Application of Dim John Goiya [1992] PGNC 26; N1086 (22 July 1992)

Unreported National Court Decisions

N1086

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 95 OF 1992
IN THE MATTER OF S. 54 (6) OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT CH. 295.
THE APPLICATION OF DIM JOHN GOIYA

Mount Hagen

Woods J
19 June 1992
22 July 1992

LIMITATION OF ACTIONS - Notice of intended action - personal injuries - motor vehicle accident - notice to Motor Vehicles Insurance (PNG) Trust - application for extension of time - Exercise of discretion - unusual nature of the accident.

Cases Cited

Rundle v M.V.I.T. [1988] PNGLR 20

Application of Sir Kepa Pupu 1992 Unreported N1077

Counsel

D. Poka, for the Plaintiff

A. Kandakasi, for the Defendant

22 July 1992

WOODS J: This is an applicatir an e an extension of time under s.54(6) (b) of the Motor Vehicles (Third Party Insurance) Act Ch 295 to give notice of intention to make a claim to the Motor Vehicles Insurance (PNG) Trust.

s.54 (6) states:

N

No action to enforce any claims 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) ټ&##160; T60; The Come Commissioner, or

b) ـ Tue Coeft before which theh the action is instituted on sufficient cause being shown, allows.

The Applon al thate she was walkiong the road near the Hagen Technical College a power pole fele fell anll and hitd hit her her and injured her and knocked her unconscious. She later learnt that the accident happened as a result of a Nissan truck Registration No AEM 383 hitting the power pole with a bulldozer that was on its tray. This accident happened on the 16th November 1990. She was in hospital for almost a month. She now wishes to seek damages as a result of the injuries she received. In September 1991 the applicant apparently gave instructions to a lawyer to make a claim for damages. In the same month the lawyer wrote to the Insurance commissioner seeking an extension of time in which to lodge a claim. This application was refused in October 1991. The applicant in April 1992 has filed this application.

The law is quite clear that no claim can be made against the Trust unless notice has been given. And the Parliament having considered all matters relevant has legislated that an original action by a notice must be made within 6 months of the incident. Parliament has accordingly considered that any person in this country would take immediate action to press for compensation following receiving personal injuries fairly soon after an accident and six months would be an appropriate limiting period. Perhaps this would be appropriate considering the propensity for people to be quick to claim damages for any alleged wrong. Such a limitation also allows the trust to quickly ascertain the history or facts necessary for the proper consideration of the claim before the so-called trail runs cold or while it is still possible to contact people involved whilst their memory of the incident may still be fresh.

The section requires that sufficient cause must be shown before an extension of time is given. The Supreme Court in Rundle v M.V.I.T. [1988] PNGLR 20 said that the power of a court under s.54 (6) to grant an extension of time in which to give notice of intention to make a claim is a discretionary one to be exercised according to proper principles and taking into account all the circumstances of the case.

In the Application of Sir Kepa Pupu 1992 Unreported N1077 I considered that the reasons given in the request were not such that I should grant an extension of time as I felt that it was unusual for a man who was clearly struck by a vehicle not to have taken any action to seek compensation or seek out the owner of the vehicle before he did and it was surprising that there was no evidence of anyone showing any concern for 10 months.

However in the case before me now we have a rather unusual incident where the applicant was not actually struck directly by a motor vehicle but rather by something else that the vehicle struck through being loaded with a bulldozer which must have extended beyond the sides of the tray of the vehicle. This may have cast doubts in the minds of the applicant and whether there is any claim against the Trust may yet be a matter for argument in any full hearing. I notice that the Trust has received details of the possible claim and the Police accident report in September 1991 so it is not too disadvantaged by the extension of time.

I am satisfied that the circumstances of the incident are sufficiently unusual for the Court to appreciate that there may have been some doubts about making any claim or who to make such a claim against and therefore the Court should be bound to exercise its discretion to extend the time within which to give notice of any claim.

I therefore extend the time in which notice of intention to make a claim is to be given to the Trust till the 22nd August 1992. I order that the applicant pay the respondents costs on this application.

Lawyer for the Plaintiff: Kopunye Lawyers

Lawyer for the Respondent: Young & Williams.