N1998

PAPUA NEW GUINEA

[National Court of Justice]

WS 362 of 2000

BETWEEN

CATHY ROBERT KOLUM as next friend of
SALOME ROBERT, JAMILA ROBERT and PETER KOLUM
Plaintiff

AND

MOTOR VEHICLES INSURANCE (PNG) TRUST LIMITED
Defendant

Waigani	:	Sevua, J
2000		:	5th July and
27th October

PRACTICE AND PROCEDURE – Notice of intention to make a claim against Motor Vehicles Insurance (PNG) Trust – Motor Vehicle accident – Personal injuries – "Purported notice" given within statutory time limit – Section 54 (6) Motor Vehicles (Third Party Insurance) Act, Ch.295.

WORDS AND PHRASES – "Notice" – Meaning of – Whether notice means and includes all the relevant particulars of accident, motor vehicle, etc, etc. – Whether notice given within the 6 months time limit without such particulars amount to no notice – Section 54 (6) Motor Vehicle (Third Party Insurance) Act, Ch.295.

HELD

1.	The phrase, "claim for damages" referred to in Rundle v. MVIT [1988-89] PNGLR 20 does not have the same meaning as giving notice pursuant to s.54 (6) of the Motor Vehicles (Third Party Insurance) Act, Ch. 295. A "claim for damages" and a "notice of intention to make a claim" are two distinct matters.

2.	"Notice" in its ordinary meaning means writing to and informing the Trust of one’s intention to make a claim against the Trust. It does not mean and does not include all the particulars of the vehicles and/or circumstances of the accident.

3.	It is not desirable to endeavour to formulate by judicial pronouncement a definition of "notice" instead it is desirable to guard against the dangerous ambition of attempting to define "notice" as the attempt to do so may include what the law did not intend to include.

4.	It will be an injustice to claimants who have complied with the law by giving notice within the statutory time limit, to have their claims dismissed for failure to provide sufficient details of an accident in their notices.

5.	The defendant’s application is dismissed, as being misconceived, unmeritorious and an abuse of the Court’s process.

Cases cited:
Rundle v. Motor Vehicle Insurance (PNG) Trust No. 1 [1988-89] PNGLR 20
Laime v. Motor Vehicle Insurance (PNG) Trust [1995] PNGLR 224
Ume v. Motor Vehicle Insurance (PNG) Trust, Unreported, N1684
Nui v. Motor Vehicle Insurance (PNG) Trust, Unnumbered and unreported
Tende v. Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 379

Counsel:
M. Pokia for Applicant/Plaintiff
P. Korowi for Respondent/Defendant

SEVUA, J:	This is an application by the defendant seeking orders that the proceedings be dismissed, and the plaintiff pays the defendant’s costs.

The evidence in support of this application came from the affidavit of Mr Muriso Pokia, counsel for the applicant, sworn on 6th June, 2000. Basically, counsel said in his affidavit that the plaintiff’s lawyer forwarded a letter dated 20th July, 1999 to the defendant’s lawyer "purportedly" giving notice of the plaintiff’s intention to make a claim against the defendant. That letter was received by the defendant on 26th July, 1999. On 20th September, 1999, the defendant forwarded a reply to the plaintiff’s lawyer advising, "your notice does not comply with the requirement under Section 54 of the Act, in that it contains insufficient details of the accident. As such, we (sic) unable to accept the same. Liability is not admitted." The plaintiff’s lawyer did not respond, but proceeded to file the writ of summons in this action.

The respondent has filed an affidavit sworn by Mr Philemon Korowi, counsel for the respondent, sworn on 28th June, 2000. In a letter dated 20th July, 1999, the plaintiff’s lawyer said they acted for Cathy Robert, wife of the deceased Peter Kolum, and daughters, Salome and Jamila Robert. The author of that letter, Mr Dennis Igoleni said at paragraph two, "Pursuant to Section 53 (sic) of the Motor Vehicles (Third Party Insurance) Act, we hereby give notice that it is the intention of Mrs Cathy Robert to make a claim against the Motor Vehicles Insurance (PNG) Trust for compensation." In paragraph three of the letter, Mr Igoleni said, "Mr Robert Kolum died at 10:40pm on 23rd March, 1999 at the Mendi General Hospital after a PMV truck knocked him off a government vehicle which he was travelling in at Kiburu Village, outside Mendi Town on the Mendi to Mt Hagen Highlands Highway." The plaintiff’s lawyer advised the defendant that all supporting documents would be forwarded after they have been received.

Mr Korowi has annexed a copy of his letter dated 22nd February, 2000, (Annexure "B") to the defendant in response to its letter of 25th September, 1999. In that letter, Mr Korowi said, "Section 54(6) of the Motor Vehicles Insurance (Third Party Insurance) Act, Chapter 295, does not strictly require that an injured, or a representative of a deceased, give sufficient details of the accident. As long as a claimant gives notice of the claim to Motor Vehicle Insurance (PNG) Trust, the claimant can later provide details of the accident, injuries suffered and loss of support in the case of dependency claims."

The plaintiff’s lawyer’s letter of 22nd February, 2000 thus provided, among other things, a Police Accident Report No.6/99 dated 24th March, 1999; Post Mortem/Medical Report of Dr Simul Mengeap dated 26th March, 1996, (sic) and, Medical Certificate of Death dated 26th March, 1999. I think the date of the doctor’s report should be 1999 not 1996.

The defendant did not respond to the plaintiff’s lawyer’s letter. Instead, its lawyer proceeded with the filing of this notice of motion with a supporting affidavit.

Mr Pokia has submitted that the letter of 20th July, 1999, was a "purported notice" because it lacked the particulars required by law. The particulars required which were not provided by the plaintiff’s lawyer were: who was the driver and owner of the PMV; who was the driver of the Government vehicle; what were the registration numbers of the PMV and Government vehicle, whether the PMV was insured, and if so, what was the policy number; and the full circumstances of the accident. That is, where the "PMV bumped into the vehicle causing the deceased to be knocked out."

If I understood Mr Pokia’s submission correctly, the essence of the defendant’s argument is that, as the plaintiff has failed to supply all the particulars in her lawyer’s letter of 20th July, 1999, that letter did not constitute "notice" pursuant to s.54(6) of the Act. In other words, the notice was no notice, thus the plaintiff has failed to comply with the law.

Counsel relied on Bredmeyer, J’s judgment in Graham Rundle v. Motor Vehicles Insurance (PNG) Trust No (1) [1988-89] PNGLR 20 at 23, where His Honour said, "clearly when any claim for damages are made against the Trust, it needs to know the driver and the owner of the vehicle concerned and whether the vehicle is insured. The claimant’s knowledge of these details may be non-existent or incomplete and the Trust will need to make its own inquiries…."(my own underlining). I have emphasized the phrase, "claim for damages," because I consider it quite significant as it appears to have contributed to the misconception held by the defendant’s counsel.

It is the Court’s opinion that the defendant’s submission is misconceived. His Honour in that case was specifically referring to a "claim for damages" as opposed to a "notice of intention to make a claim." A claimant who writes to the Trust advising that he intends to make a claim for compensation against the Trust is simply giving notice of his intention. He is not claiming damages, and he has not yet claimed damages. A claim for damages is made by filing a writ of summons and pleading the claim for damages in the statement of claim. A claim for damages is therefore a completely different thing altogether to a notice of a intention to make a claim against the Trust. They are two distinct matters.

It is not correct, and I say, it is a misconception, to say that, once a person gives notice that he intends to make a claim against the Trust, he is already making a claim for damages. Whilst I agree with His Honour’s view, I do not accept the defendant’s submission that His Honour was referring to a notice of intention to make a claim. I am therefore of the view that, Mr Pokia’s submission is misconceived.

The defendant’s counsel also relied on several National Court decisions by Woods, J., Sawong, J and Injia, J. They are Laime v. MVIT [1995] PNGLR 224; Wane Ume v. MVIT, N1684; Paraka Nui v. MVIT; unnumbered and unreported, and Stanley Tende v. MVIT [1996] PNGLR 379. Counsel cited the views expressed by their Honours in two of these cases.

Counsel referred to page 12 of Sawong, J’s judgment in Paraka Nui’s case, where the Court said, "Where a claimant is complying with his obligations to give notice of intention to make a claim to the Trust, then the claimant must provide full and accurate details of the owner, driver, registration number of the vehicle, the date and full circumstances giving rise to the accident, which gives rise to the claim."

Mr Pokia also referred to what Injia, J said at page 383 in Stanley Tende’s case, "In my view, a notice under section 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 nature of the injuries received and medical treatment received, if any and the claimant’s desire and intention to make a claim."

With respect to my brethren, I do not agree with their views although, I consider that what they have adverted to are relevant in a claim against the Trust. In fact, I share the first part of Injia, J’s views, but not the rest of the paragraph quoted. To agree with their views, would mean sanctioning the definition of the word, "notice", which is neither defined in s.54(6) of the Act nor by the Supreme Court in Rundle’s case. I consider that, those views have given a very wide meaning to the word "notice" than intended by the Parliament. In my view, "notice", given its ordinary meaning, means, writing to the Trust and notifying it of one’s intention to make a claim against the Trust. Of course, it is important to provide the date of accident and registration numbers of vehicles involved in an accident. However, to say that a claimant who gives notice within the 6 months limit as required by law, has not given notice because details of vehicles, how the accident occurred, etc, etc, were not included in the notice is quite absurd and ridiculous. It defeats the very purpose that the law intended.

I am aware, from my own experience in private practice that, as long as notice is given within the time limit under s.54 (6) of the Motor Vehicles (Third Party Insurance) Act, details of the motor vehicles, extent of injuries/death, circumstances of how the accident occurred, etc, etc, can be provided to the Trust at a subsequent date. I consider that the significance of giving notice within the 6 months limit is to comply with the law. To extend the meaning of "notice" to include those particulars that counsel has submitted, is quite erroneous in my view. It will result in genuine claims being rejected despite notices having been given within the stipulated time, and that, in my view, is not the purpose of giving notice, nor the intention of the legislature.

I do not think the practice has changed nowadays, and I see no reason why, in the present case, the defendant can justifiably come to this Court to exclude a claimant who has a genuine claim and who has given the appropriate notice within the six months time frame required by law. I do not think it is possible and I certainly do not think it is desirable, to endeavour to formulate by judicial pronouncement, a definition of the word "notice." Instead I desire to guard against the dangerous ambition of attempting to define "notice" so as to include what the law did not intend to include. I am of the view that it would be quite dangerous to adopt the views that have been expressed in the cases, which the defendant’s counsel sought to rely upon. The word "notice" must be given its ordinary meaning and I agree with Injia, J., to that extent.

Section 54 (6) is quite explicit in its term. Nowhere in that provision does it stipulate that notice mean and include all the particulars that the defendant has suggested, should be included in the notice. We are attempting to give meaning to a word which the law has not given, and as I alluded to, this is dangerous, because the end result will be unfair to claimants who have complied with the law by giving notice within the statutory time limit. I consider that it will be an injustice to claimants who have complied with the law by giving the required notice within the statutory time limit, but their claims are dismissed because the Trust says that in giving notice, the claimants have failed to provide sufficient details of accidents in their notices. As a matter of law, these details are not required, but in practice, it is desirable to provide the date of accident and the registration of motor vehicles involved, if available at the time of giving notice. Then all the other relevant details can be supplied later once they come to hand.

I therefore conclude that notice under s.54 (6) of the Motor Vehicles (Third Party Insurance) Act Ch. 295 does not mean or include such particulars as details of driver/owner of a motor vehicle, whether motor vehicle is insured or not, insurance policy number, circumstances in which an accident occurred, etc etc. These matters, although important in a claim, do not constitute notice and they can be supplied to the Trust at a latter stage, after notice has been given. A notice is simply a written advice to the Trust that a claimant intends to make a claim against it and may provide, the date of the accident and the registration of the vehicle(s) concerned, if available at the time notice is given.

The practice really is that most of these particulars become available after an accident, following investigations and inquiries, and experiences have shown that sometimes, the availability of these materials can take many months after a motor vehicle mishap. I am therefore of the view that, notice given within six months of the date of accident without the full particulars of the accident, etc, is good notice, it is not a "purported notice."

I am inclined to accept Mr Korowi’s submission that the defendant’s application is misconceived, unmeritorious and an abuse of the Court’s process. I consider that the application is indeed misconceived, unmeritorious and amounts to an abuse of the process of the Court.

Accordingly, the defendant’s application is dismissed with costs.
_________________________________________________________________

Lawyer for the Plaintiff		:	Paraka Lawyers
Lawyer for the Defendant		:	Young & Williams