DC119

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Case NO 185 OF 1995

BETWEEN

AKAI AMBAI PEL
Complainant

AND

MVI (PNG) TRUST
Defendant

Mt Hagen

PUPAKA, PM
21 May 1999

Cases Cited
Rundle v M.V.I.T. (see all four cases)
Michael Ivia v M.V.I.T. (Unrep.) N1357
Julie Yapole v M.V.I.T. (Unrep.) (1998) Judgment of Kapi DCJ

PUPAKA, PM. This is the decision on the application for an extension of time by the applicant within which she intends to give notice to the respondent Trust, pursuant to Section 54 (6)(b) of the Motor Vehicles (Third Party Insurance) Act, Chapter No. 295, (the Act).

Both sides agreed to file submissions for the Court's consideration on the strength of any affidavits filed. They have filed affidavits and their respective submissions. I now propose to consider all the affidavits and submissions and decide accordingly on the application.

The applicant found herself outside of the statutory 6 months within which she may give the appropriate notice. She therefore through her lawyers sought to obtain the necessary time extension from the Insurance Commissioner pursuant to Section 54 (6) (a) of the Act. She was unsuccessful in her attempts. She now comes before this Court for a favourable ruling. She is entitled to come to this Court asking it to exercise its discretion favourably for her. See generally all four RUNDLE v MVIT cases.

The applicant, and indeed other such applicants seeking like relief, must, in the words of the pertinent provision, show "sufficient cause". What may amount to sufficient cause has been held to depend very much on the circumstances of each case. However it is generally accepted that applicants like the current such one must generally satisfy the Court that they have a plausible explanation for the delay in giving notice within the statutory time; that they have a arguable case on the merits; and that the Trust is not likely to suffer any prejudice by the delay.

Obviously applicants would have to show that they have an arguable case on the merits. The Courts would not possibly sanction a fishing trip, so to speak. Arguable case per se is all that is required. It may not be necessary for the applicant to show that he or she is likely to succeed for the purposes of an application such as this.

Whether the delay may prejudice or has prejudiced the Trust is also relative and is an issue of question of fact. It is not just the lapse of time or the length of delay. The evidence must show that there is a level of prejudice manifested on the Trust that can not be cured such that the possible claimant (applicant) is overly advantaged as against the Trust. For instance Kapi, DCJ in the case of Michael Ivia v M.V.I.T. (Unrep.) N1357 had this to say.

"The next question is whether a period of two (2) years and four (4) months is so long to result in prejudice to the Defendant in defending the matter. It is not possible to determine precisely at what period in time it can be said that he Defendant would be prejudiced. That of course is always a question of fact. For example, if no police report is made giving details of the accident, then of course it is extremely difficult for anyone in these circumstances to find such a person and obtain instructs. If there are details given in a report then the Defendant would be able to investigate the circumstance of the accident."

So has the applicant herein shown that she has an arguable case on the merits and that no prejudice belies the Trust? I have to accept in the light of the medical report; the police report, and the generally sincere attitude of the applicant in attempting to seek time extension from the Insurance Commissioner and lodging this application, that she has an arguable case. It is not a waste of any one's time. She has disclosed the date of accident, the place of accident, and the alleged identity of the motor vehicle, and the alleged owner and driver. She has also indicated that there maybe an issue of contributory negligence but I would think that is a matter of argument in any future proceedings. It only goes to show that the applicant has an arguable case, as it were. I also accept that there is no serious prejudice manifested against the Trust. I do not consider the length of delay alone, a period of a bit less than two (2) years, on its own, a matter of serious prejudice. There is sufficiently contemporaneous medical and police reports available which would enable the Trust to conduct its own investigation of the accident.

However, this is not to say the applicant has got it down pat for the purposes of these proceedings. Sufficient cause, or the need to show sufficient cause, also obliges the applicant to satisfy the Court as to why she fell outside the statutory time limit, the whys of it sufficient to invoke this Court's discretionary powers in her favour. For if it is only a matter of disclosing an arguable case without any ascertainable level of prejudice to the Trust by the obvious delay, Parliament would have said so. But Parliament's intention as interpreted by the Courts and laid down in the precedents, is that applicants like Akai Ambai Pel ought to show just what causes beyond her control caused her to fail to comply with the six (6) months requirement. The six (6) months requirement, I may add, is a statutory imposition for valid and sound reasons.

See for instance Rundle -v- M.V.I.T. [1988] PNGLR 20 at page 23:

"the purpose of Section 54 (6) is to give the Trust early notification of the claim so that it can make its inquiries. Obviously inquiries as to the driver, the owner, and the insurance details of a vehicle, become more difficult as time passes. Drivers change addresses and sometimes in Papua New Guinea the names, witnesses disappear, expatriates leave Papua New Guinea and police accident reports and insurance certificates get lost. An injured person must issue his writ within three years. Section 54 (6) is designed to give the Trust prior notice of the claim within six months."

For her purposes the applicant says she was at the relevant times a school aged girl of about 12 - 14 years, uniformed as to the requirements of the law. She says she being an ignorant villager would not have known to act any earlier than she did. She seems to raise the same sort of excuse for her guardian. The applicant's arguments also seem to raise the general case of the police failing to prepare and make available the Road Accident Report until it was too late.

Without any evidence to the contrary I would accept as a matter of fact that the applicant was a minor at the relevant times. I would accept that she and her guardian, coming as they say they do from a remote area, could only have a level of sophistication and knowledge as can be reasonably expected of them. It is also a fact that the Road Accident Report was not available up to the time instructions were first received by Messrs Paulus M. Dowa Lawyers on or around 16th February 1998.

The delay in giving notice in the period between the 16th of February 1998 and the 23rd of June 1997 can only lie squarely with the applicant. After the 16/02/98, when the applicant's lawyers began seeking or attempting to seek extension of time from the Insurance Commission, the period of time lapse was outside the control of the applicant, though one may argue that the consequent lapse of time (and the delay which actually is) is the result of the applicant's first delay.

However I would nonetheless think the period of time between the 23/12/97 to 16/02/98 is the real delay for which the applicant ought to show sufficient cause. Of course the Court would have to be satisfied that the resultant delay up to the time of this application has not cause any serious prejudice to the Trust all the same, but the real delay of significance is the falling outside of the six (6) months to 23/12/97 and the further one month and three (3) weeks to 16/02/98. After the 16/02/98 the applicant at least attempted to do whatever she could to enable her to give the requisite notice.

So for the purposes of the application the applicant's reasons for the delay, cause as it were, seem to be two (2) fold. One that she being an ignorant minor from a remote part of the country was not really informed of the requirements of the law. Secondly she places fault on the police for not preparing and having ready for collection the Road Accident Report within time for her purposes of giving notice within time.

Before I proceed to consider the merits or the sufficiency of either of the causes put forward I would state what I perceive to be an inconsistency in the general arguments of the applicant. Incidentally I have always had this view and have referred to it and made mention of it in other cases such as this. I have on occasions, in the course of considering similar such applications, stated what I consider to be a contradiction in term's of the grounds or causes raised: It is either that the applicant fell outside of the statutory six (6) months due to her ignorance of the requirements of pertinent statutory provisions, or because she could not get hold of the Road Accident Report within time. She could not possibly have been an ignorant minor unaware of the requirements of the law, and yet at the same time trying frantically to get hold of the police report which she intended to include in the notice to the respondent Trust. Of course the applicant is entitled to raise arguments based on reasons or grounds or causes which actually caused her to fall outside the time limit, but any such reasons, grounds, or causes must be sufficiently credible at the same time. For instance in this case the applicant's sincerity tends to rub off a bit when one has to accept reality in that the seemingly ignorant minor could not possibly have nonetheless considered it of any significance to obtain the police report "in time". She talks of her guardian, one Pel Tura, trying "in vain to obtain a Road Accident Report within time." The point I make is this. Either the applicant or someone acting for her knew the importance of obtaining a police report, and especially "tried all in vain to obtain (it) within time" or no one knew anything at all out of sheer ignorance. The applicant cannot come to this Court and maintain the accuracy of both assertions without losing credibility and sounding a bit insincere.

I would otherwise normally be satisfied that the applicant, being a minor from a remote area, had the benefit of the quite plausible excuse of being ignorant both as to her rights and the requirements of statute. I should think that view would be only fair and reasonable in the circumstances. Further the applicant on her own lacked the maturity and the competence not only to give the requisite notice but also to do so properly such as to give sufficient notice.

Nevertheless, in all fairness, I must have reservations about the lack of knowledge and the alleged ignorance of the person the applicant refers to as her guardian, Pel Tura. For it is this Pel Tura who allegedly attempted unsuccessfully to obtain the police report within time. For the reasons already given relative to this above, I would conclude that the person Pel Tura would have known the requirements of time limitation and the importance of things like police reports.

However it is another thing as to whether the person Pel Tura thought it important and vital that the police report is also served on the Trust. The state of mind of this person is unknown. He has not given evidence so his reasons for the delay in giving notice to the Trust on behalf of the applicant are not known. On the evidence of the applicant though, I must accept that the person Pel Tura could only have thought it important and necessary to provide the police report to the Trust when giving notice.

I have already concluded that there is otherwise an arguable case disclosed, and that no serious prejudice is manifested against the Trust. I have outlined the personal situation and circumstances of the applicant herself. Further I have concluded that the applicant's guardian, Pel Tura, could only have thought the police report to be part and necessary document for giving proper notice. The guardian's belief would have been a mistaken view but nonetheless an honest view. Even then I would think, in all the circumstances of the case, it would not be altogether fair to hold this apparently honest but mistaken belief against this applicant. I would allow the applicant the orders she seeks in the exercise of my discretion.

However, I must draw out and clarify what I perceive to be a couple of misconceptions in the general submission of both counsel for the applicant and counsel for the respondent Trust.

First of all the applicant's council seems to indulge in the view, as apparent in his submission, that the police report is quite necessary (if not vital) for giving effective notice. With due respect that is not altogether true. Section 54 (6) of the Act only merely requires potential claimants to give notice to the Trust within six (6) months. It is not a requirement of that provision to give or serve a copy of the police accident report to the Trust as well. Of course it equates with practice to read the word notice, to read 'sufficient notice', into the provision. But sufficient or adequate or proper notice does not necessarily mean the police accident report ought to be and must be provided to the Trust. It would suffice if sufficient and or adequate details are disclosed to the Trust, details sufficient to put the Trust on notice, and if it decides so, for the Trust to conduct its own investigations. The Police Accident Report and indeed the Medical Report could be provided later as soon as these become available. There seems to be a case in point though I have not been able to have the benefit of reading it. Julie Yapole v M.V.I.T. (1998 Unreported Judgment of Kapi, DCJ).

The end result of this is that an argument based on the unavailability of a pertinent police report may not always amount to sufficient cause. For instance in a case where a possible claimant who may just happen to live in a urban area, having easy access to legal services, who has no other plausible excuses for delay other than non availability of a police accident report at the relevant times, such an applicant would find he or she has a harder case to make out. In the instant case if it was not for the peculiar circumstances of the applicant and her guardian the non availability of the police report on its own, may not have sufficed as sufficient cause.

Secondly, the respondent Trust seems to be contending through its lawyers and its Claims Manager "that the fact and practice of seeking compensation from the Trust is an act prevalent or common in the Highlands. This therefore cannot be a good excuse where the practice is now embodied in customs and is the general practice in the Highlands." (See affidavit of R. Doko sworn 04/05/99). From this I gather the Court is asked to accept and give due recognition to a "custom" and "practice". Surely there must be a better and or more appropriate way of introducing into Court evidence of customs or practices. I wish not to debate and discuss the wheres and hows of it, however I wonder if it would not be inappropriate, especially if it would be in the interest of the respondent Trust in the long run, to facilitate and sponsor a Supreme Court Reference to ascertain the validity of the Trust's assertion as to this custom or practice, through a appropriate authority. For the time being the assertion, for that is what it is, is one such I am not prepared to give evidence to and uphold.

In the end result I would exercise my discretion in favour of the applicant. The applicant shall have a period of 21 days from today, 29th June 1999, for her purposes. She shall have her costs as well.

Paulus M. Dowa: The Applicant
Nii & Mirupasi Lawyers: The Defendant