Dimo, by her next friend Bono v Motor Vehicles Insurance (PNG) Trust; Bono v Motor Vehicles Insurance (PNG) Trust [1999] PGNC 42; N1894 (4 June 1999)

Unreported National Court Decisions

N1894

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 372 OF 1998

OS NO. 373 OF 1998
BETWEEN: WAI DIMO BY HER NEXT OF FRIEND DIMO BONO
PLAINTIFF
AND: MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT
AND: IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 54(6) (B) OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT CH. 295
BETWEEN: DIMO BONO
PLAINTIFF
AND: MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT
AND: IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 54 (6) (B) OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT CH. 295

Goroka

Kirriwom J
21 May 1999
4 June 1999

Counsel

Mr. D. Umba for the Plaintiffs/Applicants

No Appearance for the Defendant

4 June 1999

KIRRIWOM J: These are two related cases where father and daughter were injured in a motor vehicle accident on 30th May 1997 between Kundiawa and Gumine when the vehicle they were travelling in capsized. By law they were required to give notice of their intention to claim against the Trust within six months of the date of accident which is the 30th of November 1997. They did not do so until March 1998, about four months after the expiry date, that they sought legal advice and assistance to pursue these claims. On the 1st of April 1998 Acanufa Lawyers wrote to the Insurance Commissioner seeking an extension of time but the Commissioner by a letter dated May 1 1998 refused to grant that extension.

The reason for the delay in giving notice within the six months statutory period following the accident was due to the on-going election-related tribal fights in the area which the applicant Dimo Bono claims confined them in their own villages until March 1998 when he was able to do so. That hen he saw Acanufa Lafa Lawyers in Goroka to pursue their claims.

Following the Commissioner’s refusal to grant extension, the applicants filed these proceedings on 15th July 1998 pursuant to section 54(6) of the Motor Vehicles (Third Party) Insurance Act. There appears to have been dialogue between the applicants’ lawyers and the defendants’ lawyers since the institution of these proceedings and the defendant had given notice of intention to defend or oppose this application. After several mentions of these two matters since 7th August 1998 they finally came before me on 21/05/99. This was the day that the defendant’s lawyer had requested for the matter to be set down for hearing when one of the lawyers from the defendant’s firm of lawyers was expected to be in Goroka. On the return date the defendant’s lawyer was not here and the Court proceeded to hear this application ex parte.

In both these applications the applicants rely on the Affidavit of Dimo Bono sworn on the 15th of July 1998 to which he annexed various documents including a copy of police accident report and a copy each of medical report compiled by a health worker at a remote health centre that admitted and treated the applicants following the accident.

Whilst I am not happy with the manner and enthusiasm or vigour with which the applicants neglected to pursue their claims, I am satisfied that there was an accident involving a motor vehicle where these applicants were travelling in and injuries were sustained. The law unhe Motor Vehiclehicle (Third Party) Insurance Act is in place to compensate such victims provided the claim is proved in accordance with the Act. There is an affidavit filed on behalf of the Dant deposed to by one RoberRobert Doko in which he challenges the veracity of the medical report in paragraph 5 of his affidavit. This paragraph appears to have been plucked out of a standard clause because it pleads the absence of contemporaneous documents such as the hospital admission records or discharge summary from the date of the accident as prejudicing the defendant from properly defending this action. In my view it is quite unrealistic to expect such detailed records from a rural sub-health centre. And I think an injustice can easily be occasioned if a claimant is shut-out from even proving his or her claim on mere technicality of not having produced enough documents as one would ordinarily expect from an urban clinic or hospital. This affidavit material is not properly in evidence before me for this application for the simple reason that the hearing has proceeded ex parte.

I have noted the reasons for delay given by the applicants and I therefore order that the time period for the claimants to give notice of their intention to claim against the Trust is hereby extended to the 18th of June 1999. Costs in the cause.

Lawyers for the Plaintiffs/Applicants: Acanufa & Associates

Lawyers for the Defendant: Young & Williams