Malipu v Motor Vehicles Insurance Ltd [2009] PGNC 169; N3793 (17 September 2009)

N3793

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 533 OF 2007

BETWEEN

MANAME MALIPU
Applicant

AND

MOTOR VEHICLES INSURANCE LIMITED
Respondent

Mount Hagen: Makail J,
2009: 14th & 17th September

INSURANCE LAW - Application for leave to give notice out of time - Notice of claim to insurer must be given within six months - Claim for damages for physical injuries sustained from motor vehicle accident - Onus on applicant to show sufficient cause - Whether sufficient cause shown - Reasonable explanation - Arguable case - No prejudice - Leave granted - Motor Vehicle (Third Party Insurance) Act - Section 54(6)(b).

Cases cited

Sakame Yambone -v- Motor Vehicle Insurance Trust: OS No 534 of 2007(Unnumbered & Unreported Judgment of 21st May 2008)
Paulus Pato -v- Motor Vehicle Insurance Trust (2008) N3403
Michael Ivia -v- Motor Vehicle Insurance Trust [1995] PNGLR 183
Ovoa Rawa -v- Motor Vehicle Insurance Trust (PNG) Limited (1994) N1276
Motor Vehicle Insurance Limited -v- Martha Kuma [2000] PNGLR 1
Raben Kalalyo -v- Motor Vehicle Insurance Trust (PNG) Limited [1996] PNGLR 368

Counsel:

Mr P Kunai, for the Applicant
Mr K Peri, for the Respondent

17th September, 2009

JUDGMENT

1. MAKAIL J: The applicant in this case is applying for leave to give notice of her intention to make a claim against the Motor Vehicle Insurance Limited (the "Defendant") outside of the prescribed 6 months time limit pursuant to section 54(6)(b) of the Motor Vehicle (Third Party Insurance) Act, ("MVTPI Act"). She was one of nine passengers traveling in a motor vehicle described as a Mazda Truck bearing the Registration No HAG-712 on Kandep Road on 7th July 2005 when it allegedly had an accident. It is alleged that as a result of the accident, the Applicant was one of the passengers who sustained serious bodily injuries.

2. In her Affidavit sworn on 16th May 2007 and filed on 18th September 2007, the applicant seeks to make a claim against the insurer of the motor vehicles for damages for the injuries sustained but is out of time by a period of 4 days to give the required notice to the insurer within 6 months from the date of the occurrence of the accident. According to the Medical Report of Dr A Kuglame of Laiagam District Hospital dated 29th November 2005, marked as annexure "B" to her Affidavit, she was treated at the hospital on 7th July 2005 and had plaster cast applied to the fractured left forearm for eight weeks. On 29th November 2005, she returned to the hospital for a review. Although the accident occurred on 7th July 2005, the Medical Report was prepared on 29th November 2005.

3. According to the Police Accident Report marked as annexure "A" to her Affidavit, it was prepared on 5th October 2005. Her lawyers had written a letter to the Insurance Commissioner on 11th January 2006 for extension of time but the Insurance Commissioner in a letter dated 24th May 2006 refused her request for extension of time. The Insurance Commissioner gave the following reasons for his refusal:

1. The said motor vehicle involved in the accident was not registered against third party liability; and

2. Uninsured vehicles are not covered under the third party insurance policy and therefore compensation could not be claimed.

4. Her evidence is corroborated by her lawyer, Mr Kunai who has also filed an Affidavit on 16th April 2009 and enclosed a copy of a letter to the Insurance Commissioner dated 11th January 2006 citing reasons for the delay in giving notice to the Defendant within time. It read in part as follows; "[T]he reason for the delay was that firstly our client is illiterate with no formal education and he was not aware of the time limit in which to give notice and secondly, he could not easily find money to engage the services of a lawyer in time."

5. The Defendant has also filed and relies on the Affidavit of Robert Doko sworn on 16th October 2007 and filed on 18th October 2007 and Affidavit of Koeya J Peri sworn on 19th October 2007 and filed on 22nd October 2007 to oppose the application for extension of time. A copy of the letter from the Insurance Commissioner of 24th May 2006 is annexed as annexure "A" to the Affidavit of Mr Peri.

6. Having considered the evidence and submissions of both counsels, I consider that the delay is in two parts. First, is the period of six months from 7th July 2005 to 11th January 2006 and secondly, the period from 24th May 2006 to date of issue of this proceeding of 18th September 2007. That is a period of one year and four months. The law in respect of application for leave to give notice to the Defendant out of time or for extension of time to give notice to the Defendant is settled in this jurisdiction. An applicant is required to show sufficient cause by establishing the following:

1. a reasonable explanation for the delay in giving notice to the Defendant within time;

2. an arguable case; and

3. the Defendant will not be prejudice by the grant of leave.

7. The first matter I wish to mention is that, as the Court had granted leave to two of the passengers of the motor vehicle allegedly involved in the same accident as the applicant in this case in 2008, it does not follow that the Court will grant leave to the applicant in this case as a matter of course. These cases were Sakame Yambone -v- Motor Vehicle Insurance Trust: OS No 534 of 2007 (Unnumbered & Unreported Judgment of 21st May 2008) and Paulus Pato -v- Motor Vehicle Insurance Trust (2008) N3403. The applicant still bears the onus to establish sufficient cause before the Court may grant leave. This case must be determined on its on peculiar circumstances. See Michael Ivia -v- Motor Vehicle Insurance Trust [1995] PNGLR 183.

8. Bearing in mind this underlying principle of law, can it be said that the applicant has established sufficient cause for a grant of leave? With respect to the first consideration of reasonable explanation for the delay in giving notice, first, I accept that the applicant had been nursing her injuries between 7th July 2005 and 29th November 2005. The last time she was able to get back on track so to speak was on 29th November 2005 after been cleared by Dr Kuglame. In other words, there is suggestion which has not been refuted by the respondent that her movement was restricted or hampered by the injuries that she was unable to see the lawyers before 29th November 2005.

9. In Ovoa Rawa -v- Motor Vehicle Insurance Trust (PNG) Limited (1994) N1276, Injia J, (as he then was) granted leave to the applicant to give notice to the respondent out of time. His Honour said that the phrase "sufficient cause" embodied a wide range of factors which may explain the delay in giving notice within time and one of the reasons for granting leave was that, the applicant’s physical disability caused by the accident restricted her mobility over the succeeding years and prevented her from pursuing her claim within time or within a reasonable time. Thus, in my view, the applicant in this case has satisfactorily explained the delay from 7th July 2005 to 29th November 2005.

10. Secondly, the Medical Report was not available until 29th November 2005 and thirdly, the Police Accident Report was also not available until 25th October 2005. In my view, these documents were crucial to assist the lawyer to determine whether there is a case to make against the Defendant before giving notice to it. In that regard, the Supreme Court decision of Motor Vehicle Insurance Limited -v- Martha Kuma [2000] PNGLR 1 which Mr Peri of counsel for the respondent has cited in his submission can be distinguished on the facts from this case.

11. In that case, the Supreme Court upheld an appeal by the appellant and set aside the decision of the National Court to grant leave to the respondent to give notice out of time because it found that the National Court erred when it did not find that it is not a requirement under section 54(6) of the MVITP Act for the respondent to provide a Police Accident Report and a Medical Report when giving notice to the appellant. The delay in not giving the notice to the appellant within time was because these two reports were not immediately available to respondent and the lawyers for the respondent had advised her husband to obtain them first before submission with the notice to the appellant.

12. In the present case, the applicant is not saying or has said that the Police Accident Report and the Medical Report will be or would have been provided to the respondent at the time of giving notice but for the lawyer to use to determine whether or not she has a case against the respondent. If she has a case, a notice would be or would have been forwarded to the respondent. Further, there is no suggestion that the lawyer had advised her to obtain these reports first before he could give notice with these reports to the respondent as was the case in Martha Kuma’s case (supra). I am therefore satisfied that the applicant has satisfactorily explained the delay from 07th July 2005 to 29th November 2005.

13. As to the period from 29th November 2005 to 11th January 2005, the applicant has explained through her lawyer Mr Kunai in the letter to the Insurance Commissioner dated 11th January 2006 that, "[T]he reason for the delay was that firstly our client is illiterate with no formal education and he was not aware of the time limit in which to give notice and secondly, he could not easily find money to engage the services of a lawyer in time." It seems that the applicant is illiterate and also not aware of the requirement to give notice within six months to the respondent. I am prepared to accept those two reasons as reasonable explanation for the delay from 29th November 2005 to 11th January 2005 as was the case in Raben Kalalyo -v- Motor Vehicle Insurance Trust (PNG) Limited [1996] PNGLR 368 which I also followed in Paulus Pato’s case (supra). See also Ovoa Rawa’s case (supra).

14. In accepting the above reasons as explanation for the delay, it is important also not to ignore the submission of the respondent that it is common knowledge that the compensation culture is deeply rooted in the Highlands region of Papua New Guinea and the applicant should have known at once that she was entitled to claim some form of compensation from the owner of the motor vehicle or the respondent for the injuries sustained from the alleged accident and should have immediately pursued the claim through her lawyers without delay. But I also consider that this is not the sole determining factor because I have to consider the other factors too. See Paulus Pato’s case at pp 22-23 (supra).

14. The second part of the delay is from 24th May 2005 to 18th September 2007. The applicant explains that she hails from Kandep, being a remote part of the country where communication and accessibility to lawyers is difficult. After the Insurance Commissioner replied to her request of 11th January 2006 for extension of time on 24th May 2006 where he refused it, she did not attend to her lawyers until 16th May 2007 and when she did, she was advised by her lawyers that the Insurance Commissioner had refused her request for extension of time and she was to make an application to the Court. That was the time she also executed her Affidavit to support the application which was filed on 18th September 2007.

16. Further, she also had to look for money to pay for her legal fees before the application could be filed. Then her lawyers were unable to immediately file this application in good time because she had no money to pay their legal fees. I gather that when she was able to afford the legal fees, her lawyers then filed this application on 18th September 2007. I accept this as reason for the delay between the time the Insurance Commissioner refused her application for extension of time and the date of filing this application.

17. The second consideration is whether there is an arguable case. I am satisfied that the applicant has shown that there is an arguable case because it is alleged that there is a motor vehicle accident on 7th July 2005. The applicant was one of the nine passengers injured in the accident. As a result, she seeks to sue the respondent for damages arising from the accident. Whether she will succeed is a matter for the Court to decide at another time. For now, I am satisfied that the applicant has shown an arguable case.

18. The last consideration is whether the respondent will be prejudiced if leave is granted. I accept that the respondent will not be prejudiced because there is already sufficient information in the Police Accident Report which show that there were two motor vehicles allegedly involved in the accident. One belonging to a Ski Tupia which was driven by a Potbakali Kandato of which the applicant was one of the passenger and the other is a highway truck. Although there is no information on this highway truck, I accept that more information will come to light when the proper proceeding is issued if the Court grants leave. Conversely, and for the above reasons, I reject Mr Peri’s submissions that the respondent will be prejudiced in its defence if leave is granted to the applicant to give notice out of time because the identity of the other motor vehicle is not known.

19. I also accept Mr Kunai’s submission that since the Court has earlier on granted leave to two other passengers of the motor vehicle allegedly involved in the same accident, the witnesses for the respondent in those two earlier cases may be the same witnesses in this case. These two cases are Paulus Pato and Sakame Yambone (supra).

For the forgoing reasons, I am satisfied that the applicant has made out a case for grant of leave and I grant leave to the Applicant to give notice of claim to the respondent within twenty one days from the date of this order. I also order that each party shall bear their own costs of the proceeding and time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

_____________________________________________

Lawyers for the Plaintiff: Kunai & Co Lawyers
Lawyers for the Defendant: Warner Shand Lawyers