignored. Section 55 requires a copy of the claim to be served, “where possible”, on the owner and, if a different person, on the driver, and allows them to be represented at the hearing “as though they were parties”. Section 53 obliges them to report the accident to MVIL and to give MVIL the information and help it reasonably requires, and forbids them from admitting liability or settling without MVIL’s written consent. In Jacob v Motor Vehicles Insurance (PNG) Trust [1999] PGLawRp 688; [1999] PNGLR 537 the court noted that the driver and owner would ordinarily instruct the insurer on liability, which is why they may not concede it themselves.

There is one situation in which the owner or driver must be joined: where the claimant expects damages to exceed the K150,000 limit and wants the excess awarded against them under section 54(5). In Pickthall v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 73; [1991] PNGLR 113 the court held that the plaintiff’s only route to damages above the cap is to plead the excess specifically and seek an award under that subsection. Pierce v Motor Vehicles Insurance (PNG) Trust [1989] PGLawRp 53; [1988-89] PNGLR 480 allowed the owner and driver to be joined after the limitation period where they had been served with a copy of the claim within it. The mechanics are in what happens if damages exceed the limit.

Where the driver is dead, missing or the claimant’s spouse

Section 54(3) provides that a claim may be made and proceedings taken “notwithstanding that the owner or driver of the motor vehicle is dead, or cannot be found, or is the spouse of the person” injured or killed. The third case removes the old common law bar on spouses suing each other in tort. In Kosam v Motor Vehicles Insurance (PNG) Trust [1993] PGLawRp 557; [1993] PNGLR 481 a school teacher was struck and killed by a vehicle driven by her own husband; her parents and children recovered dependency damages from the Trust, with liability apportioned at 50 per cent.

Uninsured and unidentified vehicles

Until 21 September 2021, section 54(1) also directed to the insurer claims arising from an uninsured motor vehicle in a public street (paragraph (b)) and from a vehicle on a public street whose identity could not be established after due inquiry and search (paragraph (c)). The 2021 amendment repealed both. For accidents after that date, a person injured by an uninsured or unidentified vehicle has no claim against MVIL and must sue the driver and owner, if they can be found. Accidents before that date are still governed by the old paragraphs. See uninsured vehicles and hit-and-run accidents.