N1169

PAPUA NEW GUINEA
[In the National Court of Justice]

WS 4 OF 1991

JAMES DICK

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen: Woods J.
19 July & 17 August 1993

Limitation of Actions - Notice of Intended Action - personal injuries - motor vehicle accident - Notice to Motor vehicles Insurance (PNG) Trust - application fro extension of time - discretion of court - exercise of discretion.

CASES CITED:

The following case is cited in this judgement:
Rundle v M.V.I.T. [1988-89] PNGLR 20

P Kopunye for the Applicant
A Kandakasi for the Respondent

17 August 1993

WOODS J. This is an application to dismiss the proceedings on the basis that the Plaintiff has not complied with the requirements for notice under S.54 (6) (b) of the Motor Vehicles (Third Party Insurance) Act Ch 295.

The Plaintiff alleges that he was injured in a motor vehicle accident which occurred on the Hagen-Mendi road on 15 November 1987. There was some delay before he consulted a lawyer and by then the 6 months time limit under the Act had expired. However his lawyer did on the 13 October write to the Insurance Commissioner for an extension of time in which to give notice under the Act. A copy of this application together with relevant documents to support the claim were also forwarded to the Claims Manager of the Motor Vehicles Insurance Trust. On 9th November 1988 the Insurance Commissioner wrote to the lawyer granting an extension of 28 days from the date of the letter in which to give notice of the intention to make a claim. In the meantime the Trust had already replied to the other correspondence denying liability.

However the lawyer did not comply with the requirements of the extension of time, no notice of claim was made to the Trust within the 28 days from the 9th November 1988. In due course in January 1991 the lawyers filed a writ on behalf of the Plaintiff. It is this writ the defendant is now seeking to have dismissed.

As a further confusion it appears that someone else on behalf of the plaintiff sought a separate extension of time from the Insurance Commissioner and thus a second extension was granted in February 1990 however it would appear that no notice of intention to make a claim was forwarded within the time of that second extension. 

Whilst the plaintiff is not denying that no separate notice or communication was made to the defendant within the period of 28 days from the 9th November 1988 the plaintiff is submitting that the letter of 13 October be deemed to be sufficient notice and compliance, the authority of the 9th November retrospectively validating the letter of 13 October. Further by in October 1988 denying liability it is estopped from denying receipt and acceptance of notice of the claim. 

An exactly similar situation was dealt with by this court in the case Kaisa Pupu v M.V.I.T. in March 1993. The letter to the Trust dated before the extension was granted is a nullity, it is clearly outside the time required and was clearly denied by the defendant. So how can it then at a later time be revived and have effect. The approval of the Insurance Commissioner makes no reference to validating an earlier invalid notice. It clearly allows for notice of a claim to be made within a certain period and no separate notice was made within that period.

The full construction of S.54 of the Act was discussed in the case Rundle v M.V.I.T. [1988-89] PNGLR 20 and the Supreme Court emphasised that on a proper construction of S. 54 (1) Notice of Intention to make a claim is mandatory. Note the words of Amet J. at P. 30 "one can imagine that an applicant who was granted an extension but through neglect failed to give notice within the extended time would have a much harder row to hoe than an applicant who is applying to the court for the first time or who had been refused an extension by the Commissioner" The words "give notice within the extended time" clearly note that such notice must be given within that time allowed and it does not suggest an earlier void notice can be reinstated. As Amet J noted on p31 where the prior invalid notice to the Trust was an actual writ "any approval could not validate the writ as notice". 

The law is quite clear and has been clearly explained in Rundle's case. The Plaintiff has failed to comply with the condition precedent to his action against the defendant and therefore can have no cause of action against the Defendant.

I order that the proceedings herein are dismissed with costs.