Fuanka v Motor Vehicles Insurance (PNG) Trust [1998] PGNC 116; N1825 (4 December 1998)

Unreported National Court Decisions

N1825

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 504 OF 1997
BETWEEN
KOE FUANKA
PLAINTIFF
AND
MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT

Goroka

Sawong J
28 August 1998
4 December 1998

Cases Cited

Rundle v MVIT [1988] PNGLR 20

Counsel

D. Umba, for the Plaintiff

M. Titus, for the Defendant

4 December 1998

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

The plaintiff says she was injured in a motor vehicle accident on 12 August 1996. It is not clear from the plaintiff’s affidavit evidence as to the circumstances of the accident. All she says is that she was injured in a motor vehicle accident. It is alleged that the driver of the vehicle was negligent.

The plaintiff instructed lawyers to act for her in late May 1997. By a letter dated 4th June 1997, her lawyers wrote to the Insurance Commissioner seeking an extension from the Commissioner. However by a letter dated 1 July 1997, the Commissioner refused the application. She was then advised by her lawyers to bring some money as legal fees before the lawyers could make an application to the Court for an extension of time. She was so advised in September 1997 and by mid October 1997 she came with the required amount of legal fees. The present proceedings were then filed in November 1997.

Where the Insurance Commissioner refuses to grant an extension of time, an applicant may then apply to the National Court to get the extension. This issue was settled in Rundle v MVIT [1988] PNGLR 20. That case sets out the principles governing the exercise of discretion to extend time. The plaintiff bears the onus to establish “sufficient cause”. This expression must be interpreted widely, as it deals with justice of the case bearing in mind that each case must be determined on its own facts and merit. This would also involve the consideration of any prejudice that may have been caused to the defendant by the delay.

In the present case the defendant submits that the application should be refused. That submission is made on two basis. First, counsel for the defendant submits that the plaintiff has offered no explanation as to why she did not give notice between the date of the accident and May 1997 when she gave instructions to her lawyer. Mr Umba has made no submission in respect of this aspect.

I accept the submission made by the defendant on this aspect. There is no evidence or information in the plaintiff’s affidavit as to why she did not give any notice or instruct any lawyer between the date of the alleged accident and May 1997. I think part of the answer lies in the fact t hat she says she was hospitalised for about six weeks. But even then she offers no explanation for her failure between November 1996 and May 1997.

The second ground is much more serious. In this ground the defendant submits that the police accident report is questionable because of serious defects in it, thus the defendant is prejudiced. For instance the police accident report was dated 29 May 1996, some three months before the accident. The date of this accident is not stated, but on the front right hand corner, on the first page, the date is stated as 13 September 1996. It is submitted that given these discrepancies which are quite serious, the whole claim is a suspicious one.

Mr Umba concedes that there are discrepancies in the reports, but submits that despite these discrepancies the court should nevertheless grant the extension. He submitted that no weight should be given to these discrepancies at this stage to determine the fate of this application.

I consider that these discrepancies in the report gave rise to a real question as to the genuineness of the claim. I am satisfied that the plaintiff has not discharged her onus in establishing sufficient cause.

In the circumstances the application is refused and I make no order as to costs.

Lawyers for the Plaintiff: Acanufa & Associates

Lawyers for the Respondent: Young & Williams