Home | Databases | WorldLII | Search | Feedback Papua New Guinea District Court

Makinge v Motor Vehicles Insurance (PNG) Trust [1997] PGDC 15; DC131 (20 March 1997)

DC131

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 313 OF 1996

BETWEEN

DAVID MAKINGE
Complainant/Applicant

AND

MOTOR VEHICLES INSURANCE (PNG) TRUST
Defendant/Respondent

And In The Matter Of An Application Pursuant To Section 54 (6)(B) Of The Motor Vehicles (Third Party Insurance) Act Chap. No. 295 For Extension Of Time To Give Notice Of Claim To The Motor Vehicles Insurance (PNG) Trust

Mt. Hagen: Appa
1997: 19 February, 20 March

RULING

Notice of action - Application to the Court for extension of time - Personal injuries - Motor Vehicles Accident - Evidence- sufficient cause - Court's discretion - Whether court bound by technical rules of evidence - Motor Vehicles (Third Party Insurance) Act ch. 295, s. 54 (6) (b).

Held:

(1) The court is not bound to apply technical rules of evidence in considering in application under s.54(6)(b) of the Motor Vehicles (Third Party Insurance) Act ch. 295 lest it defeats the whole purpose of the provision.

(2). The production of Police Accident Report, Medical Report and any other relevant letters exchanged between the applicant or his Lawyer and the Trust through the affidavit of either the applicant or his lawyer is admissible evidence for purposes of an application to the court under s.54(6)(b), MVIT. Koroma Pup and Baga John and Walep Koglop v Motor Vehicles Insurance (PNG) Trust N1415 (1996) followed.

CASES CITED:
Korowa Pup, Boga John and Walep Koglop v. MVIT N1415 (1996)

D. O'Connor for the Complainant/Applicant

A. Kandakasi for the defendant/Respondent

APPA P.M.: The Motor Vehicle Accident in this case in which the applicant sustained injuries occurred on or about 4th September, 1993. After some unsuccessful attempt to engage the legal services of a lawyer due to financial problem, the applicant engaged his present lawyer to pursue the claim. The applicant is a villager with no knowledge of the legal requirement to give notice within six months.

Upon receiving instruction, the complainant's lawyer wrote to the Commissioner seeking extension of time. The Commissioner did not respond until some 18 months later declined to give an extension. The refusal letter was dated 3rd April, 1996. The complainant now makes this application for extension of time to give notice and to pursue with the claim.

The defence Counsel vigorously argued that notice of one's intention to make a claim against the defendant is a condition precedent for a claim against the defendant. If section 54(6)(b) Notice was not given within the first 6 months or within any given period then claim cannot be brought against the defendant. Defence relied on the principle settled in Graham Rundle's case that Notice of Intention to make a claim is in mandatory terms and must be given within six months or within such further period allowed by the Insurance Commissioner or a court basically for the purpose of enabling the parties to make enquiries before further proceedings were conceded. There were other relevant cases cited following Rundle's case.

Defence also argued that the Police Road Accident Report and Mr. O'Connor's affidavits be not admitted in evidence as it was hearsay evidence.

A further defence argument was that the complainant was wrong in issuing summons or lodging the claim before the issue of notice was settled following the authority in Rundle's case.

Mr. Kandakasi is an experienced lawyer in this area of litigation and is well acquainted with MVIT cases dealing with various issues. A well prepared written submission was filed to assist the court in this application and I am indebted to him.

I think it has been generally accepted that in such application for an extension of time, an applicant needs to show sufficient cause by:-

(a) Providing reasonable explanation for any delay in either notifying the Trust or applying for an extension of time; (Peter Wangi) and

(b) Show that the delay has not and will not cause any prejudice to the defendant; (Graham Rundle) and

(c) Disclose a prima facie case against the defendant. (Jack Lukas Kuri, N1107)

I have considered both arguments and the relevant cases cited and have formed the view that in the interest of justice and fairness the applicant be allowed to give late notice to the Trust to pursue with the claim.

I have also considered that the Trust would not be prejudiced in the claim because the applicant had already provided particulars of his injuries to the Insurance Commissioner in order to conduct investigation, but made no attempts to do so for 18 months and simply refused to extend the time as requested without giving any reasons.

My other reason for allowing the application is in line with the authority of Jack Lukas N1107 that the applicant had shown a prima facie case against the Trust. The driver of the vehicle involved in the accident was charged and convicted for negligent driving. Applicant was a passenger in that vehicle and was injured and the Doctor assessed his disability at 25%. To prevent him from claiming compensation because of the technical rule of law would be doing injustice to him. The Supreme Court in Plar No. 01 of 1986, [1980] PNGLR at page 326 it acknowledged my above proposition that ......"whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the court can and should use its good sense to remedy it by reading words in, if necessary - so as to do what Parliament would have done, had they the situation in mind...."

My other consideration was that the issue of admissibility or otherwise of the Police Road Accident Report and medical report was to be decided at trial proper and not in this application. We are not going into the substantive case. The case laws relied on in defence were only applicable in trial proper. My decision on this issue was supported by the case of Korowa Pup and Boga John and Walep Koglop v MVIT. N1415 [1996].

The complainant/applicant is granted the order for an extension of time to give notice to the Motor Vehicles Insurance (PNG) Trust to lodge his claim. Costs be in the cause.

Tamutai Lawyers: Complainant

Young & Williams Lawyers: Defendant