Unreported National Court Decisions
N1603
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 223 OF 1997
BIPA AKOPA - PLAINTIFF
V
MOTOR VEHICLES INSURANCE (PNG) TRUST - DEFENDANT
Goroka
Sawong J
8 August 1997
INSURANCE - Personal injury - Limitation of Action - Notice of Intention to claim - Motor Vehicle accident - Notice to Motor Vehicles Insurance (PNG) Trust - Application for Extension of Time - Discretion of Court - Exercise of Discretion.
Cases Cited
Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20
Pupu v Motor Vehicles Insurance (PNG) Trust [1993] unreported
Counsel
B Tabai for the Plaintiff/Applicant
R Thompson for the Respondent
8 August 1997
SAWONG J:  This was an application by the Plaintiff to be granted an extension of time with which to give Notice of his intention to make a claim against the Trust.  Upon hearing submissions from counsels on 8th August 1997, I dismissed the application.  I said then that I would publish my reasons.  This I now do.
The Plaintiff alleges that he was injured in a motor vehicle  accident  which occurred near Mando village along the Okuk Highway.  It is alleged that prior to the accident, she was travelling as a passenger on a vehicle bearing registered number AEV 327.
The evidence in support of her application is contained in the affidavits of Tom Sikali and the annexures attached thereto, including a Statutory Declaration filed by the applicant.
In the Statutory Declaration, the applicant says that after the accident, in September 1992, he was introduced to a Peter Kia who claimed that he had helped other passengers to make a claim.  The applicant paid him K100.00 and gave him the details of the accident.  He did not follow up his claim with Kia, and after some years, he met up with Kia, and enquired about his claim, only to be told by Kia that his file was with the firm of Pryke & Co, Lawyers.
Pryke & Co Lawyers received instructions on or about 5 February 1997 and immediately wrote to the Insurance Commissioner seeking an extension of time within which to give Notice of Intention to make a claim against the Trust.  The Commissioner, in the exercise of his discretion refused to grant the extension.
It is not clear from the Statutory Declaration as to when the applicant saw Peter Kia on the second occasion.  The Applicant has not filed any affidavit, nor has Peter Kia.
Mr Tabai has quite correctly submitted that an applicant in such a case as the present one, must show sufficient cause to the Court to exercise its discretion in favour of the applicant.  He submitted that in the present case, on the material before the Court, the applicant has shown sufficient causes.  The first he says, is that the Plaintiff had taken steps to make a claim to the Trust, in that he had given “instruction” to Peter Kia, but Peter Kia had misled him and did not make a claim on his behalf within the prescribed time limitation.
Secondly, it has been submitted that he is an ordinary villager who has no knowledge about the procedures of lodging claims with the Trust.  Coupled with this and his “instructions” to Peter Kia, it would in the circumstances show that he did take steps to make a claim.
Ms Thompson submits that sufficient cause means that the applicant must give reasonable explanation for the delay, the application for extension for time must be made promptly and the Trust must not be unduly prejudiced.
She submits that looking at the evidence filed so far, there is no direct evidence by the Plaintiff that he had offered any reasonable explanation for the delay.  According to the Statutory Declaration, the accident occurred in 1992, and the applicant has waited for five (5) years before approaching lawyers to act for him.  There is no explanation given by the applicant as to why he waited so long.
She submits that the applicant has not offered any reasonable explanation for the delay, nor has he produced any corroborative documentary evidence such as a Police Accident Report, or Medical Reports.
She further submitted that as more than five (5) years have lapsed, the Trust would severally prejudiced in its endeavours to investigate the claim.  In the circumstance, she submits that the applicant has not proved that he has shown sufficient cause.
The law is quite clear in this area of the law.  The leading authority is Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20.  These principles has been followed and applied in numerous cases involving similar applications in the National Court, for eg. Pupa v MVIT.
In my judgement, the Plaintiff has given no reasonable explanation for the delays.  The evidence is that he was introduced to a Peter Kia, who said he would help him to make his claim.  That was in September 1992.  There has been no explanation from the Plaintiff as to whether he followed up with Kia his claim between September 1992 and the second time he saw Kia.  It can be inferred that even in September 
1992, that, even though he was an uneducated villager, he was aware of the need to make a claim for compensation.
The evidence does not show when he saw Kia the second time, but it would, in view be safer to infer that he may have seen him on or before 5 February 1997, because on 5 February he saw and gave instructions to Tom Sikali, a clerk in the employee of his lawyers.
Secondly, I accept the submission by Ms Thompson that because of the undue delay, the Trust will be severally prejudiced if an extension is granted.
It will be prejudiced because it would be difficult for the Trust to investigate the matter, obtain statements from the driver and any other witnesses.
In those circumstances, I am not satisfied that the applicant has not proved that the Court ought to exercise its discretion in his favour.
Consequently, the application is dismissed.  Each party is to meet its own costs.
Lawyers for the Applicant: Pryke & Co
Lawyers for the Defendant: Young & Williams