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Application of Miawe Andakundi [1992] PGNC 27; N1087 (22 July 1992)

Unreported National Court Decisions

N1087

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 41 OF 1992
IN THE MATTER OF S. 54 (6) OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT CH 295
THE APPLICATION OF MIAWE ANDAKUNDI

Mount Hagen

Woods J
10 July 1992
22 July 1992

LIMITATION OF ACTIONS - Notice of intended action - personal injuries - motor vehicle accident - notice to Motor Vehicles Insurance (PNG) Trust - application for extension of time - claim by PMV driver - obligation of PMV driver following accident - application refused.

Cases Cited

Rundle v M.V.I.T. [1988] PNGLR 20

Application of Sir Kepa Pupu 1992 Unreported N1077

Counsel

D. Poka, for the Applicant

A. Kandakasi, for the Respondent

22 July 1992

WOODS J: This is an application for an extension of time under s.54 (6) (b) of the Motor Vehicles (Third Party Insurance) Act Ch 295 to give notice of intention to make a claim to the motor vehicles Insurance (PNG) Trust.

s.54 (6) states:

No action to enforce any claims under this section lies against the Trust unless notice of Intention to make a claim is given by the claimant to the Trust 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.

The applicant states he was driving a PMV a Mazda Bus registered No P7883 on the afternoon of 18 August 1990 along the Muglamp - Ambra road out of Mount Hagen and collided with a vehicle coming from the opposite direction. He states he was injured in the accident and attended the Mount Hagen General Hospital 4 weeks after the accident. He alleges the accident was caused by the driver of the other vehicle and now seeks to claim damages from the Motor Vehicles Insurance (PNG) Trust. However he did not give notice of any intended action to make a claim within the 6 months required under s.54 referred to above. He states he gave instructions to a lawyer in April 1991 who applied to the Insurance Commissioner for an extension of time however the request was refused. In April 1992 he made this application to the Court. The law is quite clear that no claim can be made against the Trust unless notice has been given. And the Parliament having considered all matters relevant has legislated that an original action by a notice must be made within 6 months of the incident. Parliament has accordingly considered that any person in this country would take immediate action to press for compensation following receiving personal injuries fairly soon after an accident and six months would be an appropriate limiting period. Perhaps this would be appropriate considering the propensity for people to be quick to claim damages for any alleged wrong. Such a limitation also allows the Trust to quickly ascertain the history or facts necessary for the proper consideration of the claim before the so-called trail runs cold or while it is still possible to contact people involved whilst their memory of the incident may still be fresh.

The section requires that sufficient cause must be shown before an extension of time is given. The Supreme Court in Rundle v M.V.I.T. [1988] PNGLR 20 said that the power of a court under s.54 (6) to grant an extension of time in which to give notice of intention to make a claim is a discretionary one to be exercised according to proper principles and taking into account all the circumstances of the case.

In the Application of Sir Kepa Pupu (1992) Unreported N1077 I considered that the reasons given in the request were not such that I should grant an extension of time as I felt that it was unusual for a man who was clearly struck by a vehicle not to have taken any action to seek compensation or seek out the owner of the vehicle before he did and it was surprising that there was no evidence of anyone showing any concern for 10 months.

So what are the circumstances of this case. The applicant refers to the length of time it took for him to get a copy of the Police Accident Report and that as a layman he did not know the legal requirements of making a claim against the Trust. However he does not say when he actually received a copy of the Accident Report and I note that in December 1990 that is 4 months after the accident he was charged in the District Court with a driving offence consequent upon the accident and he was found not guilty so he must have had knowledge of the Police Report at that time.

However more importantly the applicant is not just an ordinary layman or villager who does not understand matters, he was the driver of the PMV. Under the law drivers of PMVs have additional obligations, they have to have special tests to get a PMV driver’s licence and they are obliged to know their full legal obligations. And these obligations include the obligations under s.53 of the Motor Vehicles (Third Party Insurance) Act which is headed “Duties of owner and driver”. These duties include the duty to report accidents to the police and the Trust where death or bodily injury to a person is caused by a motor vehicle. The Police Accident Report clearly shows that there were other persons injured in the accident apart from the applicant. There is no evidence that the owner or the applicant as driver did make any such report. In his evidence the applicant refers to the policeman interviewing him in the hospital yet the applicant did not go to hospital till 4 weeks after the accident. So whether the driver was injured or not there is a responsibility under the legislation for him to either report himself to the trust the circumstances of the accident or ensure that his owner does so. So having failed in his legal obligations how can he ask the Court to exercise its discretion in his favour almost 2 years after the event.

I find that I have not been given any good reasons why the applicant should be granted an extension of time. I dismiss the application.

Lawyer for the Applicant: Kopunye Lawyers

Lawyer for the Respondent: Young & Williams