Siriga v Motor Vehicle Insurance Ltd [2023] PGNC 480; N10613 (12 December 2023)

N10613

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 280 OF 2023

BETWEEN:
THOMAS SIRIGA for himself and on behalf of dependents of Clyde Siriga, deceased.
-Plaintiff-

AND
MOTOR VEHICLE INSURANCE LIMITED
- Defendant-

Lae: Dowa J
2023: 11^th & 12^th December

PRACTICE AND PROCEDURE – Originating Summons - Plaintiff seeking extension of time to give notice of intention to issue proceedings under section 54 (6) of Motor Vehicle (Third Party Insurance) Act -Court has discretion to extend time, based on proper principles or considerations-where there is delay -explanation for delay-lack of prejudice to other party and interest of justice- plaintiff meeting the requirements-application was granted.

Case Cited:
Kipane v Anton (2003) N2429;
Bomson v Hart (2003) N2428.
Serave v Bahafo (2001) N2078
Coecon Ltd v Westpac Bank (2012) N4926
Pacific Energy Aviation (PNG) Limited v PNG Air Limited (2018) N8196

Counsel:
T. Berem, for the Plaintiff
B. Tomake, for the Defendant

RULING

12^th December 2023

1. DOWA J. This is a ruling on an application by the Plaintiff seeking leave for extension of time to give notice of claim under section 54 (6) (b) of the Motor Vehicles (Third Party Insurance) Act to file proceedings against Motor Vehicle Insurance Limited.

Background Facts

2. The Plaintiff, Thomas Siriga, is the father of late Clyde Siriga, deceased. The deceased died in a motor vehicle accident which took place on 13^th June 2021 at Cassowary Street, Lae, Morobe Province. The motor vehicle involved is Nissan Wagon Reg. No. LBU 569 owned and driven by one Gopana Garukae.

3. It is alleged that the accident was caused by the negligence driving of the said driver, Gopana Garukae, who hit the deceased on the side of the road near Wagtail Street along the Cassowary Road, Lae city, Morobe Province. It is alleged the driver, who was on high speed and driving under the influence of liquor, caused the accident. The motor vehicle is also said to be unregistered and uninsured at the time of the accident. As a result of the accident, the deceased died from the injuries he sustained.

4. The deceased’s death would have given rise to a claim for compensation under the Motor Vehicle (Third Party Insurance) Act. The Plaintiff did not give notice to lodge a claim to the Defendant within six (6) months as required by section 54 (6) of the said Act.

5. The Plaintiff now applies for extension of time to comply with the condition precedent as required by section 54 (6) (b) of the Act. The Defendant opposes the application.

Issues

6. The main issue for consideration is whether the Plaintiff be granted extension of time to give notice of claim under section 54 (6) (b) of the Motor Vehicles (Third Party Insurance) Act.

LAW

7. The Plaintiff’s application is made under section 54 (6) (b) of the Motor Vehicles (Third Party Insurance) Act. Section 54 of the Act reads:

“54. CLAIMS FOR DAMAGES.

(1) Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of–

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the successor company and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.

(2) Subsection (1) does not apply to a claim for damages made under the Motor Vehicles (Third Party Insurance) (Basis Protection Compensation) Act 1974.

(3) A claim under Subsection (1)(a) or (b) may be made, and any proceedings to enforce such a claim may be taken, notwithstanding that the owner or driver of the motor vehicle–

(a) is dead; or

(b) cannot be found; or

(c) is the spouse of the person whose death, or to whom bodily injury, has been caused.

(4) The inquiry and search under Subsection (1)(c) for the purpose of establishing the identity of the motor vehicle may be proved orally or by the affidavit of the person who made the inquiry and search.

(5) Where an award of damages is made by a court in respect of a claim under Subsection (1) that exceeds the amount of liability of the successor company specified in Section 49(2)(a), the court shall, at the time when it makes the award, determine against whom (if anyone) the excess shall be awarded, and an award under this subsection operates as a judgement against that person for all purposes.

(6) No action to enforce any claim under this section lies against the successor company 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; or

(b) the court before which the action is instituted,

on sufficient cause being shown, allows.”

8. Section 54 (1) (b) and (c) of the principal Act is repealed by the Motor Vehicles (Third Party Insurance) (Amendment) Act 2021 which came into effect on 21^st September 2021.The effect of the amendment is that no claim lies against the Defendant for death or injuries arising out of the use of a motor vehicle which is uninsured and or unidentified.

9. The principles governing application for extension of time to comply with time period prescribed by Statute, or National Court Rules or Orders of Court are settled in this jurisdiction: See Kipane v Anton (2003) N2429, Bomson v Hart (2003) N2428, Serave v Bahafo (2001) N2078, Coecon Ltd v Westpac Bank (2012) N4926 and Pacific Energy Aviation (PNG) Limited v PNG Air Limited (2018) N8196.The Court in appropriate cases can extend time for compliance in the exercise of its discretion.

10. The relevant considerations are:

1. Reasonable explanation for default.
2. Period of delay.

100. Prejudice to the other party.

4. Interest of Justice.
   

11. The Court will apply the above considerations in determining the current application.

Delay

12. The accident took place on 13^th June 2021. The 6 -month notice period lapsed on 13^th December 2021. The current proceedings were filed on 13^th October 2023. The delay is about two years. It is a long delay.

Explanation for the Delay

13.The Plaintiff provided an explanation for the delay in his affidavit filed 18^th October 2023. Paragraphs 20 to 35 of the affidavit are set out below:

“20. On 23^rd May 2023, Berem Lawyers filed National Court proceeding entitled as WS No. 248 of 2023 against Mr Gareukae seeking compensatory damages for the death of the deceased. Appended hereto and marked with the letter “TS-7” is a true copy of the Writ of Summons (WS No. 248 of 2023).

21. Mr Garukae filed his defence on 4^th July 2023 generally denying the claim and also pleaded at paragraph 10 of his defence that the alleged cause of action arose on 13^th June 2021 well before the repeal of Section 54(1)(a)(b) of the Motor Vehicles (Third Party Insurance) Act. Appended hereto and marked with he letters “TS-8” is a true copy of the defence.

22. The Motor Vehicle (Third Party Insurance) Act was amended in 2021 and section 54(1)(a)(b) was repealed. The Act was certified by the Speaker of the National Parliament to come into operation on 21^st September 2021. Appended here to and marked with the letter “TS-9” is a true copy of the Motor Vehicles (Third Party Insurance) Act 2021.

23. Mr Garukae’s lawyers then raised the issue on the competency of the proceeding by a letter dated 2^nd June 2023. Appended hereto and marked with the letter “TS-10 is a true copy of the letter from Albright Lawyers to Berem Lawyers dated 2/06/2023.

24. I then sought advice from Berem Lawyer’s in July 2023 on the propriety of WS No. 248 of 2023.

25. Due to extensive work commitments and expectations of both the National and the Morobe Provincial Governments on the Wafi/Golpu mega gold project, I was not able to confirm which option to pursue until August 2023, when I instructed Berem Lawyers that we should withdraw WS No. 248 of 2023 and name Motor Vehicles Insurance Limited alone as the Defendant in another similar proceeding.

Accrual of cause of action

26. The cause of action accrued on 13^th June 2021 when the deceased was killed.

27. The six month’s period within which I would have given the notice of claim pursuant to the Motor Vehicles (Third Party Insurance) Act arose on 13^th June 2021 and lapsed on or around 13^th December 2021.

Extent of delay in seeking extension of time to give notice.

28. From 13^th December 2021 (last date of giving notice) to the date of swearing of this affidavit of mine (10^th October 2023), there was a delay of about 1 year and 10 months to seek extension of time from the Insurance Commissioner or the National Court.

Reasons for not giving notice of claim within 6 months

29. As stated above, we engaged in numerous mediation discussions which were not successful as the offers made by Mr Garukae were inordinately low. The mediation discussions took some time.

30. I spend considerable time with the police investigating team after the initial charge against Mr Garukae was struck out and he was discharged for want of police file. I had to see the senior police officers to register my dissent and seek their attention to the investigations conducted by their officers so that the case progressed smoothy from committal to trial.

31. The other thing that really confused me was on the amendment made to the Motor Vehicles (Third Party Insurance) Act 2021 which repealed section 54(1)(a)(b) and made owners of insured and unregistered vehicles personally liable for bodily injuries and death caused by such vehicles. My reasonable and honest view was that because Mr Garukae’s vehicle was unregistered and uninsured at the time of the motor vehicle accident on 13^th June 2021, himself would have been named as the Defendant, hence, I issued instructions to Berem Lawyers accordingly, which led to the filing of WS No. 248 of 2023.

32. When Albright Lawyers raised the issue again that the amendment to the Motor Vehicles (Third Party Insurance) Act did not have retrospective effect to cover the date of the accident and death of the deceased (13^th June 2021), it became sensible that Motor Vehicles Insurance Limited was not exonerated from any potential claim in relation to the deceased estate.

33. I then instructed Berem Lawyers to considered withdrawing WS No. 248 of 2023 against Mr Garukae and reissue proceedings against Motor Vehicles Insurance Limited.

34. More so, whilst I am educated and currently working, I am not able to make an informed decision as to the progress of the matter as it involved legal interpretation of the amended Act.

35. It was neither deliberate nor intentional on my part not to give the requisite notice to the Motor Vehicles Insurance Limited prior to issuing proceedings.’

14. Based on the explanation provided, Mr. Berem, counsel for the Plaintiff, submits that the Plaintiff has provided a reasonable explanation for the delay and that the Plaintiff will not suffer any prejudice as it will have the chance to defend the proceedings.

15. Mr. Tomake, counsel for the Defendant, opposes the application. He submits the recent amendment to the principal Act by the Motor vehicles (Third Pary Insurance) (Amendment) Act 2021 removes liability against the Defendant from claims arising out of use of motor vehicles where the vehicle involved is unregistered, uninsured and unidentified. He submits that no claim lies against the Defendant in the present case because the subject motor vehicle involved in the accident was unregistered and uninsured at the time of accident.

16. I have considered the Plaintiff’s explanation and submissions of counsel and accept the explanation of the Plaintiff. The accident took place on 13^th June 2021. The amendment to principal Act came into effect on 21^st September 2021. In the light of the amendment to the Act, the Plaintiff formed the view that no claim would be made against the Defendant and thus commenced proceedings against the owner of the motor vehicle in proceedings, WS No. 248 of 2023-Thomas Siriga v Gopana Garukae, only to be confronted by a legal defence that no claim can be legitimately brought against the owner of the motor vehicle as the principal Act was still in force and applicable at the time of accident. As a result, the Plaintiff withdrew the proceedings WS 248/23 against the owner and decided to lodge a claim against the Defendant. Realizing the failure to comply with the notice requirement under section 54(6) of the principal Act to pursue the claim, the Plaintiff now seeks approval for extension. Clearly, the Plaintiff has taken steps to pursue the claim though misguided along the way. It is not as though he sat on his rights.

17. For the foregoing reasons, I accept the explanation offered by the Plaintiff for the delay.

Will the other party suffer any prejudice?

18. The next issue is whether the defendant will suffer any prejudice. There is no evidence that the Defendant will suffer any prejudice. The accident took place at the heart of Lae city. The accident has been investigated. The driver and owner of the motor vehicle is identified. The identity of the motor vehicle can also be easily ascertained. Although there is a delay of two years, the evidence shows the owner and driver of the vehicle has just been charged with Dangerous Driving Causing Death and has been committed to stand trial in the National Court. The accident has also been investigated by police and it is not difficult for the Defendant to conduct its own investigations.

19. At this juncture I am mindful of Mr. Tomake’s submissions that section 54 (1) (b) and (c) of the principal Act was repealed by the 2021 Amended Act. I also note the submissions of counsel for the Plaintiff arguing that the amended Act does not have retrospective effect. The arguments presented by counsel on the retrospectivity of the Act is a matter for full arguments at the appropriate time. For now, after perusing the Amended Act, I find there is no express provision stating that the Amended Act will have retrospective effect. It is therefore arguable that a claim lies against the Defendant under section 54 (1) (b) and (c) of the principal Act.

20. The Defendant is still in a good position to defend itself and therefore is unlikely to suffer any prejudice.

Interest of Justice

21. On the other hand, if this application is refused, injustice will be done to the Plaintiff and his family. The deceased was a young man, aged around 24 years. He was educated and was about to be employed by a major mining company when he met his fate. His parents and extended family members have missed his company and potential financial contributions he would have made to the family and continuing into the future. His premature death was occasioned by someone who is alleged to be drunk and drove carelessly. In the circumstances it is not in the interest of justice to deny the Plaintiff the opportunity to lodge a claim against the Defendant.

22. I am of the view that the Plaintiff has an arguable case and he be allowed to pursue his claim. For the foregoing reasons, I am inclined to grant the orders sought by the Plaintiff.

Costs

23. Although the proceedings were opposed by the defendant, it is not in the interest of justice to award cost against the Defendant. This is because the Plaintiff was slow in pursuing his claim.

ORDERS

24. The Court orders that:

1. the Plaintiff is granted an extension of time under section 54 (6) (b) of the Motor Vehicles (Third Party Insurance) Act to give notice of intention to issue proceedings against the defendant, the Motor Vehicle Insurance Limited, within 21 days from the date of this order.
2. No order as to costs.
3. Time be abridged.

_______________________________________________________________

Berem Lawyers: Lawyers for the Plaintiff

Jaku Lawyers: Lawyers for the Defendant