Kawai an infant by her next friend Kawai Takeme v Motor Vehicles Insurance (PNG) Trust [1996] PGNC 6; N1651 (6 May 1996)

Unreported National Court Decisions

N1651

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 907 OF 1994
BETWEEN: JOY KAWAI AN INFANT BY HER NEXT FRIEND KAWAI TAKEME
PLAINTIFF
AND: MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT

Mount Hagen

Injia J
9 April 1996
6 May 1996

PRACTICE AND PROCEDURE - Notice of intended action - Personal injuries - Motor Vehicle Accident - Sufficient notice - Purported letter giving notice of claim to Trust given without first obtaining extension from Insurance Commissioner - Whether subsequent mere provision of Insurance Commissioner’s letter granting extension of time to give notice is “sufficient notice - Motor Vehicles (Third party Insurance) Act (Ch. No. 295), S. 54(6)

Cases Cited

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

Stanley Tendi -v- M.V.I.T. N 1423 (1996)

Counsel

D. O’Connor for the Respondent/Plaintiff

A. Kandakasi for the Applicant/Defendant

6 May 1996

RULING

INJIA J: By motion on notice, the Defendant applies for orders, inter alia, that the proceeding be dismissed for want of notice to the Defendant pursuant to S. 54 (6) of the Motor Vehicles (Third Party Insurance) Act (Ch. 295), (“the Act”). The application follows pleadings to that effect in the Trust’s Amended Defence filed on 17th October 1995.

A brief chronology of events relating to giving of notice of the claim is necessary. On 17th December 1991, the Plaintiff claims he sustained personal injuries in a motor vehicle accident involving motor vehicle Reg. AGM 267 somewhere on the Okuk Highway between Wapenamanda and Wabag. By letter dated 25th February 1993, the Plaintiff’s lawyer, Mr O’Connor, gave notice of the claim to the Trust without first obtaining approval for an extension of time from the Insurance Commissioner or the Court as required by S. 54(6) of the Act. There is no evidence showing the Trust received this letter. On 13th April 1993, Mr O’Connor applied to the Commissioner for extension of time. By letter dated 6th May 1993, the Commissioner approved an extension of 28 days. Under cover of letter dated 24th May 1994, Mr O’Connor forwarded to the Trust a copy of the Commissioner’s letter and noted in the covering letter “that I forwarded a notice of claim for the matter of Joy Kawai .... on the 25th of February 1993” and acknowledged that “I do not have any letter from your office giving your file reference”. He did not enclose a copy of his letter of 25th February 1993. by letter dated 9th September 1993. On 24th August 1994, Mr O’Connor wrote to the Trust seeking the latter’s advise on whether the subject motor vehicle was insured. On 30th August 1994, the Trust whilst acknowledging receipt of this letter noted that Mr O’Connor’s letter did “not constitute formal Notice to the Trust under the terms of the Act”. On 14th October 1994, Mr O’Connor wrote to the Trust saying that his letter of 24th August 1994 was not intended to give notice of the claim as the Trust appear to have concluded but was merely asking for the availability of any Insurance Certificate.

The Trust’s Claims Manager, in his affidavit says the first notice to the Trust of the Plaintiff’s claim against the Trust was by letter dated 24th August 1994. But Mr O’Connor’s letter clearly does not purport to or gives notice of the claim within the meaning of S. 54(6) because Mr O’Connor merely enquired about the insurance status of the subject motor vehicle. Mr Buttler in his affidavit however does not make any reference to Mr O’Connor’s letter of 24th May 1993 which his office acknowledged receipt of on 9th September 1993. However, the issue of whether or not the Trust did receive Mr O’Connor’s letter of 24th May 1993 does not become material unless that letter was a letter giving or purporting to give notice of claim to the Trust under S. 54 (6) of the Act. In my view, on the face of that letter, it does not give or purport to give such notice because it merely encloses the Insurance Commissioner’s letter and merely refers to the earlier letter of 25th February 1993 which gave notice of the claim out of time. If Mr O’Connor attached a copy of his letter of 25th February 1993 to this letter, then it could be fairly said that the letter of 25th February 1993 coupled with the extension letter plus the covering letter of 24th May 1993 amounted to notice or sufficient notice under S. 54 (6) of the Act as I have ruled in a similar case, which ruling I just handed down a while ago in W.S. No. 827 of 1994 Stanley Tendi -v- M.V.I.T. [Unpublished National Court judgment No. N 1423 dated 6 May 1996]. But the present case is different in that Mr O’Connor did not attach a copy of his letter of 25th February 1993. Also the situation could have been different if the Trust acknowledged receipt of Mr O’Connor’s letter of 25th February 1993.

It is submitted by Mr O’Connor that it is safe to assume that the Trust received his letter of 25th February 1993 because Mr Buttler’s evidence on the Trust’s record is unsatisfactory as evidenced by his erroneous statement in his affidavit regarding the nature of the letter of 24th August 1991.

However it is was also not safe for Mr O’Connor to assume that the Trust had received his letter of 25th February 1993 because the fact that Mr O’Connor had not received a reply to that letter ought to have caused him concern as to whether the Trust received that letter. On that basis, it is not safe to find nor infer that the Trust did receive that letter. Also in Stanley Tendi -v- M.V.I.T., I have ruled that a letter giving notice of claim to the Trust out of time or outside the period extended by the Commissioner or the Court is invalid or ineffective. So the letter of 25th February 1993 in this case was invalid. An enclosure of a copy of that letter under cover of letter dated 24th May 1993 would have had the effect of giving notice of the claim on that date. The granting of the extension by the Commissioner did not operate retrospectively to validate the invalid notice given on 25th February 1993. As no other letter of notice was given within the period extended by the Commissioner, there was no notice of the claim given to the Trust at all.

Mr O’Connor has made some forceful arguments as to the way this Court should approach matters of statutory construction. I have addressed some of those issues in Stanley Tendi -v- M.V.I.T. which I do not wish to repeat because I intend to publish that judgment. Whilst I agree with him that laws and procedures need to be fairly and liberally construed so as to give effect to the purpose of the legislation in question, I do not think the particular facts of this cause raise issues of statutory construction of the provisions of S. 54 (6).

Whilst I appreciate that Mr O’Connor’s failure to enclose a copy of his letter of 25th February 1993 appears to be a technical blunder on his part, the substantial effect of this blunder was that the Trust was never informed or sufficiently informed of the claimant’s intention to make a claim in accordance with the mandatory provision of S. 54 (6) of the Act. The error was a material error in so far as giving of notice to the Trust is concerned. No action may be instituted and maintained unless proper notice is given to the Trust in accordance with the provisions of S. 54 (6): Rundle -v- M.V.I.T. [1988] PNGLR 20. I repeat what I have just said in Stanley Tendi -v- M.V.I.T. and say further: Lawyers would do well not give notice of claim to the Trust out of time so that complications such as in the present case can be avoided. For these reasons, I would grant the application and dismiss the whole action.

Lawyer for the Plaintiff: YOUNG & WILLIAMS Lawyers

Lawyer for the Defendant: D.L. O’CONNOR Lawyers