[1998] PNGLR 264

PAPUA NEW GUINEA

[national court of justice]

ROVINA NUL

v

MOTOR VEHICLES INSURANCE (PNG) TRUST

goroka: sawong j
21 August and 4 December 1998

practice and procedure – Notice of intention to make a claim to Motor Vehicle Insurance (PNG) Trust – Application for extension of time – "Sufficient cause" – Motor Vehicles (Third Party Insurance) Act (Ch. No. 295) s 54(6).

Facts

Notice of intention to claim against the Trust was not given in time and an application made by the plaintiff to the Insurance Commissioner pursuant to s 54(6)(a) of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295) was refused. The plaintiff/applicant now applies to this Court for an extension of time to give that notice. Section 54(6) provides:

"No action to enforce any claim under this section lies against the Trust unless notice of intention to make a claim is given by the claimant to the Trust within a period of six months after the occurrence out of which the claim arose, or within such further period as –

(a)	the Commissioner; or

(b)	the court before which the action is instituted,

on sufficient cause being shown, allows."

Held

1.	It is settled law that where the Insurance Commissioner refuses to grant an extension of time, an applicant may only apply to the National Court to get the extension: Rundle v MVIT [1988] PNGLR 20 

2.	The plaintiff bears the onus of establishing a "sufficient cause" which expression ought to be interpreted widely because it deals with justice of the case within the circumstances of each case: Rundle v MVIT [1988] PNGLR 20 and Ivia v MVIT [1995] PNGLR 183 adopted and applied.

3.	In the whole circumstances of the case it is important to consider whether the time taken to institute this action (time calculated from the date of accident to the date of serving of notice of intention to claim) prejudices the defendant in defending the matter. Ivia v MVIT [1995] PNGLR 183 adopted and applied.

Papua New Guinea cases cited

Rundle v MVIT [1988] PNGLR 20.
Ivia v MVIT [1995] PNGLR 183.

Counsel

B Tabai, for the plaintiff.
V Mirupasi, for the defendant.

4 December 1998

Sawong j. This is an application by the plaintiff made pursuant to s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295), for an order extending the time in which to give notice of intention to make a claim for damages for personal injuries against the Motor Vehicles Insurance (PNG) Trust. 

The circumstances giving rise to the claim are as follows. On the day of the accident the plaintiff was a pedestrian walking along the side of the Okuk Highway and at Zokozoi when a vehicle hit her registered no. P1510. Tango Maka drove the vehicle at the material time. At that time she was with one of her child. The child darted across the road and she ran after the said child to try and get the child off the road. And it was at that point in time; the said vehicle hit her and knocked her over. The accident occurred on 29 April 1995. The plaintiff was injured as a result of the accident. It is alleged that the driver of the vehicle was negligent.

The plaintiff instructed her lawyers on 21 January 1997. On 22 January 1997, the said lawyers wrote to the Insurance Commissioner seeking an extension of time in which to give notice of intention to make a claim pursuant to s 54(6)(a) of Motor Vehicles (Third Party Insurance) Act. The Insurance Commissioner refused to extend time in a letter dated 25 February 1997.

It is settled law that where the Insurance Commissioner refuses to grant an extension of time; an applicant may then apply to the National Court to get the extension. This was decided in Rundle v MVIT [1988] PNGLR 20. That case also sets out the principles governing the exercise of discretion to extend time. The plaintiff bears the onus of establishing "sufficient cause". This expression ought to be interpreted widely, because it deals with the justice of the case within the circumstances of each case. This would also include the consideration of any prejudice that may have been caused to the defendant by any delay.

In the present case, the plaintiff has given three reasons for the delay. The first is that she does not know the procedure of making a claim against the Trust. She also says that she was not aware that she was required by law to give notice of intention to make a claim to the Trust within six months from the date of the accident. Secondly she says that she had to wait for the police road accident report to be completed. Finally she says that because of financial difficulties, she was unable to instruct lawyers to proceed with this application before the court.

The defendant relies on the affidavit of its claims manager, Mr Doko. Mr Doko says that firstly there was a delay of three years from the date of the accident to the filing of the proceedings. This delay was unreasonable and a long one.

He further states the police accident report was prepared in July 1997. This is not quite correct. The applicant says in her evidence that soon after she was injured and whilst she was in the hospital a police traffic officer went to the hospital and interviewed her and obtained details of the accident. Secondly the said report was not compiled in July 1997. The reviewing officer reviewed the report on or about 13 January 1997.

Essentially the defendant’s argument is that because of the long delay, it would be prejudiced in its defence, as the driver would not be contacted easily.

The issue is whether, in the circumstances of this case, a period of three years and one month (that is from date of accident to date of filing of proceedings) is so long as to cause prejudice to the defendant in defending the matter. In considering this issue, I adopt what Kapi DCJ said in Ivia v MVIT [1995] PNGLR 183, at 185;

"It is not possible to determine precisely at what period in time it can be said that the defendant would be prejudiced. That, of course is always a question of fact. For example if no police report is made giving details of the driver of the vehicle, it would be extremely difficult for anyone in these circumstances to find such a person and obtain instructions. If there are details given in a report, then the defendant would be able to investigate the circumstances of the accident." 

I do not accept the submissions raised by the defendant. It is a large corporation with all its resources to conduct enquires and locates the driver. In any case it now has the details of the driver, the vehicle involved and names of witnesses.

In the present case, I accept the explanations given by the applicant. The delay was not caused solely by the applicant. There were a number of factors, which contributed to the delay. 

In the present case the defendant has a copy of the accident report, which contains the details of driver. The details of the driver are available. The bold assertion that the driver might not be located or is presumed dead is a generalised statement, unsupported by any evidence.

Consequently, I conclude that it is not possible to say that, in the circumstances of this case, the defendant is or would be prejudiced.

In all the circumstances, I have concluded that sufficient cause has been shown and, therefore, I would exercise my discretion to extend time in which to give notice to the defendant.

The plaintiff is to give notice of intention to make a claim within 14 days.

Lawyers for the plaintiff: Pryke & Co.
Lawyers for the respondent: Nii & Mirupasi.