Application of Jack Lucas Kuri [1992] PGNC 54; N1107 (18 August 1992)

N1107

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 181 OF 1992

In the Matter of s.54 (6) of the MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT CH. 295.

APPLICATION OF JACK LUCAS KURI

MOUNT HAGEN: WOODS, J
18 August, 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 - is there a firm basis for the claim - confusion over identity of vehicle - confusion over medical attendances.

Cases Cited:
Rundle v M.V.I.T. [1988-89] PNGLR 20
Application of Sir Kepa Pupu 1992 Unreported N1077.

P. Dowa, for the Plaintiff
A. Kandakasi, for the Defendant.

18 August 1992.

WOODS J: This is an application for 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:

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) The Commissioner, or

b) The Court before which the action is instituted on sufficient cause being shown, allows.

The Applicant states he was working for a Company at the Porgera Gold Mine and another employee of the same Company asked him to get onto a truck and help him collect an oxy bottle. They then drove down to a market at a village on the main highway outside the mine site and bought some cigarettes. On the way back to the work site the driver lost control of the vehicle and the vehicle rolled backwards off the side of the road. The applicant states he was injured and hospitalised. He states the accident happened on the 20th February. Apparently the accident was not reported to the police so no police report was compiled. The Applicant states he attended the Medical Center in April. He also says he sought workers compensation through his employer company but apparently nothing happened. He sought legal advice in September 1991 that is 7 months after the accident and the lawyer wrote to the Insurance Commissioner seeking an extension of time. That was refused.

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. [1988-89] 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.

In this case as the applicant was really only one month out of time and there seemed to have been some difficulties in getting the incident properly reported a court could exercise its discretion in favour of the Applicant. However the one month out of time is not the only matter to be considered. As the Supreme Court said in Rundles case cited above the court should take into account all the circumstances of the case. So surely this must include the basis of the claim namely the clear identification of the vehicle concerned and the relevance of any alleged injuries to the accident. Thus the Applicant must show what we would call a prima facie case against a particular vehicle, whether clearly identified and therefore insured or clearly unidentified. However here on the material before the court there is confusion over the identity of the vehicle, whether it was a Toyota Dyna or a Mazda utility, and there is no Police Road Accident Report to assist any authorities. On the alleged injuries the Medical Reports do not refer the injuries to an accident on the 20th February.

Therefore after considering all the circumstances I find that questions can be asked as to the very basis of the claim and therefore the material before the court is not sufficient for a court to grant an extension of time.

The Application is refused.

Lawyer for the Applicant: P. Dowa
Lawyer for the Respondent: Young & Williams