Jowana v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 157; N1681 (5 December 1997)

Unreported National Court Decisions

N1681

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O. S. NO. 363 OF 1997
GIVE JOWANA
APPLICANT
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT

Goroka

Sawong J
20 November 1997
5 December 1997

PRACTICE AND PROCEDURE - Notice of Intention to make a claim to Motor Vehicles Insurance (PNG) Trust, - Application for extension of time - “sufficient cause” - Within discretion of Court - Motor Vehicles (Third Party Insurance Act Ch. 295)

Facts

The plaintiff was allegedly injured in a motor vehicle accident on 15 November 1994 along Agrukave road, Henganofi in the Eastern Highlands Province. At that time he was travelling as a passenger in a vehicle bearing registration no. P348Q. The accident occurred when the driver of the said vehicle lost control and the vehicle overturned. He was hospitalised following the accident. He is a simple man with no formal education. He instructed his lawyers in June 1997. On 26 June 1997, the applicant’s lawyers wrote to the Insurance Commissioner seeking his approval to give notice of an intention to make a claim. The Insurance Commissioner refused his request on 4 August 1997. The plaintiff applied to the National Court for an extension of time to give notice.

Held

1. ҈& T60;prie principleciples governing the exercise of discretion to extend time are well settled and are set out in Rundle v MVIT [1988] PNGLR 20.

2. ҈ &##160;burdeonrdeon the the appliapplicant cant to establish “sufficient cause”. This expressions should be interpreted liberally idely

Counsel

B. Tabai, for the plainplaintiff

V. Mirupasi, for the defe defendant.

5 December 1997

SAWONG J: This is an application by the plaintiff, made pursuant to S 54 (6) of the Motor Vehicle (Third Party Insurance) Act Ch. 295, for an order extending the time in which to give notice of intention to make a claim for damages for personal injuries against the Motor Vehicles Insurance (PNG) Trust.

The plaintiff was travelling as a passenger in a PMV vehicle, registration no. P348Q, which had an accident. The said vehicle overturned and the plaintiff together with others received injuries. The accident occurred on 15 November 1994. The same day he received some medical treatment at the Henganofi Health Centre. The following day he was referred and was admitted into the Goroka Base Hospital and was eventually discharged from the hospital in January 1995. It is alleged that the PMV driver was negligent.

The plaintiff says he is an unsophisticated villager who has had no formal education and does not know of his right to make a claim for compensation. He was told of his right to make such a claim only in May this year.

The plaintiff instructed his lawyers towards the end of June 1997. On 26 June 1997, the lawyers wrote to the Insurance Commissioner seeking an extension of time in which to give notice of intention to make a claim pursuant to S 54 (6)(a) of Motor Vehicles (Third Party Insurance) Act. The Insurance Commissioner refused to extend time in a letter dated 4 August 1997. No reason (s) were given by the Commissioner for the refusal.

It is now trite that where the Insurance Commissioner has refused to grant an extension of time, an applicant may then apply to the National Court to get the extension. This issue was decided in Rundle v MVIT [1988] PNGLR which sets out the principles governing the exercise of discretion to extend time. The plaintiff bears the onus to show or establish “sufficient cause”. In my view this expression must be interpreted liberally or widely.

In Ivia v MVIT [1995] PNGLR, 183, Kapi DCJ at 185 said,

“The onus is on the plaintiff to establish “sufficient cause”. This expression is to be widely interpreted. It deals with the justice of the case within the context of each case. This includes consideration of any prejudice that may have been caused to the defendant by the delay.”

I would add that the court in exercising its discretion, must act on the facts and circumstances of the case before it. In other words, each application must be decided upon its own merits, facts and circumstances. The defendant objects to any extension being granted. Mr Mirupasi for the defendant relied on the affidavit of Mr Doko, the claims manager for the defendant.

Essentially, it was submitted that there has been a long delay, in that a period of nearly three years has lapsed since the accident occurred and that plaintiff has not shown or explained any reason why he didn’t make his claim earlier. Furthermore, there is evidence that other people who received injuries

in that same accident and who come from the same village as the plaintiff have made claims to the Trust within the prescribed time and their claims have been considered by the defendant. Mr Mirupasi submitted that in these circumstance, the plaintiff has not established sufficient cause and has not discharged the onus upon him. He submits that the period of two years eleven months is so long that it will prejudice the defendant in defending the matter.

I do not accept the submission advanced on behalf of the defendant. The defendant, through its claims manager admits that it has received and considered claims from the other persons who were also injured in the same accident. I would infer that it would have received and have in its custody from those claimants the police accident report and any other reports including its own investigations into the matter in its file. In the present case the plaintiff has provided a police accident report, which contains the circumstance etc, of the accident.

In these circumstances, I am not satisfied that the defendant would be prejudiced.

Although the plaintiff has not explained in any detail why he did not make his claim when others from his own village did, I do not consider that, that alone should be push against him.

I consider that upon balancing the competing interests of both sides, the facts, circumstances and justice of the case would warrant to exercise of the court’s discretion in favour of the applicant.

In all the circumstances, I have reached the conclusion that sufficient causes has been shown. Therefore, I would exercise my discretion to extend time in which to give notice to the defendant.

The plaintiff is to give to the defendant his notice of intention to make a claim within 14 days from today.

Having heard counsel on the question of costs, I order that costs be in the cause.

Lawyers for the plaintiff: Pryke & Co.

Lawyers for the defendant: Nii & Mirupas