N1423

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO: 827 OF 1994 (H)

BETWEEN:

STANLEY TENDI
- Plaintiff -

AND:

MOTOR VEHICLES INSURANCE (PNG) TRUST
- Defendant -

MOUNT HAGEN: INJIA, J.
1996: 12TH APRIL, 6TH MAY

Practice and Procedure - Notice of Intended action - Personal injuries - Motor Vehicles Accident - Notice to Motor Vehicles Insurance (PNG) Trust - Motor Vehicles (Third Party Insurance) Act Ch. 295, S. 54(6).

Where the Defendant made application to dismiss the Plaintiff’s claim for want of notice to the Motor Vehicles Insurance (PNG) Trust under S. 54(6) of the Motor Vehicles (Third party Insurance) Act Ch. 295 in circumstances where a purported letter of notice to the Trust by the Plaintiff’s lawyer which was outside the six months notice period coupled with letter granting extension of time by the Insurance Commissioner was forwarded to the Trust within the extended period:

(1)	In the absence of a definition of "notice" under S. 54(6) of the Motor Vehicles (Third Party Insurance Act Ch. 295, its ordinary meaning should apply; which is to inform or make the Trust aware of the Claimant’s intention to make a claim against it. The notice which may be in writing or oral, depending on the background circumstances of the Claimant, should set out sufficient particulars of the accident, the injuries sustained by the claimant and his desire or intention to make a claim.

(2)	In construing the word "notice" under S. 54(6) of the Motor Vehicles (Third Party Insurance Act Ch. 295, the literal, strict and legalistic approach to construction of words in this statute should be avoided and the purposive approach used.

(3)	A letter purporting to give notice of claim to the Trust outside the six months period or outside the period extended by the Insurance Commissioner or the Court is, in so far as it purports to give notice of the claim, invalid.

(4)	However, a copy of a letter purporting to give notice outside the six months time limit, which is annexed to the Commissioner’s letter giving extension of time, both of which are forwarded to the Trust within the extended period is sufficient notice under S. 54(6) of the Motor Vehicles (Third Party Insurance) Act Ch. 295.

Cases cited:

PLAR No. 1 of 1980 [1980] PNGLR 326
SCR No. 6 of 1984 [1985] PNGLR 31
Rundle -v- M.V.I.T. [1988] PNGLR 20
Daguma -v- M.V.I.T. N 955 [1991]
Dick -v- M.V.I.T. [1993] PNGLR 443
Laime -v- M.V.I.T. N 1352 [1995]

P. KOPUNYE for the Plaintiff
A. KANDAKASI for the Defendant

6TH MAY 1996

INJIA, J. The Defendant’s (Trust) Counsel seeks an order dismissing the Plaintiff’s claim for want of notice to the Trust under S. 54(6) of the Motor Vehicles (Third Party Insurance) Act Ch. 295 (the "Act").

It is not disputed that on 10th April 1992 the Plaintiff’s lawyer wrote to the Insurance Commissioner seeking extension of time to give notice of claim to the Trust in respect of personal injuries sustained by his client on 24th August 1991. A copy of the relevant medical report and Police Accident Report were attached to the letter. A copy of the letter was then forwarded to the Trust under cover of letter dated 10th April 1992 which in part reads "Subject only to the grant of extension of time by the Insurance Commissioner, we would appreciate if you could advise that liability is not in issue". This letter contained all the relevant particulars of the accident including the injuries sustained by the Plaintiff. On 24th April 1992, the Commissioner granted the extension sought and gave the Plaintiff 28 days to give notice of claim to the Trust. On 12 May 1992, the Trust wrote to the Plaintiff’s lawyer refusing to comment on his letter of 10 April 1992. Before that however, on 30 April 1992, the Plaintiff’s lawyer wrote to the Trust purporting to give notice of the claim following approval granted by the Commissioner. These two letters appear to have crossed mail. As it is the purport of the Plaintiff’s lawyer’s letter of 30th April 1992 which is subject of dispute in this application, I set out the pertinent parts of the letter in full:

"We refer to our letter of 10th April 1992, copy of which we now enclose together with a copy of the letter from the Insurance Commissioner dated 20th April 1992 granting our client the extension of time within which to lodge our client’s notice of claim.

Please advise that liability is not issue."

Counsel for the Trust makes two submissions. First, by virtue of the National Court decisions of Woods, J. in Daguma -v- M.V.I.T., N 955 [1991]; Dick -v- M.V.I.T. [1993] PNGLR 443 and Laime -v- M.V.I.T., N 1352 [1995], the Plaintiff’s letters to the Trust of 10th April 1992 were invalid and the Trust was under no legal obligation to consider those letters. Secondly, he submits the letter of 30th April 1992, albeit within the period extended by the Commissioner, did not give or purport to "give" notice of the claim to the Trust as required by S. 54(6) of the Act which says, in part, ".....notice to make a claim is given by the claimant to the Trust.....".

Counsel for the Plaintiff submits that his letter of 10th April 1995, was a notice in limbo, "a catch 22 letter" which was subject to and operative upon the granting of an extension by the Commissioner and it became operative when the Commissioner granted the extension. In response, Counsel for the Trust submits that the granting of approval does not operate retrospectively to validate an invalid notice of claim given to the Trust out of time: Laime -v- M.V.I.T., N 1352 [1995].

Counsel for the Plaintiff has strongly argued that the decision of Woods, J. in the three cases referred to above should not be slavishly followed partly because they are based on a mis-understanding of the thrust of the Supreme Court decision in Rundle -v- M.V.I.T., [1988] PNGLR 20 which he says is based on a different set of facts. He submits each case should be decided on its own facts.

In relation to the first submission of the Trust’s Counsel, the Supreme Court in Rundles’s case, Amet, J. (as he then was) with whom Kidu, C.J. agreed held that the requirement to give notice of intention to make a claim in S. 54(6) was in mandatory terms and that it was a condition precedent to the making of any claim against the Trust (p. 28 - 29).

There are two requirements under S. 54(6). First, the claimant must give notice of claim to the Trust and second, such notice must be given within 6 months after the occurrence of which the claim arose or within such period as allowed by the Commission or the Court. In relation to the first of these two requirements, the word "notice" is not defined by the Act. There is also no pro-forma definition of a "notice" prescribed by the Act. At the hearing I asked Counsel for the Trust what the statutory definition of "notice" was and whether oral notice was sufficient under the Act. I put to him the hypothetical case of an old illiterate villager who had just sustained an injury in a motor vehicle accident. He turns up at the Trust’s office, within the six months period, then tells the officers of the Trust that he wants to make a claim for compensation. He gives all the necessary details of the accident, as best as he can, and goes away. Would that be sufficient notice under S. 54(6)?

Counsel for the Trust responded by saying that "notice" is not defined in the Act but it must refer to written or formal notice from the claimant himself or his lawyer to the corporate Trust.

The above hypothetical case demonstrates the practical difficulties associated with a strict, technical, formalistic and legalistic approach to defining the word "notice". It also shows the wider problem associated with interpreting our modern laws and institution which are intended for universal application to all citizens of our country in all its diversity in ethnicity and cultural and educational background. The bulk of our people are still illiterate and under the influence of traditional customs and values. They are ignorant of the strict and formalistic requirements of our modern laws and the rules of practice and procedures which they entail and the institutions which they govern. In interpreting our laws, we must not forget the ordinary people. Laws must be liberally and fairly construed so as to achieve their intended purpose. Strict and legalistic approach to construction of words in a statute are a thing of the past: PLAR No. 1 of 1980 [1980] PNGLR 326, SCR No. 6 of 1984 [1985] PNGLR 31.

In my view, a notice under S. 54(6) should be accorded its ordinary meaning. It means to inform or to make the Trust aware of the claimant’s intention to make a claim against it. The form the notice should take may vary depending on the circumstances which include the claimant’s level of sophistication, geographical location and whether he is represented by a lawyer or a friend or relative. It may be made orally or in writing. Whatever form the notice takes, it should sufficiently set out the relevant particulars of the motor vehicle accident, the nature of the injuries received and medical treatment received, if any, and the claimant’s desire or intention to make a claim.

In relation to the second requirement that notice of the claim must be given within the six months or within such extended period, I do not think there is room to engage in any judicial construction exercise. Within six months or such extended period speaks for itself. If a claimant or his lawyer or agent is out of time in giving notice within the 6 months or the extended period, he cannot purport to give notice to the Trust outside of those time limits. If such notice is given, then the Trust is under no legal obligation to act on those letters. I would agree with the reasoning of Woods, J. in the three cases cited by Counsel for the Trust. That which is against clear legal statutory requirement cannot be validated by a Court under the disguise of statutory construction. Lawyers should cease the practice of giving "catch - 22" letters to the Trust in the hope of securing an inadvertent admission of liability and settlement of the claim "illegally".

Having said that, I now return to the second main submission of the Counsel for the Trust. In my view, the determinative issue before me now is whether Mr Kopunye’s letter of 30th April 1994 amounted to a notice under S. 54(6). Mr Kopunye’s letter of 30th April 1992 clearly purports to give notice of the claim to the Trust. It attaches a copy of his letter of 10th April 1992 which contains all the relevant particulars of the accident, the injuries sustained by the Plaintiff, the relevant medical and police accident reports and his client’s intention to make a claim against the Trust. Whilst it is true that the letter of 30th April 1992 and the letter of 10th April 1992 do not contain the magical words "give notice of claim", or words to that effect, the purpose and message in these two letters goes without saying. Whilst the letter of 10th April 1992 purporting to give notice of the claim to the Trust was ineffective in terms of giving notice on that date, the attaching of a copy of that letter to the letter of 30th April 1992 made that letter a part of the letter of 30th April 1992 and became effective for that purpose. The combined effect of these two letters was that they informed the Trust of all the relevant particulars of the motor vehicle accident and the injuries sustained by the Claimant and after so doing, the Claimant revived his intention to make a claim against the Trust on the occasion of the Commissioner’s extension. This letter of 30th April 1992 was within the time extended by the Commissioner. To say that the letter of 10th April 1992 was invalid in the first place by operation of law and remained so for all purposes is far too legalistic an approach which I am not prepared to accept.

For these reasons, I dismiss the application with costs in favour of the Plaintiff.

************************************************

Lawyer for the Plaintiff: KOPUNYE Lawyers
Lawyer for the Defendant: YOUNG & WILLIAMS