Motor Vehicles Insurance (PNG) Trust v Insurance Commissioner [1998] PGNC 33; N1725 (22 May 1998)

Unreported National Court Decisions

N1725

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 350 OF 1997
BETWEEN: MOTOR VEHICLES INSURANCE (PNG) TRUST
PLAINTIFF
AND: INSURANCE COMMISSIONER
DEFENDANT

Waigani

Sevua J
23 April 1998
22 May 1998

PRACTICE – Motor Vehicle accidents – Action against MVIT – Notice - Prescribed period – Failure to claim within statutory time – Extension – Extension by Insurance Commissioner – Sufficient cause – Motor Vehicle (Third Party Insurance) Act Ch 295 s.54 (6).

JUDICIAL REVIEW – Insurance Commissioner’s granting of extension – Failure – Sufficient cause – Principle discussed - Commissioner’s decision subject to review.

The Motor Vehicles (Third Party Insurance) Act Ch 295 s.54(6) provides a statutory time limit within which a notice of intention to make a claim against the Trust is to be given. After the expiry of that time limit, an extension of time may be granted at the discretion of the Insurance Commissioner or the Court upon sufficient cause being shown. The Commissioner considered an application to extend time and granted such application without sufficient cause being shown.

HELD:

(1) The Commissioner is a pubuic authority and his decisions are subject to judicial review.

(2) &#1t is not desirable to lato lay down any rigid definition as to what does or does not constitute “sufficient cause”.

(3);ټ&##160; Sufficient cause may be shown by an applicant by establstablishinishing, ong, one or e or more of the following factors – ignorance or mistake as to his rights to give notice; delay in obtaining contemporaneous medical and/or police reports; difficulties in securing a lawyer; inaccessibility to or unavailability of public and/or private legal services; prolonged admission in hospital, etc.

(4) The applicant (Gorugahe Kei) had not shown sufficient cause to have warranted the extension granted him by the Insurance Commissioner.

(5) ҈& The dece decision sion of the Inse Comoner on 6th June, 199, 1997, is7, is quas quashed.

CASES CITED:

Ridge –v- Balwin [1963] UKHL 2; [1964] AC 40.

Motor Ves Inse (PNG) Trust &#8t –v211;v- Dixon Popo, Unreported, N1048, 28th February, 1992 (Brown, J).

Graeme Rundle –v- Motor Vehicles Insurance PNG Trust [1987] PNGLR 44.

Sophron –v- The Nominal Defendant [1957] HCA 27; (1956-57) 96 CLR 469.

Whitgob –v- The Nominal Defendant (1951) 69 WN (NSW) 1.

Shotts Iron Co. Ltd –v- Fordyce [1930] AC 503.

Harris –v- Metropolitan Water Sewerage & Drainage Board (1940) 57 WN (NSW) 43.

Counsel

Ms M. Thompson for Plaintiff

Ms H. Polume for Defendant

22 May 1998

SEVUA J: This is an application for judicial review pursuant to Order 16 of the National Court Rules in respect of the defendant’s decision made on 6^th May, 1997. Leave was granted on 10^th September, 1997.

The defendant had, on 6^th May, 1997 granted an extension of 28 days to one Gorugahe Kei (the claimant) to give notice of intention to make a claim against the plaintiff.

The defendant’s decision was in respect of a letter dated 20^th June, 1997 from Gorugahe Kei, who claimed to have been injured in a motor vehicle accident which had occurred at about 9 pm on 24^th May, 1993 at Two Mile Hill, along the Sir Hubert Murray Highway. The claimant said as a result of the accident, he received injuries to his left leg, ankle joint, waist and head. He and other injured passengers were taken to Port Moresby General Hospital and he was treated and released while the other passengers were admitted to hospital.

On paragraph 7 of his letter, the claimant said that, “due to financial problems and very very expensive to get a lawyer to assist me lodge a claim had consumed up the time to lodge a claim and I had written to the Insurance Commissioner on 25^th February, 1997 seeking his approval for late claim which he gave his blessing some three months later, letter dated 6^th May, 1997 which I received on the 27^th of May, 1997.” I presume the claimant was trying to explain the delay in making a claim. A copy of the claimant’s letter was received by the plaintiff on 14^th February, 1997.

A police road accident report was compiled on 25^th September, 1993, some four months after the accident. A medical report dated 20^th October, 1995, that is two and a half years later states that the claimant claimed “to have had outpatient treatment at that time for soft injuries to left lumber region and left thigh.”

However, there is no other evidence of any hospital admission notes or discharge summary and no medical report on the alleged date of accident or immediately thereafter.

The granting of the 28 days extension by the defendant almost four years following the accident raises the issue of whether sufficient cause had been shown (my underlying).

Section 54(b) of the Motor Vehicles (Third Party Insurance) Act, Ch 295 provides

“6. ټ No acti action to enforce any claim under this section lies against the Trust unless notice of intention to make a claim is given by the claimant to the Trust within a period o montter tcurrencrrence out of which the claim rose, or witr within shin such period as–

(a) the Commissioner; or

(b) the Court before which action is instituted,

on sufficient cause being shown, allows.”

I have underlined the pertinent phrase to give it emphasis because I am of the view that, that is the basis upon which the Commissioner or the Court can grant an extension of time.

The plaintiff argues that it has been prejudiced by the claimant’s failure for the following reasons:-

(a) & it did did not receive notice of the accident from either the claimant or the driver or owner or from any alleged injured persons or any other persons in 1993, so it has no contemporaneous evidence of the acci

)ټ < ll nit be able to obtain iain independent evidence of the circumstances of the accident from the police, because the accident was not reported to police at the time it is alleged to have occurred;

(c) tiere e noencidfrom the pthe police or the hospital or a doctor showing that the claimant sustained injuries on the alleged dateccidep>

For these reasons, the plaintiff says the Insurance Commissioner erred in granting an extension of time therefore his decision should be quashed.

I rule that the plaintiff has been prejudiced for the reasons advanced, which I accept. In my view, it is incumbment upon a person claiming to have sufficient personal injuries in a motor vehicle accident to ensure that he makes a claim within the required time. If not, he must show good and convincing reasons as to why the Commissioner or the Court should grant him an extension after the required six months has elapsed. Of course, in a situation where the claimant is illiterate and comes from a remote village, inaccessible to public and private legal services, one can understand. However, in the present case, the claimant was a resident of Port Moresby. He had access to both private and public legal services. If he could not afford a private legal practitioner, there was no reason he could not have consulted the Public Solicitor. It is my view that the defendant could not have been satisfied on sufficient cause being shown by the claimant under such circumstances.

Perhaps at this juncture, let me briefly consider whether or not the National Court can review the decision of the Insurance Commissioner in the exercise of his discretion pursuant to s.54(6)(a).

I raised this issue at the outset of the hearing, and Ms Thompson referred me to the unreported decision of Brown, J in Motor Vehicles Insurance (PNG) Trust –v- Dixon Popo, N1048 of 28^th February, 1992, which I have had the benefit of reading.

I agree with the reasoning of Brown, J based on the principle in Ridge –v- Baldwin [1963] UKHL 2; [1964] AC 40 at 74 at 75, per Lord Reid and other cases cited therein. I therefore hold the view that the Insurance Commissioner’s decision is subject to review by the National Court. There are other issues discussed by Brown, J that I do not agree with, for instance, the audi alteram partem rule, in so far as it relates to the plaintiff. I consider his view obiter dicta. However, since the defendant has not raised those issues here, it is not necessary to discuss them.

For our purpose, I consider that what is pertinent and needs to be reiterated here is the phrase, “on sufficient cause being shown”, in s.54(6). Kapi, DCJ discussed this in Graeme Rundle –v- Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44 at 48 & 49. His Honour cited the decision of the High Court of Australia in Sophron –v- The Nominal Defendant [1957] HCA 27; (1956-57) 96 CLR 469.

Clearly, the onus is upon a claimant to establish sufficient cause for not giving the required notice within the six months period. However, I think it is undesirable to lay down any rigid definitions as to what does or does not constitute sufficient cause. I consider that a case must be decided on its own facts. It would be undesirable, in my view, to regulate a definition which could be applied as a blanket cover in all cases.

Prothonotary Walker in Whitgob –v- The Nominal Defendant (1951) 69 WN (NSW) 1 was of the view that the words “sufficient cause” should not be rigidly defined. In that case, the Prothonotary (Chief Clerk or Registrar) said at page 2 that the “cause shown” must be substantial and not trivial. He used the word “substantial” as equivalent to “sufficient”.

The Lord Chancellor, Lord Sankey, in Shotts Iron Co. Ltd –v- Fordyce [1930] AC 503 at 509 said, “I do not think it is possible- certainly I do not think it is desirable – to endeavour to formulate any rule for guidance in future cases, which must depend mainly on their own facts, and I desire to guard against the dangerous ambition of wishing to regulate and to foresee everything.”

In Harris –v- Metropolitan Water Sewerage & Drainage Board (1940) 57 WN (NSW) 42 at 43, Bavin, J, in regard to similar words appearing in s.63(3) of the Workers Compensation Act 1926-1938 said,

“it is not enough for an applicant merely to prove that his failure to give notice was due to a mistake as to his rights. I am equally of the opinion that the fact that an applicant was ignorant of his rights does not in itself disqualify him from claiming that it is reasonable that the prescribed period should be extended. If he made a mistake as to his rights, the Court must judge whether, under all the circumstances of the case as they appear from the evidence before it, this mistake is one that furnishes sufficient ground for extending the time, or makes it reasonable to do so. If it appears that he was ignorant of his rights, this again is not condusive, one way or the other. The whole of the circumstances, including of course the fact of his ignorance, must be considered.”

From these authorities, I propose to formulate what I perceive and consider to be a reasonable proposition in law, in so far as it relates to the phrase, “sufficient cause, being shown” in s.54(6).

Without being restrictive or exhaustive, sufficient cause required to be shown by an applicant or claimant, in my view, would include such considerations as: ignorance or mistake as to his rights to give notice to make a claim, delay in obtaining contemporaneous medical and police reports, difficulties in engaging a legal advisor, inaccessibility to, or unavailability of public and/or private legal services, prolonged admission in hospital, etc, and the list goes on.

In my view, those factors and many more that are not listed here, are considerations that the Insurance Commissioner or the Court should take into account when deciding whether or not to exercise their discretion to allow an extension to a claimant to make a claim outside the six months statutory limit.

The present case is one which the applicant had not shown sufficient cause to warrant the extension granted to him. It follows therefore that I will order into this Court and quash the decision of the Insurance Commissioner made on 6^th May, 1997. Costs will follow the event.

Lawyer for Plaintiff: Young & Williams

Lawyer for Defendant: Acting Solicitor General