[1998] PNGLR 261

PAPUA NEW GUINEA

[national court of justice]

SAM AUTHUR

v

MOTOR VEHICLES INSURANCE (PNG) TRUST

goroka: sawong j
12 August and 4 September 1998

PRACTICE AND PROCEDURE - Notice of intention to make a claim to Motor Vehicles Insurance (PNG) Trust - Application for extension of time - "sufficient case" - Within discretion of court - Motor vehicle (Third Party Insurance) Act Ch 295 s 54(6).

Facts

The applicant was injured on 1st October 1993 in an accident when the PMV in which he was a passenger collided with another vehicle. He now applies for an extension of time within which to give notice of his intention to make a claim to the Motor Vehicles Insurance (PNG) Trust pursuant to s 54(6) of the Motor Vehicles (Third Party Insurance) Act Ch 295 ("the Act"). The time limitation for the giving of such a notice was 6 months from the date of the accident.

Held

1.	The giving of notice of intention to make a claim against the Trust must be made within 6 months from the date of the accident.

2.	Section 54 (6) of the Act requires that sufficient cause must be shown before an extension of time may be granted.

3.	The principles governing the exercises of discretion to extend time are set out: Rundle v MVIT [1988] PNGLR 20 followed.

Counsel

B Tabai, for plaintiff.
M Titus, for defendant.

4 September 1998

Sawong j. This is an application by the applicant, made pursuant to s 54(6) of Motor Vehicle (Third Party Insurance) Act (Ch. No. 295), for an order extending the time in which to give notice of intention to make a claim for damages for personal injuries against the Motor Vehicles Insurance (PNG) Trust.

The plaintiff was a passenger in PMV vehicle, registration P.1430, which had an accident with another PMV bus, registration No.P. 1500. The accident occurred on 1st October 1993. The plaintiff was injured in the accident. It is alleged the driver of the PMV he was travelling in was negligent.

The applicant instructed his lawyers to act for him in this matter on 4 September 1996. The said lawyers made an application for extension of time to the Insurance Commission on 27 September 1997. The Commissioner refused the application by letter dated 13 October 1997.

The law is quite settled that no claim can be made against the Trust unless notice has been given. It is also settled that where the Insurance Commissioner refuses to grant an extension of time, an applicant may then apply to the National Court to get the extension. These issues were decided in Rundle v MVIT [1988] PNGLR 20, which also sets out the principles governing the exercise of discretion to extend time. This discretionary power must be exercised according to proper principles and taking into account all the circumstance of the case. The applicant bears the onus of establishing "sufficient cause". This term is to be widely interpreted, as it deals with the justice of the case within the context of each case, in including the consideration of any prejudice that may have been caused to the defendant by the delay (see Iria v MVIT [1995] PNGLR 183, Rundle v MVIT [1980] PNGLR 20).

In his evidence the applicant gives an account of where he comes from and how the accident occurred. He said that at the time of the accident he was sitting in the front left hand side of the vehicle near the driver. He said that in the accident he received cuts on his head, face and eye, and that he was left unconscious. He was taken to the hospital where he was treated and was then discharged on the same night of the accident. He then gives evidence of him be readmitted into the hospital on 29 April 1996, and subsequent periods of admissions into various hospital. His principle reason for not giving notice within the prescribed statutory time limitation was that he was unaware of his rights to make a claim against the Trust up until August 1997.

Mr Titus has objected to the application. He raised principally two grounds. The first is that the applicants name is not stated in either the police road accident report or in the report by the driver of vehicle P. 1430, to show or indicate that he was a passenger in that vehicle and that he indeed received injuries in the said accident. The second ground was that the medical reports attached to the applicants’ affidavits refer to the applicant having a cataract in his left eye, which was operated on and removed. It was submitted that there has been considerable delay and which delay has prejudiced the defendant in defending any proceedings.

I accept the submission made by Mr Titus. The applicant has offered no explanation as to why it took him so long to lodge a claim. The applicant for the delay has given no explanation. The accident occurred on 1 October 1993, and he has given no explanation as to why he did not do anything up until 29 April 1996 when he went to the hospital. In other words, the applicant has not offered any explanation for not lodging his claim during that period. The vague and generalised statement that he was not aware of his rights to make a claim against the trust cannot be accepted without more.

Further more, his name does not even appear in either the police accident report or the report provided for by the driver.

In these circumstances, I come to conclusion that the applicant has not discharged the onus on him. He has not established sufficient cause to warrant the exercise of discretion in his favour.

It follows that the application is refused. In the circumstances I make no order as to costs.

Lawyers for the applicant: Pryke & Co.
Lawyers for the respondent: Young & Williams.