N2783

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 932 OF 2004

WAIM KOIME
ON BEHALF OF HERSELF AND TWO OTHERS

V

MOTOR VEHICLES INSURANCE LTD

MT HAGEN: CANNINGS J
26 NOVEMBER, 21 DECEMBER 2004

RULING ON MOTION

Practice and procedure – application to dismiss proceedings on ground that they are time-barred – motor vehicle accident – death caused by use of motor vehicle insured under Motor Vehicles (Third Party Insurance) Act – negligence – dependency claim for damages for death arising from motor vehicle accident – Insurance Commissioner allowed extension of time to give notice of intention to make claim against Motor Vehicles Insurance Ltd – parties negotiating before and after expiry of three-year period after date of death – writ of summons and statement of claim filed more than three years after date of death – identification of cause of action – whether the proceedings subject to the Motor Vehicles (Third Party Insurance) Act, Section 54(6) – whether source of limitations period is Frauds and Limitations Act, Section 16(1) or Wrongs (Miscellaneous Provisions) Act, Section 31 – effect of Commissioner’s approval – whether extension of time extended time limit for commencement of court proceedings – whether proceedings time-barred – whether Court has discretion to allow proceedings to continue – whether proceedings ought to be dismissed. 

Cases cited:
Dan Salmon Kakaraya v Ombudsman Commission (2003) N2478
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364
Roselyn Cecil Kusa v MVIT (2003) N2328
Sakaire Ambo v MVIT (1999) N2162
Sakaire Ambo v MVIT (2002) SC681
Sanage Kuri v MVIL (2004) N2759
Susanna Lipai v MVIT [1996] PNGLR 363

Counsel:
M Konge for the plaintiff
M Titus for the defendant

CANNINGS J: 

INTRODUCTION

This is a ruling on a motion by the defendant to dismiss proceedings commenced by the plaintiff on the ground that they are time-barred. The substantive proceedings are a claim for damages arising from the death in a motor vehicle accident of a woman on whom the plaintiff claims to have been dependent. The plaintiff commenced the proceedings on behalf of herself and two children.

The relationship between the plaintiff and the deceased is not clear but it has not been necessary to determine that issue for the purposes of making this ruling.

BACKGROUND

Motor vehicle accident

The plaintiff, Waim Koime, alleges that the deceased, Peanz Waim, was killed in a motor vehicle accident on the Okuk Highway in the Western Highlands Province on 4 March 1999. The plaintiff says that Peanz Waim was walking along the highway when she was run down by a public motor vehicle (PMV) driven negligently by Jeru Kumi. The plaintiff says that the PMV, owned by Gibson Siune, was insured by the defendant, and the defendant is therefore liable to pay damages to the deceased’s dependants.

Notice of claim

4 September 1999 was the date six months after the accident. That was the date by which notice of intention to make a claim against the defendant should have been given. Section 54(6) of the Motor Vehicles (Third Party Insurance) Act Chapter No 295 imposes that requirement, unless the Insurance Commissioner or the Court that deals with the claim allows a further period.

It appears that the plaintiff did nothing tangible about pursuing the matter until September 2000. On 13 and 19 September 2000 Kopunye Lawyers of Mt Hagen, acting on the plaintiff’s behalf, wrote to the Insurance Commissioner seeking an extension of time to give notice of intention to make a claim.

Almost a year later, on 21 August 2001, the Acting Commissioner, Ludwig Repo, granted an extension.

In a letter to the plaintiff, which was copied to the defendant, the Acting Commissioner stated:

Pursuant to Section 54(6)(a) of the Motor Vehicles (Third Party Insurance) Act Chapter 295, approval is granted for you to proceed with a notice to Motor Vehicles Insurance Ltd within 28 days from the date of this letter.

In a letter dated 23 August 2001 Kopunye Lawyers gave notice in writing of the plaintiff’s intention to make a claim. 

Further correspondence

There was no response from the defendant, so Kopunye Lawyers wrote follow-up letters on 15 February and 15 May 2002.

4 March 2002 was the third anniversary of Peanz Waim’s death. By that date the plaintiff had not filed any court proceedings.

On 14 May 2002 the defendant responded to the letter of 23 August 2001, apologising for its tardiness. It did not admit liability but was prepared to consider the details of the claim and asked Kopunye Lawyers to provide the plaintiff’s quantum submission and have a dependency questionnaire completed by the deceased’s next of kin.

On 28 August 2002 Kopunye Lawyers forwarded the completed questionnaire to the defendant. 

There was no response from the defendant so on 29 October 2002 Kopunye Lawyers wrote to the defendant, seeking confirmation that the defendant was satisfied with the genuineness of the claim so that they could forward a quantum submission.

There was no response from the defendant so on 22 January 2003 Kopunye Lawyers wrote to the defendant, making a submission for general damages of K9,259.83, plus costs of K1,000.00.
There was no response from the defendant so on 27 March 2003 Kopunye Lawyers wrote a follow-up letter to the defendant. 

On 4 April 2003 the defendant replied to Kopunye Lawyers’ various letters, apologised again for its tardiness, and stated:

We have reviewed our file and advise that the matter has become statute barred, therefore our file is now closed.

On 25 April 2003 Kopunye Lawyers wrote to the defendant, inviting it to reconsider its position. 

The defendant did not change its position.

Writ and statement of claim

On 14 July 2004 Kopunye Lawyers filed a writ of summons. The statement of claim attached to the writ pleads three alternative causes of action:

•	negligence of the PMV driver that resulted in the death of the deceased;

•	negligence of the defendant’s servants, agents or officers by not responding to correspondence, inviting submissions on quantum and not taking issue with the claim being statute barred until after the time period now relied on expired; and

•	breach of contract by the defendant in that the defendant invited the plaintiff to quantify damages and the plaintiff acted on the defendant’s invitation and made a submission, so the defendant is estopped by its conduct from relying on statutory time limitation periods.

The plaintiff seeks general damages, special and out of pocket expenses, damages for frustration, distress and anxiety, interest and costs.

(Paragraph 7 of the statement of claim incorrectly stated the date of the accident as 4 March 1998. This is an obvious error. The Court orders, of its own motion, pursuant to Order 8, Rule 50(1) of the National Court Rules, that paragraph 7 is amended by deleting the reference to "1998" and substituting it with "1999".)

On 30 July 2004 the writ was served on the defendant.

Events since service of writ

On 9 August 2004 the defendant filed a notice of intention to defend. 

On 28 October 2004 another notice of intention to defend was filed, this time by Mirupasi Lawyers. 

On 9 November 2004 Mirupasi Lawyers filed a notice of motion, seeking an order that the proceedings be dismissed for being statute barred or in the alternative an order that the defendant be granted leave to file a defence out of time. That is the motion now before the Court for determination. 

On 26 November 2004 the motion was argued in Mt Hagen. I heard submissions from Mr Titus, for the defendant, and Ms Konge, for the plaintiff.

Decision on motion

On 21 December 2004 I announced the decision. I gave brief reasons and said I would publish full reasons later, which I do now.

Status of plaintiff and children

When I announced the decision I was under the impression that the plaintiff was a woman bringing the proceedings in relation to the death of her husband. I thought she was the widow of the deceased. I was wrong in describing the plaintiff and the deceased in those terms. The deceased, Peanz Waim, was a woman. The plaintiff, Waim Koime, is also a woman. 

The plaintiff is described as an adult female, married with dependants, in paragraph 1 of the statement of claim. In paragraphs 11 and 12(d), the relationship of the plaintiff to the deceased is stated as "widow". The ordinary meaning of the word widow is ‘a woman whose husband has died’. That is why I thought that the deceased was the plaintiff’s husband. Further confusion was created by paragraphs 7(d) and 12(b) of the statement of claim, which stated "the deceased died from injuries he sustained" and "the deceased would do subsistence farming to [support] himself". I inferred from that that the deceased was a man. Then the last page of the statement of claim referred to the plaintiff as Peanz Waim, when, in fact, Peanz Waim was the deceased. 

As for the children, Jacob Toby and Yepora Waim, they are described in paragraph 4 of the statement of claim as the plaintiff’s sons, but in paragraph 11 as the deceased’s sons.

Having identified those errors and elements of confusion in the statement of claim, I clarify that:

•	the plaintiff, Waim Koime, is a woman;

•	the deceased, Peanz Waim, was a woman;

•	the plaintiff claims that Peanz Waim had three dependants: the plaintiff herself and two children, Jacob Toby and Yepora Waim; and 

•	it is not known whether the children are the plaintiff’s or the deceased’s, however it is not necessary to determine that issue for the purposes of determining the motion before the Court.

RELEVANT LAW

Three sets of statutory provisions need to be considered in this case. 
 
Motor Vehicles (Third Party Insurance) Act Chapter No 295

A person who wishes to make a claim for damages for death or bodily injury arising from a motor vehicle accident must make the claim under Section 54 (claims for damages) of the Motor Vehicles (Third Party Insurance) Act. This law requires, generally, that the claim be brought against Motor Vehicles Insurance Ltd (the defendant, MVIL) and not against the negligent driver or owner of a motor vehicle. Before filing court proceedings the claimant must give notice of the claim to MVIL under Section 54(6).

Section 54(6) states:

No action to enforce any claim under this section lies against the successor company [ie the defendant, MVIL] unless notice of intention to make a claim is given by the claimant to the successor company within a period of six months after the occurrence out of which the claim arose, or within such further period as—

(a)	the Commissioner; [ie the Insurance Commissioner appointed under the Insurance Act 1995] or
(b)	the court before which the action is instituted,

on sufficient cause being shown, allows.

Frauds and Limitations Act 1988

Part III (limitation periods for actions in contract, tort etc) contains Sections 16 to 20.

Section 16(1) is the key provision. It states:

Subject to Sections 17 and 18, [which are not relevant to the present case] an action—

(a)	that is founded on simple contract or on tort; or
(b)	to enforce a recognisance; or
(c)	to enforce an award, where the submission is not by an instrument under seal; or
(d)	to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

Wrongs (Miscellaneous Provisions) Act Chapter No 297

The allegation that a person has died because of another person’s negligence is accommodated by Part IV (wrongful act or neglect causing death) of the Wrongs (Miscellaneous Provisions) Act. It contains Sections 24 to 33.

Section 24 is an interpretation provision. It defines who is regarded as a "child" and "parent". It clarifies what relationships create a right to make a dependency claim arising from someone’s death.

Section 25 provides that a person who is negligent continues to be liable in an action for damages notwithstanding the death of the person injured by their negligence. 

Section 25 states:

Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and notwithstanding that the death has been caused under such circumstances as amount in law to an offence.

Sections 26 and 27 provide the basis for the plaintiff commencing this action against the defendant. She is claiming that Peanz Waim’s death was caused by the neglect of the PMV driver, Jeru Kumi. If Peanz Waim had not died she would have been entitled to sue the defendant and recover damages. The plaintiff is apparently claiming to be the sister or aunt of the deceased. It appears that no action under Sections 25 and 26 was brought within six months after the date of death by Peanz Waim’s executor or administrator. So the plaintiff is relying on Section 27 to bring the action. 

Section 26 states:

(1)	An action referred to in Section 25 shall be for the benefit of the wife, husband, parent and child of the deceased person, and a person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the person deceased.

(2)	In the case of the death of a native within the meaning of the Interpretation Act 1975, an action referred to in Subsection (1) may be for the benefit of the persons who by custom were dependent on the deceased immediately before his death, in addition to the persons specified in that subsection.

Section 27 states:

(1)	Where in any case to which this Part applies there is no executor or administrator of the person deceased, or where no action referred to in this Part has, within six months after the death of the deceased person, been brought by his executor or administrator, the action may be brought by all or any of the persons for whose benefit the action would have been if it had been brought by the executor or administrator.

(2)	An action brought under Subsection (1) shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly as may be as if it were brought by the executor or administrator.

Sections 28, 29 and 30 deal with assessment of damages and related matters.

Section 32 obliges a plaintiff to deliver full particulars of the case to the defendant.

Section 33 deals with payments into court.

None of the above provisions (Sections 24 to 30 and 32 and 33) give rise to any issues that require determination in the present case. However, the remaining provision, Section 31, does. 

Section 31 imposes two requirements on actions brought under Part IV. It states:

Only one action under this Part lies for and in respect of the same subject matter of complaint, and every such action must be commenced within three years after the death of the deceased person.

As far as the Court is aware only one negligence action has been brought concerning the death of Peanz Waim. So the first limb of Section 31 is satisfied. But the second limb is in issue. The defendant claims that it has not been satisfied, therefore the proceedings are time-barred and should be dismissed. 

To paraphrase the second limb of Section 31, it states:

[Every action, ie court case, which is commenced under Part IV of the Wrongs (Miscellaneous Provisions) Act] must be commenced within three years after the death of the deceased person.

Section 37(6) is also relevant. It is in Part VIII of the Act (tort-feasors). It states:

In a case referred to in Section 54 of the Motor Vehicles (Third Party Insurance) Act and Section 20 of the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act the Trust shall be deemed, for the purposes of this Part—

(a)	to be a tort-feasor in relation to the death or bodily injury in question, if the insured person was a tort-feasor in relation to the death or injury; and
(b)	to be responsible for the damage to the same extent as the insured person would have been held to be responsible if sued.

DEFENDANT’S SUBMISSIONS

Mr Titus, for the defendant, submitted that the plaintiff’s claim against the defendant is foreclosed by the second limb of Section 31 of the Wrongs (Miscellaneous Provisions) Act. The Motor Vehicles (Third Party Insurance) Act does not set a limitation period within which proceedings can be commenced. The Wrongs (Miscellaneous Provisions) Act is the relevant law. There is no provision in that Act which confers discretion on the National Court to let matters proceed to trial more than three years after the date of death.

In the present case Peanz Waim died on 4 March 1999. The case should have been commenced by the third anniversary of her death, 4 March 2002. By that date the Insurance Commissioner had granted an extension of time in which to make a claim. There was nothing stopping the plaintiff from commencing the action. The plaintiff did not commence the action until 14 July 2004, almost two and a half years late. 

The six-year period referred to in Section 16(1) of the Frauds and Limitations Act does not apply here. In support of that proposition Mr Titus referred me to the decision of Salika J in the National Court in Sussana Lipai v MVIT [1996] PNGLR 363. 

The plaintiff’s assertion that the limitation period starts on the date of the extension by the Insurance Commissioner is baseless. 

The plaintiff’s assertion that she is suing the defendant for frustration, distress and anxiety due to the negligence of or breach of contract by the defendant is also baseless.

PLAINTIFF’S SUBMISSIONS

Ms Konge, for the plaintiff, asserted that the plaintiff’s claim is not time-barred. She argued that if Section 31 of the Wrongs (Miscellaneous Provisions) Act applies, the three-year period did not start until 21 August 2001. That was when the Insurance Commissioner allowed an extension of time for the plaintiff to give notice of the claim to the defendant. The plaintiff had no right to commence the proceedings – and no cause of action – until then. Therefore she had until three years after that, 21 August 2004, to commence proceedings. She commenced the proceedings on 14 July 2004, more than a month within the deadline.

Ms Konge also argued that the plaintiff was under a disability until the date that the Commissioner gave approval. Under Section 22 of the Frauds and Limitations Act – which allows the limitations period to be extended where a person is under a disability – the three-year period therefore did not end until 21 August 2004.

Ms Konge also pointed out that the plaintiff was relying on a number of different causes of action. The three-year period referred to in Section 31 of the Wrongs (Miscellaneous Provisions) Act did not apply to all of them. 

ISSUES OF LAW

This is an unusual case for a number of reasons:

•	The plaintiff is relying on a number of alternative causes of action. The first concerns the alleged negligence of the PMV driver that led to the accident of 4 March 1999. The second and third relate to alleged negligence and breach of contract by the defendant in not properly dealing with the plaintiff’s claim.

•	The plaintiff did not give notice of her claim to the defendant until two years and five months after the alleged accident. (The accident was in March 1999 and notice was given in August 2001.) 
That was almost two years after the notice should ordinarily have been given.

•	The plaintiff was allowed to give late notice by the Insurance Commissioner, who took 11 months to make a decision on her application for an extension of time. 

•	The writ was filed five years and four months after the death out of which the claim arises. (The death occurred in March 1999 and the writ was filed in July 2004.)

I put the label "unusual" on this set of facts as I expect that it is quite unusual for the Commissioner to grant approval to give notice of a claim almost two years after the date when the notice should ordinarily have been given. 

The defendant submits that these unusual circumstances should not dissuade the Court from dismissing the proceedings as they were commenced more than two years after the time limit prescribed by the Wrongs (Miscellaneous Provisions) Act. 

The unusual nature of the case gives rise to a number of issues of law: 

•	What is the cause of action?

•	Are the proceedings subject to Section 54 of the Motor Vehicles (Third Party Insurance) Act?

•	What law imposes time limits on commencement of these proceedings?
•	Did the Commissioner’s extension of time to give notice of the claim extend the time limit for commencement of court proceedings?

•	Are these proceedings time-barred?

•	If they are time-barred, does the Court have discretion to allow the proceedings to continue?

WHAT IS THE CAUSE OF ACTION IN THIS CASE?

The basis of the cause of action is the alleged negligence of the driver of the PMV that was insured by the defendant and that is alleged to have caused the death of Peanz Waim. 

I am not persuaded that the cause of action here has in any proper sense anything to do with negligence or breach of contract by the defendant. Those allegations have been inadequately pleaded in the statement of claim. 

ARE THE PROCEEDINGS SUBJECT TO SECTION 54 OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT?

Yes. 

The plaintiff is seeking damages arising out of the use of a motor vehicle on a public road. She was obliged to commence proceedings against the defendant under Section 54(1) of the Motor Vehicles (Third Party Insurance) Act. She did that. She obtained the Commissioner’s approval. She therefore complied with Section 54(6) of the Act. That is not a contentious issue in this case.

WHAT LAW IMPOSES TIME LIMITS ON COMMENCEMENT OF THESE PROCEEDINGS?

As this is a negligence action brought by someone claiming to be the dependant of a deceased person the relevant Act is the Wrongs (Miscellaneous Provisions) Act. The key provision is Section 31. It requires that such actions be commenced within three years after the death of the deceased person.

The Frauds and Limitations Act, Section 16(1), allows a person whose cause of action is founded on simple contract or tort a period of six years to commence court proceedings. The six-year period starts to run from the date that the cause of action accrued. In Sakaire Ambo v MVIT (2002) SC681 the Supreme Court (Kapi DCJ, Sawong J, Davani J) held that when a dependant of a deceased person commences a negligence action, their action is based on statute. It is not founded on tort. Therefore the Frauds and Limitations Act does not apply. 

In Sakaire Ambo the plaintiff was the brother of a man, Steven Ambo, who died on 25 June 1995 as a result of injuries sustained in a motor vehicle accident on Gavamani Road, Port Moresby. The plaintiff filed a writ of summons on 6 November 1998, three years and four months after his brother’s death. His claim was struck out by Sevua J in the National Court. In Sakaire Ambo v MVIT (1999) N2162 his Honour held that the relevant law was the Wrongs (Miscellaneous Provisions) Act, not the Frauds and Limitations Act. 

His Honour agreed with Salika J’s decision in Susanna Lipai v MVIT [1996] PNGLR 363. In that case the deceased died on 4 January 1991 from injuries sustained in a motor vehicle accident. The plaintiff, claiming to be a dependant of the deceased, commenced proceedings on 6 September 1994, three years and eight months after the date of death. Salika J held that when Sections 31 and 37(6) of the Wrongs (Miscellaneous Provisions) Act were read together it was clear that the proceedings were governed by the limitation period prescribed by that Act, not the Frauds and Limitations Act. His Honour held that the writ was filed eight months late and dismissed the proceedings. 

The plaintiff in Sakaire Ambo appealed to the Supreme Court but was unsuccessful.

The Supreme Court stated:

These provisions [Sections 31 and 37(6)] confirm that in any claim where a death has or deaths have occurred in a motor vehicle accident, the relevant Act on which to rely on is the Wrongs (Miscellaneous Provisions) Act. Section 16(1)(a) of the Frauds and Limitations Act speaks of actions founded "… on simple contract or on tort". In this case, the action the appellant has before this Court is a claim for damages as a result of a death in a motor vehicle accident. This action is governed by statute, in this case the Wrongs (Miscellaneous Provisions) Act. The appellant is asking this Court to treat this claim as an action at common law in order to attract the application of s 16(1)(a) of [the] Frauds and Limitations Act. We cannot accept this argument. This is an action based on statute. Under Schedule 2.2 of the Constitution, common law will be adopted and applied as part of the underlying law only if it is not inconsistent with a statute. In this case the cause of action is governed by [the] Wrongs (Miscellaneous Provisions) Act and s 31 stipulates the limitation period.

In the absence of that Supreme Court decision I might have been persuaded to categorise a dependency claim arising out of the allegedly negligent use of a motor vehicle as an action founded on tort, in which case a six-year limitation period would have applied. I would, of course, have had to seriously consider whether I should depart from two National Court decisions that have reached the opposite conclusion. I might have thought a person whose life has been affected by the death of a loved one, someone on whom they were dependent, should be given the benefit of the doubt and be given six years, rather than three, to get their legal house in order and commence proceedings. But, sitting as a Judge of the National Court, I am not at liberty to disregard a clear and precise decision of the Supreme Court. I am bound by Schedule 2.9 (subordination of courts) of the Constitution to follow Sakaire Ambo. 

Schedule 2.9(1) states:

All decisions of law by the Supreme Court are binding on all other courts, but not on itself.

The present case is governed by the three-year limitations period imposed by Section 31 of the Wrongs (Miscellaneous Provisions) Act. The Frauds and Limitations Act does not apply. The contention that the plaintiff was under a disability therefore cannot be sustained.

DID THE COMMISSIONER’S EXTENSION OF TIME TO GIVE NOTICE OF THE CLAIM EXTEND THE TIME LIMIT FOR COMMENCEMENT OF COURT PROCEEDINGS?

No. 

I have considered Ms Konge’s submission that the plaintiff had no cause of action until the Insurance Commissioner granted her an extension of time. That is correct. It is consistent with my decision in Sanage Kuri v MVIL (2004) N2759. I held that the cause of action of a person injured in a motor vehicle accident did not accrue until that person gave notice of intention to make a claim in accordance with Section 54(6) of the Motor Vehicles (Third Party Insurance) Act.

However when a person is making a dependency claim arising from the death of a person the date on which the cause of action accrues is not the relevant date for determining the limitation period for commencing court proceedings. Section 31 of the Wrongs (Miscellaneous Provisions) Act does not refer to the date on which a cause of action accrued. It refers to the date of death of the deceased person.

The fact that the Commissioner allowed an extension of time, though it may have affected the date on which the cause of action accrued, did not delay the commencement date of the three-year period in Section 31. It did not extend the time limit for commencement of court proceedings.

ARE THESE PROCEEDINGS TIME-BARRED?

Yes.

I accept Mr Titus’s submission that the key dates are:

•	4 March 1999 – the date of death of the deceased person, Peanz Waim;

•	4 March 2002 – the date three years after the death and therefore the date by which court proceedings should have been commenced;

•	17 July 2004 – the date that court proceedings were actually commenced.

I agree that the proceedings were commenced two years and four months late. The proceedings are therefore time-barred.

DOES THE COURT HAVE DISCRETION TO ALLOW THE PROCEEDINGS TO CONTINUE?

Ms Konge urged me to consider all the circumstances of this case, in particular the way in which the defendant has handled it. On numerous occasions Kopunye Lawyers wrote to the defendant without a proper response. When the responses came they were late. On two occasions the defendant apologised for its tardiness. The defendant did not raise the issue about the claim being statute barred until after the three year period had expired. Ms Konge submits that the defendant’s conduct was such as to set up an estoppel. The defendant encouraged the plaintiff to continue negotiating and not to commence court proceedings. Therefore it should be estopped (ie prevented) from relying on the expiry of the limitations period.

Even if I were persuaded by the equitable force of those submissions I can only entertain them if I have a discretion to relax the time limit imposed by Section 31 of the Wrongs (Miscellaneous Provisions) Act. But I have no discretion. The Supreme Court stated in Sakaire Ambo that these sorts of proceedings are governed by statute, not by common law, so no question of developing the underlying law arises. The statute does not confer a discretion.

CONCLUSION

The proceedings are time-barred and must be dismissed. 

REMARKS

Before I make a formal order I will make some remarks about two aspects of this case. First, the conduct of the parties and their lawyers. Secondly, how this decision relates to my decision in Sanage Kuri’s case. 

Conduct of parties and lawyers

The conduct of both sides of this case calls for criticism. 

MVIL

The defendant, MVIL, was, to use its own word, tardy in its treatment of the claim. Continually ignoring correspondence from a claimant’s lawyer is not a responsible way to conduct an insurance business. And it is certainly not a responsible way for a governmental body to act. 

MVIL appears to be a governmental body as defined by Schedule 1.2(1) of the Constitution. 

Schedule 1.2(1) states:

"governmental body" means—

(a)	the National Government; or
(b)	a provincial government; or
(c)	an arm, department, agency or instrumentality of the National Government or a provincial government; or
(d)	a body set up by statute or administrative act for governmental or official purposes.

MVIL is effectively owned and controlled by the National Government. It has been set up for official purposes and operates under an Act of the Parliament. The fact that it has lost its status as a statutory trust and now operates as a limited liability company under the Companies Act 1997 does not necessarily mean that its character as a governmental body is lost. (See the dicta of Kandakasi J in Dan Salmon Kakaraya v Ombudsman Commission (2003) N2478. An issue arose whether Mineral Resources Development Company Ltd was a statutory authority. His Honour held that it was, as the State was the sole shareholder and the controlling authority for appointment of the board and the managing director.) 

Governmental bodies have a duty under Sections 25 and 63 of the Constitution to apply and give effect to the National Goals and Directive Principles and to encourage compliance with the Basic Social Obligations. They are also subject to the jurisdiction of the Ombudsman Commission under Section 219 of the Constitution. 

The community service obligations of MVIT were remarked on by Gavara-Nanu J in Roselyn Cecil Kusa v MVIT (2003) N2328.

In that case an issue arose whether notice of an intention to make a claim under Section 54(5) gave sufficient details of a motor vehicle accident. His Honour stated:

… the Trust as a public institution which always has the obligation to all premium payers and the public must be accountable, to all who deal with it, in particular the illiterate claimants. The Trust must be proactive in its dealings and be prepared and willing to resolve the claims brought before it in a fair way. It must be accommodating and must not conduct itself in the ways it is seen to be taking advantage of the ignorance of the claimants.

I agree with Gavara-Nanu J’s remarks. They were expressed in relation to MVIT. They apply with equal force to MVIL.

Plaintiff’s lawyers

As for the plaintiff’s lawyers, they have had carriage of the matter since September 2000. They should have known that 4 March 2002 was a critical date, being three years after Peanz Waim’s death. Mr Titus, in his submission, referred to remarks by Brunton AJ in Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364. The State was held vicariously liable for the negligence of the Public Solicitor who failed to meet limitations periods for the commencement of civil proceedings arising from a motor vehicle accident.

Brunton AJ stated:

The duty of care that a lawyer has is not measured against standards that may be considered reasonable for labourers, or carpenters, or nurses, or community schoolteachers, or research biochemists. In the context of the legal profession, civil negligence cases are the bread and butter of much of the profession. The time limitations under the Motor Vehicles (Third Party Insurance) Act, the Wrongs (Miscellaneous Provisions) Act and the Frauds and Limitations Act, for all lawyers, are run-of-the-mill obligations imposed on the conduct of actions. Lawyers ignore them at their peril. The default in not adhering to these time limitations was not just a matter of heedlessness, or carelessness, but fundamentally unlawyerly conduct, and a clear breach of the duty of care, and the standard of care that the profession recognises as being owed to a client.

I agree with the sentiments expressed by Brunton AJ. I recommend that every lawyer who works in this area of their law pastes the limitation periods imposed by those three Acts on their office walls, for the benefit of their clients and themselves.

Sanage Kuri’s case

I handed down judgment in Sanage Kuri (2004) N2759 on the same day I handed down judgment in the present case. There were some similarities. The defendant, MVIL, applied to have both proceedings struck out on the ground that they were time-barred. 

In Sanage Kuri the writ was filed more than eight years after the plaintiff was injured in a motor vehicle accident. As the case was not about the death of any person, it was subject to the six-year limitation period under the Frauds and Limitations Act. Section 16(1) provides that a plaintiff has six years to commence proceedings, after the date on which the cause of action accrued. I held the cause of action did not accrue until notice of intention to make a claim was given to the defendant. 

The case was unusual as the Insurance Commissioner granted approval under Section 54(6) of the Motor Vehicles (Third Party Insurance) Act seven years and nine months after the accident. That was when the cause of action accrued and the plaintiff commenced the proceedings within a year after that date, well within the six-year period. I decided that the effect of the Commissioner’s extension of time was to delay the starting date of the six-year period in the Frauds and Limitations Act. 

That case is to be distinguished from the present case. Where a death occurs the dependants of the deceased person are constrained by the clear wording of Section 31 of the Wrongs (Miscellaneous Provisions) Act: actions must be commenced within three years after the death of the deceased person. 

At first glance the decision in the present case may appear inconsistent with Sanage Kuri. However, I do not consider that to be so. The cases involved different statutory requirements. In Sanage Kuri I applied the law in a way that allows a person in special circumstances to file what would normally be regarded as a late writ. In the present case I have also applied the law – a different law – which allows no leeway of choice. 

ORDER

The order of the Court will be that:

•	The defendant’s notice of motion filed on 9 November 2004, seeking an order that the proceedings be dismissed for being filed out of time, is upheld.

•	The plaintiff shall pay the defendant’s costs of these proceedings, to be taxed if not agreed.

Orders accordingly.
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Lawyers for the plaintiff		: 	Kopunye Lawyers
Lawyers for the defendant		: 	Mirupasi Lawyers