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Nul v Motor Vehicles Insurance (PNG) Trust [1998] PGNC 118; N1831 (4 December 1998)

Unreported National Court Decisions

N1831

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 210 OF 1998
BETWEEN:
ROVINA NUL
- APPLICANT -
AND:
MOTOR VEHICLES INSURANCE (PNG) TRUST
- RESPONDENT -

Goroka

Sawong J
21 August 1998
4 December 1998

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

4 December 1998

SAWONG J: This is an cation by the pthe plae plaintiff made pursuant to s. 54(6) of the 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 Vehicles Insurance (PNG) Trust.

The circumstances giving rise to the claim are as follows. On the day of the accident the plaintiff was a pedestrian walking along the side of the Okuk Highway and at Zokozoi, she was hit by a vehicle registered no. P1510. The vehicle was driven e mthe material time by Tango Maka. At that time she was with one of her child. The child dartross the roae road and she ran after the said child to try and get the child of the ro160; t was at that poit point in time, the said vehicle hit her and knocked her over. The The accident oed on 2 on 29 April 1995. The piff was injured as a as a result of the accident. It is alleged the driver over of the vehicle was negligent.

laintnstructed her lawyers on 21 January 1997. O60; On 22 January 1997, the said lawyers wers wrote to the Insurance Commissioner se an extension of time in whin which to give notice of intention to make a claim pursuant to s. 54(6)(a) of Motor Vehicles (Third Parturance) Act. The Insu Insuranceissionerioner refused to extend time in a letter dated 25 February 1997.

It is settled law that 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 wasded in Rundle vdle v MVIT [1988] PNGLR 20. That case alss out the prie principles governing the exercise of discretion to extend time. The plaintiff behe onus ofus of establishing “sufficient cause”0; This expression ought to be interpreted widely, because ause it deals with the justice of the case within the circumstances of eace. This would also inso include the consideration of any prejudice that may have been caused to the defendant by any delay.

In the present case, the plaintiff has given three reasons for the delay. The first is thatdoes not not know the procedure of making a claim against the Trust. She also says that she wa not aware that she was required by law to give notice of tion to make a claim to the Trust within six months from thom the date of the accident. Secondly she that she had had to wait he police road accident rept report to be completed. Finally she sayt because ouse of financial difficulties, she was unable toruct lawyers to proceed with this application before the cohe court.

The defendant relies on the affidavit of its Claims Managr Doko. Mr Doko Doko says fiattly stly there was a delay of three years from the date of the accident to the filing of the proceedings. This delay was unrease ande and a long one.

He further states the police accident report was prepared in July 1997. This is not quite correct0 The applicant says in her evidence that soon after she was injured and whilst she was in the hospital a police traffic officer went to the hospital and interviewed her and obtained details of the accident. Secondly aid r was not comt compiledpiled in July 1997. The reviewing officerewed ewed the report on or about 13 January 1997 (see back port).

Essentially the defendant’s argument is that because of the long delay,elay, it would be prejudiced in its defenc the driver would not be cobe contacted easily.

The issue is whether, in the circumstances of this case, a period of three years and one month (that is from date of accident to date of filing of proceedings) is so long as to cause prejudice to the defendant in defending the matter. In considering this issue, I adopt what Kapi DCJ said in Ivia v MVIT [1995] PNGLR 183, at 185;

“It is not possible to determine precisely at what period in time it can be said that the defendant would ejudiced. That, of coof course ways ways a question of fact. Fample if no police reporteport 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 instructi#160; If there are details ails given in a report, then the defendant would be able to investigate the circumstances of the accident.”

I do not accept the submissions raised by the defendant. It is a large corpon with with all its resources to conduct enquires and locate the driver. In any case it now ha deta details of the driver, the vehicle involved and namesitnesses.

In the present case, I accept the explanatlanations given by the applicant. The dels not caused solelyolely byapplicant. There were were a number cf factors which contributed to the delay.

In the presese thee the defendant copy of the accident report which contains the details of s of driver. Ttails of the driver are aare available. The bold asse that the r mver might not be located or is presumed dead iead is a generalised statement, unsupported by any evidence.

Conseqy, I ude that it is nois not possible to say that, in the circumstances of this case, the defendefendant is or would be prejudiced.

In all the circumstances, I have concluded that sufficient cause has been shown and, therefore, I would exercise my discretion to extend time in which to give notice to the defendant.

The plaintiff is to give notice of intention to make a claim within 14 days.

Lawyers for the Plaintiff: Pryke & Co.

Lawyers for the Respondent: Nii & Mirupasi