Daguma v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 6; N955 (22 February 1991)

Unreported National Court Decisions

N955

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 697 OF 1988
JACOB DAGUMA
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
8 February 1991
22 February 1991

PRACTICE - Notice of action - Motor Vehicle Accident - Personal injuries - Notice to Motor Vehicles Insurance (PNG) Trust - Extension of time for - to whom and how made.

Case Cited

Rundle v Motor Vehicles Insurance (PNG) Trust 1988 PNGLR 20

Counsel

P. Kopunye for the Plaintiff.

R. Thompson for the Defendant.

INTERLOCUTORY JUDGMENT

22 February 1991

WOODS J: The tiff alleges that he s he sustained injuries in a motor vehicle accident on the 28th April 1984 and that he is thereby entitled to claim damages from the Motor Vehicles Insurance (PNG) Trust btue of the Motor Vehicle (Tle (Third Party Insurance) Act Chapter 295.

The Act in s.54(6) requires the notice of intention to make a claim must be given within a period of 6 months after the occurrence out of which the claim arose or within such further period as the Insurance Commissioner allows.

The Plaintiff did not give notice to the Defendant of his intention to make a claim within the 6 months. On 24th April 1985 the Plaintiff’s lawyers wrote to the Insurance Commissioner making an application for an extension of time within which to give notice. They copied this application to the Trust. On 10th May 1985 the Insurance Commissioner refused this Application. On the 20th August 1985 the Plaintiff’s lawyers made a further application to the Insurance Commissioner for an extension of time and on the 26th August 1985 the Insurance Commissioner purported to grant that application.

However, the Supreme Court in the case Rundle v M.V.I.T. 1988 PNGLR 20 has clearly established that the Insurance Commissioner does not have power to consider a second application for an extension of time. The Court clearly indicated that a claimant can only apply once to the Commissioner, he cannot apply a second time as he did in that case, see Bredmeyer J at P.24 and Amet J at P.30. Thus the second Application to the Commissioner was wrong and his granting of the extension at that application was beyond his power.

Therefore clearly on the principles clarified in Rundle’s case the letter of the 26th August 1985 from the Insurance Commissioner was beyond power. Going further which is not necessary here, it is noted that that extension purportedly granted on the 26th August 1985 was not complied with as the purported extension was only to the 24th September 1985 and purported notice was not made until 16th October so the Plaintiff was still not in compliance with the conditions precedent to making a claim. Further the purported notice itself dated 16th October can hardly be called a notice of intention to make a claim as it is merely a covering letter annexing the letter of the Insurance Commissioner.

The 2nd Application to the Commissioner was clearly without power. The only step that the Plaintiff could then take was to apply to the Court as per s.54(6) of the Act. As the Court in Rundle’s case pointed out. “A claimant may apply once only to the Commissioner or to the Court; if an application to the Commissioner fails or is granted and not complied with a further application may only be made to the Court; if an application to the Court is refused the only second chance is an appeal to the Supreme Court”. That is a clear statement of the law as it stands now and at the time the claimant had his accident. Any submission that the claimant or his lawyers did not know that was the law until Rundle’s Case stated it cannot be considered. Rundle’s case provides the clear statement of what s.54(6) has always stated.

s.54 of the Act requires that before any claim can be made notice must be given. The section sets out certain requirements for the notice. These have not been met. The Plaintiff has not complied with the condition precedent and he therefore has no cause of action against the Defendant.

The proceedings must therefore be dismissed with costs.

Lawyer for the Plaintiff - P. C. Kopunye Lawyers

Lawyer for the Defendant - Young & Williams