Unreported National Court Decisions
N1758
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 266 OF 1998
BETWEEN:
JUDY YOPOLE
PLAINTIFF
AND:
MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT
Waigani
Kapi DCJ
7 September 1998
18 September 1998
PRACTICE AND PROCEDURE - Notice of intention to make a claim (enclosing extension by Insurance Commissioner) - Personal Injuries - Motor Vehicles (Third Party Insurance) Act (Cap. 295), s 54 (6) 
Counsel
Mr Kama for the plaintiff
Mr Poro for the defendant
18 September 1998
KAPI DCJ: The plaintiff has filed a motion seeking the following orders:
1.       An order that the defendant’s decision to reject the plaintiff’s claim against the defendant be set aside.
2.       An order that the plaintiff’s claim against the defendant be re-instated.
3.       Alternatively, an order that leave be granted to the plaintiff to file a new claim.
This application has arisen out of the following facts. The plaintiff was injured in a motor vehicle accident on the 7th December 1994. The plaintiff engaged the services of Ray Vaea Lawyers to act on her behalf to make a claim against the defendant. By the time Ray Vaea Lawyers received instructions to act in the matter, time in which to give notice of intention to make a claim against the defendant under s 54 of Motor Vehicles (Third Party Insurance) Act (Cap. 295) had expired. Ray Vaea Lawyers then made an application to the Insurance Commissioner for extension of time in which to file a notice of claim against the defendant under s 54 (6) of the Act. In a letter dated 26th August 1996 the Insurance Commissioner extended time in the following terms:
“Reference is made to your letter of 9th July, seeking extension of time within which to file notice of claim.
Pursuant to section 54 (6) of the Motor Vehicles (Third Party Insurance) Act Chapter 295, approval to proceed with a claim within twenty eight days from the date of this letter is hereby granted.”
In a letter dated 2nd September 1996, Ray Vaea Lawyers then wrote to the defendant in the following terms:
“We enclose a copy of a letter dated 26th August, 1996 from the Insurance Commissioner, which is self-explanatory.
We will provide you the details of our clients claim in the near future.”
There is no record of any direct response to this letter by the defendant.
Ray Vaea Lawyers ceased to act for the plaintiff sometime in October 1996. Patterson Lawyers commenced to act for the plaintiff in March 1997. In a letter dated 14th April 1997 Patterson Lawyers wrote to the defendant advising that they now act for the plaintiff in the matter. This letter gave details of the date of the accident, location of the accident, the details of the motor vehicle involved and the details of the owner of the vehicle.
The defendant in their letter dated 6th June 1997 acknowledged the letter sent by Patterson Lawyers and requested a Police Accident Report. Patterson Lawyers in their letter dated 30th June 1997 enclosed a Road Accident Report as well as a Medical Report of the plaintiff’s injuries. By a letter dated 1st December 1997 the defendant replied in the following terms:
“We refer to your letter dated 30 June 1997 and advise that we have no records of receiving any correspondence from Ray Vaea Lawyers after their letter of September 1996.
Your letter of 30 June 1997 was the first detailed advice of the claim, however, as it is out of time we are unable to assist.”
It appears from this correspondence that the defendant does not consider the letter written by Ray Vaea Lawyers dated 2nd September 1996 as constituting notice of intention to make a claim under s 54 of the Act.
This motion has been brought to clarify the situation. Counsel submit that this issue raised by the facts in the present case is yet to be determined by the Courts. This calls for interpretation of s 54 (6) of the Act:
“(6)    No action to enforce any claim under this section lies against the Trust unless notice of intention to make a claim is given by the claimant to the Trust within a period of six months after the occurrence out of which the claim arose, or within such further period as – 
(a)      the Commissioner; or
(b)      the court before which the action is instituted, on sufficient cause being shown, allows.”
Counsel have referred to two decisions which may be relevant to the issue; Stanley Tendi v Motor Vehicles Insurance (PNG) Trust (Unreported judgement of the National Court dated 6th May 1996, N1423) and Jacob Daguma v Motro Vehicle Insurance (PNG) Trust (Unreported judgement of the National Court dated 22nd February 1991 (WS 697 of 1988)). 
In the latter case, Woods J. made some remarks concerning the effect of a letter written by lawyer for a claimant addressed to the Trust merely enclosing the letter of extension of time by the Insurance Commissioner as in the present case. However, the issue did not arise and as Woods J indicated in his reasons for decision it was not necessary to decide the point in that case. The case is therefore not helpful.
The former case raises the issue of what is notice under s 54 (6) of the Act. In that case, Injia J. said:
“There are two requirements under s 54 (6). First, the claimant must give notice of claim to the Trust and second, such notice must be given within 6 months after the occurrence of which the claim arose or within such period as allowed by the Commission of the Courts. In relation to the first of these two requirements, the word ‘notice’ is not defined by the Act. There is also no pro-forma definition of a ‘notice’ prescribed by the Act. At the hearing I asked Counsel for the Trust what the statutory definition of ‘notice’ was and whether oral notice was sufficient under the Act. I put to him the hypothetical case of an old illiterate villager had just sustained an injury in a motor vehicle accident. He turns up at the Trust office, within the six months period, he tells the officers of the Trust that he wants to make a claim for compensation. He gives all the necessary details of the accident as best as he can and goes away. Would that be sufficient notice under s 54 (6)?…..
The above hypothetical case demonstrates the practical difficulties associated with a strict, technical, formalistic and legalistic approach to defining the word ‘notice’. It also shows the wider problem associated with interpreting our modern laws and institution which are intended for universal application to all citizens of our country in all its diversity in ethnicity and cultural and educational background. The bulk of our people are still illiterate and under the influence of traditional customs and values. They are ignorant of the strict and formalistic requirements of our modern laws and the rules of practice procedures which they entail and the institutions which they govern. In interpreting our laws, we must not forget the ordinary people. Laws must be liberally and fairly construed so as to achieve their intended purpose. Strict and legalistic approach to construction of words in a statute are a thing of the past: PLAR No. 1 of 1980 [1908] PNGLR 326, SCR No. 6 of 1984 [1985] PNGLR 31.
In my view, a notice under s 54 (6) should be accorded its ordinary meaning. It means to inform or to make the Trust aware of the claimant’s intention to make claim against it. The form the notice should take may vary depending on the circumstances which include the claimant's level of sophistication, geographical location and whether he is represented by a lawyer or a friend or relative. It may be orally or in writing. Whatever form the notice takes, it should sufficiently set out the relevant particulars of the motor vehicle accident, the nature of the injuries received and medical treatment received, if any, and the claimant’s desire or intention to make a claim.”
I am in general agreement with what Injia J. said in respect of what constitutes notice under s 54 with one exception. Where in a case a claimant has all the relevant details of the motor vehicle accident as well as the details of injuries and any medical treatment to hand, it would be helpful to give those details to the defendant in the notice of intention to make a claim. The essence of a notice is to inform the defendant that the claimant intends to make a claim. The notice of intention is not the claim itself and therefore need not contain the full details of the claim. A claimant may or may not have all the relevant details to support a claim when giving notice of intention to make a claim. If the details are not yet available, these can be provided when they are available.
The question in the present case is whether the defendant was given notice in accordance with s 54 (6) of the Act? Counsel for the plaintiff relies on letter written by Ray Vaea Lawyers dated 2nd September 1996. The letter simply enclosed the extension granted by the Insurance Commissioner within which to file a notice of claim. The letter written by Ray Vaea Lawyers did not expressly say notice is given. However, absence of such words are not essential (see Injia J. in Stanley Tendi v Motor Vehicles Insurance (PNG) Trust (supra)). I find that the letter from the Insurance Commissioner made express reference to extension of time in which to make a claim. The letter written by Ray Vaea Lawyers enclosed the letter from the Insurance Commissioner and indicated that it was self-explanatory. This effectively meant that the Lawyers were giving notice to the defendant that they were giving notice to make a claim within the twenty eight days extension given by the Commissioner. Furthermore the letter made reference to providing the details of claim in the future. In my opinion, the letter constituted notice of intention to make claim against the defendant in all the circumstances. 
I find that the defendant has been given notice in accordance with s 54 (6) of the Act and therefore the parties should proceed with the claim in accordance with the law. The plaintiff is to have the costs of this application.
Lawyers for the Plaintiff: Patterson Lawyers
Lawyers for the Defendant: Nii & Mirupasi