N1357

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 273 OF 1995

MICHAEL IVIA

v.

MVIT

Waigani: Kapi, DCJ
7 & 14 July 1995

Practice - Notice of action - Extension of time for - Personal injuries - Motor vehicle accident - Damages claim - Notice to Motor Vehicle Insurance (PNG) Trust - Application for extension of time - Extension within the disertion of Court - Exercise of direction - Motor Vehicles (Third Party Insurance) Act (ch 295), s 54 (6).

Mr J Nanei for the Plaintiff
Mr V Mirupasi for the Defendant

14 July 1995

KAPI DCJ: This is an application by the Plaintiff made pursuant to s 54 (6) of Motor Vehicles (Third Party Insurance) Act (ch 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 Vehicle Insurance (PNG) Trust.

The plaintiff was a passenger in a PMV vehicle registration No. P533A which had an accident with a Mazda truck registration no ZPT 448 owned by Post and Telecommunications. The accident took place on 23 March 1993. The plaintiff was injured as a result of the accident. It is alleged that the driver of Mazda, registration no ZPT 448 was negligent.

The plaintiff instructed his lawyers to act in the matter on 5 August 1993. On the same day, the lawyers wrote to Post and Telecommunication giving notice of intention to make a claim. This was done on the basis of a view taken by the lawyer that the Post & Telecommunication was a Government Corporation and therefore self-insured and not insured by the Defendant.

This matter was further clarified by the lawyer in 1995 when he established that Post & Telecommunications vehicles are insured by the Defendant. In a letter dated 18/4/93 the lawyer then wrote to the Insurance Commissioner seeking extension of time in which to give notice of intention to make a claim pursuant to s 54 (6) (a) of Motor Vehicles (Third Party Insurance) Act. The Insurance Commissioner refused to extend time in a letter dated 25 April 1995.

Where the Insurance Commissioner refuses to grant an extension of time, an applicant may then apply to the National Court to get the extension. This issue was decided in Rundle v. Motor Vehicles Act (PNG) Trust [1988] PNGLR 20.

The principles governing the exercise of discretion to extend time are set out in Rundle v. Motor Vehicle Insurance (PNG) Trust (supra). The onus is on the plaintiff to establish "sufficient cause". This expression is to be widely interpreted. It deals with the justice of the case within the context of each case. This include consideration of any prejudice that may have been caused to the defendant by the delay.

In this case the plaintiff through his agent gave instructions to the lawyer within the 6 months period. The lawyer also took appropriate action to give notice of claim immediately. Unfortunately, the lawyer gave notice to the wrong party.

I conclude that the lawyer in this case made an honest and a reasonable mistake in coming to the conclusion that the PTC vehicles were self-insured as is the case with other government vehicles. I would accept this as a reasonable explanation for allowing the period of 6 months to expire.

The next question is whether a period of 2 years 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 can it be said that the 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 driver of the vehicle, it would be extremely difficult for anyone in these circumstances to find such a person and obtain instructions. If there are details given in a report then the defendant would be able to investigate the circumstances of the accident. In this particular case, the details of the driver of the PTC vehicle is provided. PTC have also been notified of the accident and they may well have an accident report. It may well be that the driver of the vehicle may well remember the details of the accident.

The Claims Manager for the Defendant has deposed in an affidavit that where there is a long delay it is difficult to investigate and clarify accidents. That is a general statement which cannot explain the situation in this case. It is not possible to conclude in the circumstances that the defendant has been prejudiced in the case.

In balancing all these considerations I have reached the conclusion that sufficient cause has been shown and therefore I would exercise my discretion to extend time in which to give notice to the Defendant.

Plaintiff to give notice of intention to make a claim within 14 days.

-----------------------------------------

LAWYERS FOR THE PLAINTIFF: NANEI & COMPANY
LAWYERS FOR THE DEFENDANT: YOUNG & WILLIAMS