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Nauka v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 156; N1680 (5 December 1997)

Unreported National Court Decisions

N1680

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O. S. NO. 342 OF 1997
DICK NAUKA
PLAINTIFF
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT

Goroka

Sawong J
5 December 1997

PRACTICE AND PROCEDURE - Notice of Intention to make a claim to Motor Vehicles Insurance (PNG) Trust - Application for extension of time - Sufficient cause - Discretion of Court - Motor Vehicles (Third Party Insurance) Act Ch. 295, S 54(6)(a).

Cases Cited

Rundle v MVIT [1988] PNGLR 20

IVIA v MVIT [1995] PNGLR 183

Counsel

B. Tabai, for the Plaintiff

V. Mirupasi, for the Defendant

5 December 1997

SAWONG J: This is an application by the plaintiff, made pursuant to S 54 (6)(a) of the Motor Vehicles (Third Party Insurance) Act Ch. 295, for an order extending the time within which to give notice of an intention to make a claim for damages for personal injuries against the Motor Vehicles Insurance (PNG) Trust.

The plaintiff was a passenger travelling in a motor vehicle bearing registration no. EAA 717 and was driven by Benny Haveo, at the time of the accident. The accident took place on 12 April 1995, along the Okapa road, in the Eastern Highlands Province. The driver is alleged to be negligent in causing the accident because he lost control of the vehicle and it overturned. The plaintiff suffered injuries in the accident.

The plaintiff instructed his lawyers to pursue the matter sometime in May 1996. On 12 August 1996, the lawyers wrote to the Insurance Commissioner seeking his approval for an extension of time within which to give notice of intension to make a claim. On 26 August 1996, the Commissioner refused the application, on the basis that the applicant’s name did not appear on the police accident report which was submitted with the application. I note that in that letter to the Insurance Commissioner, the application was made in respect of a person called “Nick Yaika”. The present application before the court is in respect of a claimant called “Dick Nauka”.

The police report of 1st August 1996 (annexure ‘B’ to G. Waenawi’s affidavit) also refers to a person called “Nick Nauka”, where as the police accident report states the name “Dick Nauka”.

There is no evidence from the plaintiff that he is in fact the one and same person referred to as “Nick Yaika” or “Dick Nauka”. It is not clear whether these two names refer to the same or different persons.

It is trite law that when the Insurance Commissioner refuses to grant an extension, the plaintiff may apply to the National Court to obtain the extension. The National Court has a discretionary power whether to grant or refuse the extension. The principles governing the exercise of that discretion to extend time are set out in Rundle v MVIT [1988] PNGLR 20, which principles have been followed and applied in many subsequent cases.

The plaintiff bears the onus of establishing “sufficient cause”. What is “sufficient cause” will depend on the reasons and explanation put forward by the plaintiff as to why he did not lodge his claim within the prescribed period, and why he allowed time to lapse. What is sufficient cause, would mean that each application must be considered on its own fact and merit. Thus the expression must be interpreted widely rather than narrowly. Of course one has to consider the justice of the case and would include a consideration of any prejudice that may or might be caused to the defendant by the delay.

In this case the plaintiff, gave his instructions to his lawyers sometime in May 1996. On the material before the court, the lawyers did little until 12 August 1996, when they wrote to the Insurance Commissioner. There is no explanation from the plaintiff’s lawyers as to why they did not write to Commissioner earlier than 12 August 1996. There is no explanation at all. Presumably it was because of the difference of dates on the police accident report and the medical report. In other words, they were trying to confirm the correct date of the accident.

In his affidavit, the plaintiff says that the delay was due to two principle reasons. The first was that he was not aware of his right to claim compensation for the injuries he sustained nor the requirement of the law to give notice of his intention to make a claim within 6 months of the date of the accident. The second is that he was seeking financial assistance to pay his lawyers fees.

As I have said earlier the plaintiff’s lawyers have offered no explanation as to why they did not lodge his application to Insurance Commissioner promptly. Perhaps it was because they may not have been paid their fees.

The accident happened on 12 April 1995. He did not do anything about his claim. He was informed in November 1995 of his right to make a claim. He then waited till May 1996 to see his lawyers to make a claim. His lawyers did not make any application to Commissioner promptly. It appears to me that this was due to two reasons, which I have alluded to earlier. But those explanations do not establish sufficient cause.

In my view there is a real possibility that the defendant may be prejudiced, in its investigations into the matter. Coupled with this is the point which I raised earlier regarding the name of the plaintiff. Although this point was not argued, nevertheless it is a matter which I consider I should take note of as a matter going to the exercise of the courts discretion.

In the circumstances, I am not satisfied with the explanations given by either the plaintiff or his lawyers. I would refuse application. The application is refused and the proceedings are dismissed.

In the circumstances, I make no order as to costs.

Lawyers for the applicant: Pryke & Co.

Lawyers for the respondent: Nii & Mirupasi