Laime, (an infant by her next friend, Willie Laime) v Motor Vehicles Insurance (PNG) Trust [1995] PGNC 130; [1995] PNGLR 224 (1 August 1995)

PNG Law Reports 1995

[1995] PNGLR 224 - Carol Laime, an infant by her next friend, Willie Laime v Motor Vehicles Insurance (PNG) Trust MVIT 

[1995] PNGLR 224

N1352

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CAROL LAIME AN INFANT BY HER NEXT FRIEND WILLIE LAIME

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

16 June 1995

1 August 1995

PRACTICE AND PROCEDURE - Notice of intention to make a claim against the Motor Vehicles Insurance (PNG) Trust - Extension of time for - Procedure - Extension of time does not validate irregular notice..

Facts

Section 54(6) of the Motor Vehicle(Third Party Insurance) Act (Ch 295) provides that no action lies against the Trust unless notice of intention to make a claim is given within a 6 month period after the accident, or within such period as the Insurance Commissioner or the Court allows. The plaintiff was allegedly injured in a motor vehicle accident in April 1990. In April 1991, a letter purporting to be notice to mke a claim was sent to the Trust. No claim was made.

An application was made to the Insurance Commissioner in 1993 and on 23 March 1993 the Commissioner approved an extension of 28 days.

The lawyer did not give notice to the Trust within the 28 days allowed, he only forwarded the extension letter but made submissions on the claim in July 1993. The defendant applied to the Court to dismiss th eproceedings for failing to give notice in accordance with s 54(6) of the Motor Vehicle (Third Party Insurance) Act.

Held

N1>1.       An approval of an extension of time by the Insurance Commissioner extended the time in which to send a notice of intention to make a claim. It is not a retrospective approval of an earlier communication that was made, but which did not comply with s 54(6) of the Motor Vehicles (Third Party Insurance) Act. (Rundle v MVIT [1988] PNGLR 20 followed).

N1>2.       Notice of Intention to make a claim is a condition precedent to the commencement of any action to enforce a claim (Rundle v MVIT [1988] PNGLR 20 followed).

N1>3.       The right to proceed against the Trust is a right given by statute so the parameters of that right must be found within the legislation and section 54 is quite specific.

Cases Cited

Application of Andakundi [1992] Unreported N1087.

Application of Kuri [1992] Unreported N1107.

Dick v M.V.I.T.[1993] PNGLR 443.

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

Counsel

D.L.O’Connor, for the plaintiff.

A Kandakasi, for the defendant.

1 August 1995

WOODS J: This is an application to dismiss the proceedings for failure to comply with the requirement to give notice to the Motor Vehicles Insurance (PNG) Trust as laid down in s 54(6) of the Motor Vehicle (Third Party Insurance) Act Ch 295. This objection to the claim was included in the defence filed by the defendant and has now been raised as a preliminary argument by way of notice of motion.

It has been submitted on behalf of the defendant that the requirements of s 54(6) have not been met and such failure removes any right of action against the Trust. Section 54 provides that in certain circumstances claims arising out of the death or personal injury to any person caused by or arising out of the use of a motor vehicle should be made against the Trust and not against the owner or driver. This is an exception to the normal rule of law that claims for damages should be made against the party who caused the injury or damages. The Section sets out how such claims are to be made and subsection (6) clearly places limitations on such claims. Section 54(6) No action to enforce any claim under this section lies against the Trust unless notice or intention to make a claim is given by the claimant to the Trust within a period of 6 months after the occurrence out of which the claim arose, or within such further period as:

N2>(a)      the Commissioner; or

N2>(b)      the court before which the action is instituted, on sufficient cause being shown, allows.

Therefore unless a claimant clearly comes within s 54 of the Act there can be no right to claim against the Trust, and any purported proceeding or right must be unenforceable.

In this case before me, the plaintiff is alleged to have been injured in a motor vehicle accident in April 1990. No notice was given to the Trust in the following 6 months so therefore initially there can be no action against the Trust. In April 1991 a letter was sent to the Trust purporting to be notice of a claim or intended action. Of course this can mean nothing and there was no liability or obligation on the Trust to consider the claim being as it is a Corporation set up under the legislation and dealing with what are in effect public monies and therefore accountable under the Act, to only consider claims properly lodged under s 54.

However it appears that the Trust did attempt albeit unsuccessfully to do its own investigation to ascertain the background to the accident so that it would be better ready if an appropriate late application for notice was granted. In the meantime the lawyer for the plaintiff made application as provided for in s 54(6) to the Insurance Commissioner for an extension of time in which to make the claim. This application for an extension of time was not made till 1993 and on 23 March 1993 the Insurance Commissioner approved an extension of 28 days to proceed. It must be noted here that such approval is not a revival of any earlier purported notice, it is an approval of an extension of time in which to give notice of intention to make a claim. This was considered in the case Rundle v M.V.I.T. [1988] PNGLR 20 and as Amet, J stated in this case “In any event what is more important is that the Commissioner granted a second extension of 28 days on 23 August 1984 to run from that date and not retrospective to extend from 2 to 15 November 1983. No Notice of any kind was served on the Trust within the further extended time.” I adopt the principles that these words highlights namely that an approval of an extension of time is what it says, an approval of an extension of time in which to send a Notice of Claim, but not a retrospective approval of any communication that may have been made previously but which did not comply with s 54(6).

The lawyer for the plaintiff did not comply with s 54 (6) and the extension granted by giving notice within the 28 days from 23 March. All he did was forward a copy of the Insurance Commissioner’s letter granting the extension. Perhaps he assumed the approval was retrospectively resurrecting the earlier communication. Then some months later in July 1993 the lawyer for the plaintiff forwarded submissions to the Trust on the claim.

There was therefore no Notice of Intention to make a Claim which complies with the requirements of s 54 of the Act. As was said by the Supreme Court in Rundle’s case above referred to, “Notice Of Intention to make a claim is a condition precedent to the institution or commencement of any action to enforce a claim.”

There have been a number of cases that have come before the National Court since Rundle’s case where the Court has considered the requirements of Notice of Intended action and has been asked to exercise its discretion to extend time. In Application of Kuri [1992] unreported N1107 the Court refused an extension of time as there was no firm basis for the actual claim. In the Application of Andakundi [1992] unreported N1087 the Court refused an application for an extension of time. In Dick v M.V.I.T. [1993] PNGLR 443 the facts were very similar to the present case where the Insurance Commissioner had granted an xtension of time and there had been no notice of Intended action made to the Trust within that extended time. It was made clear in that case that a later approval for an extension of time does not revive an earlier invalid notice. And the principles enunciated by Amet, J in Rundle’s case were referred to and the proceedings were dismissed. So there have been ample cases before the Courts to warn lawyers of the dangers of disregarding the requirement of notice in s 54.

As I have already said above the right to proceed against the Trust and not directly against the owner or driver or other negligent party is an abrogation of the normal position at law. This right is a right given by statute so the parameters of that right must be found within the legislation and s 54 is quite specific. The Trust is in effect dealing with the accumulated funds of thousands of motor vehicle owners and this must be akin to public monies so the Trust is itself bound by the legislation to only deal with such monies strictly in accordance with the parameters of the legislation.

The plaintiff has not been brought within the requirements of the legislation, has not complied, therefore the claim against the Trust cannot be maintained.

I dismiss the proceedings and strike out the writ of summons.

Lawyer for the plaintiff: D.L.O’Connor.

Lawyer for the defendant: Young & Williams.