N3407

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 574 OF 2007

LEO PARU
Plaintiff

V

MOTOR VEHICLE INSURANCE LTD
Defendant

Waigani: Paliau, AJ
2008: 27th, 31st March

PRACTICE & PROCEDURE – a Motion seeking leave for extension time for a period of 14 days to lodge Notice of Intention to Claim – Motor Vehicles (Third Party Insurance) Act 1974 (Section 54 (6) – whether sufficient cause shown – whether annexure referred to in Affidavit of Plaintiff/Applicant admissible – whether Plaintiff required to establish prima facie case when applying for extension of time – whether Plaintiff’s failure to promptly notify Defendant will prejudice the Defendant.

Cases cited:

Rundle v Motor Vehicles Insurance (PNG) Trust No. 1 [1988] PNGLR 20
Rovina Nul v MVI (PNG) Trust, N1831, unreported
Revit Mangoi v MVI (PNG) Trust, [1990] PNGLR 327; N876
MVIT v Korowa Pup, SCA No. 26 of 1996
MVIT v Viel Kampu (1998) SC587
Sinowa v MVIT (1992) N980
Kongupi v MVIT (1992) N1043
Salome Gere v MVIT, N1604
Application of Jack Lucas Kuri [1991] PNGLR 448; N1107
Michael Ivia v MVIT [1995] PNGLR 183

Counsel:
D. Dademo, for the Plaintiff/Applicant
M. Pokia, for the Defendant/Respondent

31 March, 2008 

DECISION

1. 	PALIAU, AJ: Introduction: The Plaintiff/Applicant by Notice of Motion dated 3rd September 2007 sought leave to apply for extension of time for a period of 14 days to lodge Notice of Intention to Claim under Section 54 (6) of the Motor Vehicles (Third Party Insurance) Act 1974, having failed to lodge his claim within 6 months and after an extension was granted to lodge within 28 days on 11th December 2006.

Background:

2.	The Plaintiff/Applicant is the father of the deceased Leo Paru Junior who was hit by a motor vehicle on 1st April 2005 at Scratchly Road, Kaugere, National Capital District and died as a result.

3.	The Plaintiff/Applicant failed to give Notice of his Intention to make a claim against the Trust within 6 months of 1st April 2005, the date of the accident. His reasons for delay were based on the following:- 

- 	He was so traumatised and distressed upon his son’s death and 
followed 3 months later on or about 20th July 2005 by his wife’s injury in another vehicle accident.

- 	The wife was admitted at Port Moresby General Hospital (POMGH) on the date of her accident, where he looked after the wife for a period of 3 months from July to October 2005 and finally discharged.

- 	He is an illiterate and ordinary villager and not aware of the statutory time limitation and unaware of his legal rights and requirements to lodge his intention to claim to the Trust within 6 months.

- 	Lack of financial resources to engage a lawyer to pursue his claim.

- 	After the discharge of his wife from the hospital, on or about October 2005, he stayed in the village and was obliged by custom to raise pigs and make gardens to make a feast for his deceased son which feast was done in April 2006. This customary obligation is still thriving in his area.

4.	When he became aware of his right to lodge a claim, it was well past 6 months the statutory time limitation to lodge a claim. In fact it was 9 months after the 6 months statutory time limitation had lapsed that he instructed a Mr Bernard Koae, a lawyer to act on his behalf after Mr Koae advised him to apply to the Insurance Commissioner for an extension of time.

5.	On the 22nd June 2006, the Plaintiff/Applicant through Mr Koae wrote to the Insurance Commissioner requesting an extension of time to give notice of intention to claim. The Plaintiff/Applicant was granted an extension of time by the Insurance Commissioner on 11th December 2006 and for him to lodge his notice of intention to claim within 28 days from 11th December 2006.

6.	The letter of 11th December 2006 was not brought to the attention of the Plaintiff/applicant by Mr Koae or not sighted by him until March 2007, by which time the 28 days notice had lapsed. The Plaintiff/Applicant through Mr Koae again submitted another request for an extension of time but was rejected as it was out of time.

7.	Because of the above rejection, the Plaintiff/Applicant by Notice of Motion sought leave to apply for an extension of time for a period of 14 days for him to lodge notice of intention to claim.

Issues

8.	There are four (4) issues which I consider to be of relevance in the case before me and they are as follows:-

1. Whether in all the circumstances of the case, there is sufficient cause shown by the Plaintiff / Applicant for him to be granted an extension of time to give notice of his intention to claim?

2.	Whether the annexures referred to in the affidavit of the Plaintiff/Applicant should not be admitted as evidence as they are hearsay?

3.	Whether the Plaintiff/Applicant is required to establish a prima facie case when he is applying for an extension of time under section 56 (6) (b) of the Act?

4.	Whether the Plaintiff/Applicant’s failure to promptly notify the Defendant/Respondent of his intention to make a claim against the Defendant/Respondent prejudiced the Defendant/Respondent’s position in relation to the claim by the Plaintiff/Applicant.

The Law

9. The relevant laws are Section 54 (1)(c) and (6)(b) of the Motor Vehicles (Third Party) Insurance Act, and the case law that are cited in the decision.

Application of the law to the facts

ISSUE 1

Whether in all the circumstances of the case, there is sufficient cause shown by the Plaintiff/Applicant for him to be granted an extension of time to give notice of his intention to claim?

10. Section 54 (6)(b) of the Motor Vehicles (Third Party) Insurance Act, 1974 provides as follows:-

"(6) 	No action to enforce any claim under this Section lies against the successor company unless notice of intention to make a claim is given by the claimant to the successor company within a period of the 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"

11.	Before the Notice of Motion was instituted before this Court, extension of time was granted by the Commissioner when he was requested by Mr Koae on behalf of the Plaintiff/Applicant. The Plaintiff/Applicant was required by that extension to lodge notice of intention to claim within 28 days. The Plaintiff/Applicant failed to do so because Mr Koae did not inform him.

12.	When Mr Koae requested for an extension of time, he pointed out the grounds for which the Plaintiff/Applicant was unable to lodge his intention to claim within the six months period required after the occurrence out of which the claim arose.

13.	These grounds or reasons for the delay are that the Plaintiff/Applicant’s son died on the 1st April 2005 and three months later, while still mourning the loss of his son, his wife was injured in a separate motor vehicle accident on 20th July 2005. At this point in time, he was not aware of his right to claim against the Defendant/Respondent. He was not aware of the procedure required for making a claim or the statutory requirements involved. Another 3 months was spent in the Port Moresby General Hospital looking after his wife. He did not have the means to seek assistance of a lawyer to pursue his claim. Being a villager, the Plaintiff/Applicant was obliged to make gardens and raise pigs to make a feast for his deceased son as is the custom in his area, which he gave priority to, until April 2006 when that obligation was fulfilled.

14.	The grounds or reasons for the delay was accepted by the Commissioner and in my view form the basis upon which the Commissioner allowed the extension of time, 9 months after 6 months statutory time limitation. Those grounds or reasons did assist the Commissioner to form the view that the Plaintiff/Applicant had sufficient cause for delay in filing his notice of intention to claim. I cannot see any other considerations to the contrary.

15.	In other words the Plaintiff/Applicant had already established sufficient cause for the delay. The second delay was not caused by the Plaintiff/Applicant. It was caused by a Third Party, who assisted him. He was not informed that he had established sufficient cause and that he must file his notice of intention to claim within the 28 days from 11th December 2006.

16.	 The Plaintiff/Applicant is not required to look for a second lot of grounds or reasons in order to justify or establish sufficient cause. I do not think he was required to do so.

17. In the exercise of the Court’s discretion to grant an extension of time to an applicant under Section 54 (6) (b) of the Motor Vehicles (Third Party) Insurance Act 1974, the Court must exercise its discretion according to proper principles and taking into account all the circumstances of the case. The onus is on the applicant to establish sufficient cause in order for him to be granted extension of time. See the case of Rundle v Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20.

18. In the case of Salome Gene v MVIL, N1604, the court said that in order for an applicant for an extension of time to be granted his wish, he must provide a reasonable explanation as to why he did not give the notice of his intention to claim within six (6) months.

19. In the case of MVIL v Korowa Pup, SCA No. 26 of 1996, the court when considering whether or not the trial Judge fell into error when finding that sufficient cause had been shown said that; 

"We find that the trial Judge was in a better position than the Supreme Court to make the finding that "sufficient cause" had been shown. We have found that the documents in the first ground of appeal were properly admitted into evidence and therefore on that evidence the trial Judge found sufficient cause had been shown. We do not find the trial Judge fell in to error."

20. I will be discussing the admissibility of documents that were annexed to the Affidavit of the Plaintiff/Applicant when I deal with that issue later.

21. For the time being as I have discussed earlier, the grounds or reasons for the delay as pointed out in paragraph two (2), was accepted by the Insurance Commissioner and form the basis of the Commissioner’s decision to allow an extension of time, nine(9) months after the six (6) months statutory time limitation. These grounds or reasons assisted the Commissioner to form the opinion that the Plaintiff/Applicant had sufficient cause for the delay in compiling his notice of intention to claim, thus granting an extension of time upon which to submit within 28 days.

22. The Plaintiff/Applicant had already established sufficient cause for the delay. The second delay after the 28 days had lapsed was not caused by the Plaintiff/Applicant. It was caused by the person who was entrusted to assist him. I do not think the Plaintiff/Applicant was required to look for a second lot of grounds or reasons to justify or establish sufficient cause for the second time.

23. In the case of Rovina Null v MVIL (PNG) Trust, N1831, unreported, the court allowed an extension of time despite the fact that there was a delay of three (3) years, and the reasons for the delay being the applicant was unaware of the statutory requirements to lodge the notice, the applicant was awaiting the police accident report and the applicant had financial constraints in engaging a lawyer. 

24. In the present case, the delay was 9 months, well below the 3 years period in the Rovina Null case (supra) and the reasons for the delay were somewhat similar or more substantial than the ones in the Rovina Null case (supra).

25. Taking into account the above discussions, I am of the opinion that the Plaintiff/Applicant did establish or had shown "sufficient cause" for the delay in submitting the notice of his intention to claim. He had therefore discharged the onus placed on him in establishing sufficient cause. He had provided a reasonable explanation as to why he did not give the requisite notice within 6 months.

ISSUE 2

Whether the annexures referred to in the affidavit of the Plaintiff/Applicant should not be admitted as evidence as they are hearsay?

26. The Plaintiff/Applicant swore an affidavit on the 29th August 2007; and annexed thereto were documents that he believed provided justification or explanation as to why he did not lodge his notice of intention to claim within the first six (6) months after the accident.

27. The first document, annexure "A" is a letter dated 22nd June 2006 from the Plaintiff/Applicant to the Insurance Commissioner. Mr Pokia, counsel for the Defendant/Respondent objected to this document and submitted that the letter was not signed by the Plaintiff/Applicant, and not written by Bernard Koae as claimed by the Plaintiff/Applicant. This letter was signed by someone else. The Plaintiff/Applicant is not the creator or author of this letter. This letter therefore should not be admitted as evidence as it is hearsay.

28. The second document, annexure "B" is a letter dated 11th of December 2006 from the Acting Insurance Commissioner to the Plaintiff/Applicant. Mr Pokia also submitted that this letter should also not be admitted as evidence as it is hearsay. He submitted that the letter was addressed to care of Bernard Koae although directed to the Plaintiff/Applicant. The Plaintiff/Applicant was kept at a distance in the exchange of these two letters, annexure "A" and annexure "B".

29. Annexure "C" is the third document that was annexed to the affidavit of the Plaintiff/Applicant and is a letter dated 19th December 2006 from Bernard Koae to the Trust Manager. Mr Pokia submitted that because the Plaintiff/Applicant is not the author of this letter, this is hearsay evidence.

30. The fourth document, annexure "D" is a letter dated 17th April 2007 from the Claims Manager of the Defendant/Respondent to Bernard Koae. The Plaintiff/Applicant is not the creator and author of this letter and further the letter is addressed to Bernard Koae. Once again Mr Pokia argued that this letter should not be admitted as evidence as it is hearsay.

31. The next document is annexure "E" which is the Police Accident Report. Mr Pokia argued that the Plaintiff/Applicant is not the author of this report, nor does he say how he came into possession of the report. Therefore it is hearsay evidence.

32. The final document is annexure "F" which is the Medical Certificate of Death. Mr Pokia submitted that the Plaintiff/Applicant is not the author of affidavit and does not say how he came into possession of the certificate, this is also hearsay evidence.

33. In relation to annexures "A","B","C" and "D", it is clear that with all intents and purposes the subject matter of this whole exercise is the application of the Plaintiff/Applicant for an extension of time after the required 6 months period had lapsed. The Plaintiff/Applicant’s name was mentioned in all the letters as the subject of the application. The letter from the Defendant/Respondent, annexures "C" and "D" was in response to the letters submitted on behalf of the Plaintiff/Applicant, annexures "A" and "B".

34. The Police Accident Report and the Medical Certificate of Death, annexures "E" and "F" respectively also clearly refers to the Plaintiff/Applicant as the subject of the Police Report and the Certificate of Death. Of course the Plaintiff/Applicant cannot be the author of the Report and the Certificate as these were not supposed to be prepared by him. They were supposed to be prepared by independent persons on behalf of the Plaintiff/Applicant, and rightly so to avoid allegations of bias.

35. Mr Pokia relied on the case of MVIL v Viel Kampu (1998) SC 587 to support his argument about annexure referred to the affidavit of the Plaintiff/Applicant not to be admitted. That documents sought to be relied on ought to be established according to the law of evidence.

36. In the case of Korowa Pup (supra) the court in considering whether the trial Judge erred in admitting into evidence the Police Accident Report, Medical Report and the correspondence to and from the Plaintiff lawyers and third party, it decided that the trial judge did not fall into error. The Court said:

"The Police accident report and the Medical report in our view were annexed to the affidavits of the respondents to explain the time factor involved in obtaining the reports. They were in our view matters that were relevant to establish on their own behalf sufficient cause as required by S.54 (6) of the Act. 

If the documents were not allowed they would not have shown sufficient cause to make their claim to the Trust. They had to explain why they did not lodge their notice of intention to claim from the Trust within the first six months after the accident. In our view it was proper that in the interest of justice the trial judge accept the documents. Of course these documents are not in evidence for the purpose of the trial proper. Proper evidence must be produced at the hearing of the trial proper.

Similarly the letters that were appended to the affidavits of the respondents in OS 28 and 29 of 1996 were in our view appended to show "sufficient cause" why notice of intention to claim from the Trust was not lodged within the 6 months of the date of accident. In our view it was necessary that those documents were appended and in our view it was proper and admissible at that stage. In the circumstances we dismiss that ground of appeal."

37. In my view the above two supreme court decisions do conflict with each other in so far as admissibility of documents by applicants under Section 54(6)(b) are concerned. I will however adopt the view expressed by the Court in the Korowa Pup case. 

38. In the present case, the Police Accident Report, the Medical Report of Death and the correspondence between the Plaintiff/Applicant and the Defendant/Respondent and a third party were annexed to show "sufficient cause" as required under Section 54(6)(b). The Plaintiff/Applicant had to justify why the notice of his intention to claim was not lodged within the required time frames under Section 54(6)(b) and those documents assisted him to comply with the requirements of Section 54(6)(b). Without those documents he would not have provided the basis upon which to succeed in his application.

39. I therefore allow the documents to be admitted.

ISSUE 3 

Whether the Plaintiff/Applicant is required to establish a prima facie case when he is applying for an extension of time under Section 54(6)(b) of the Act?

40. Mr Pokia for the Defendant/Respondent argued that an applicant applying for an extension of time under Section 54(6)(b) must show prima facie case against the Defendant/Respondent. He referred to these cases to support his contention namely, Application of Jack Lukas Kuri [1991] PNGLR, 448, No. 11075; MVIL v Viel Kampu (supra); Sinowa v MVIL (1992) No. 980 and Kongupi v MVIL (1992) No: 1043.

41. In particular, he argued that in order to sustain a claim against MVIL, the claimant must establish a lot of factors like whether the vehicle comes within the categories set out under Section 54(1) of the Act, was the vehicle insured by MVIL, was the vehicle unregistered but on a public street, could the identity of the vehicle not be established after due search and enquiry and whether there was fault on the part of the driver or owner of the vehicle.

42. Again it is clear that the factors referred to by Mr Pokia are factors that must be established by an applicant at the trial proper after an extension of time has been granted. I do not think the Plaintiff/Applicant in the present case was required to prove those points when he applied for an extension of time under Section 54(6)(b) of the Act. All that the Plaintiff/Applicant was required to establish was whether there was sufficient cause or the reasons for the delay amounted to sufficient cause in order for the Insurance Commissioner to grant an extension of time.

43. In the case of Korowa Pup (supra), the Court there when considering this issue, said:

"The third ground is that the learned trial judge erred in holding that the Plaintiffs were not required to show a prima facie case against the respondent. Section 54(6) of the Act is clear in its reading. It provides that no action lies against the Trust unless a notice of intention to make a claim or within such further period as the commissioner or the court, on sufficient cause being shown allows. The claimant is required to establish or show sufficient cause to the commissioner or the court why he was not able to make his claim within the 6 months after the occurrence of the claim. He is not required to establish a prima facie case at that stage. He will be required to establish at the trail. We therefore hold that the learned trial judge did not err. We dismiss the ground".

44. The case of Korowa Pup (supra) is on point and is applicable to the circumstances of the present case and I adopt that passage. The Plaintiff/Applicant is therefore not required to establish a prima facie case at this stage when he is merely applying for an extension of time under Section 54(6)(b) of the Act. He is however required to establish a prima facie case at the trial proper.

ISSUE 4

Whether the Plaintiff/Applicant’s failure to promptly notify the Defendant/Respondent of his intention to make a claim against the Defendant/Respondent, prejudiced the Defendant/Respondent’s position in relation to the claim by the Plaintiff/Applicant?

45. Section 54(1)(c) of the Act provides as follows:

"54 – Claims for damages.

1.	Subject to subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of –

(a)	---------------------------------------------, or
(b)	---------------------------------------------, or
(c)	a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established, Shall be made against the successor company and not against the owner or driver of the motor vehicle and, subject to subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle."

46. In the case of Michael Ivia v MVIL [1995] PNGLR 183, it is said that the applicant must demonstrate that there would be no prejudice caused to the Motor Vehicle Insurance Ltd as a result of the lateness of giving notice of a claim and making that claim.

47. In the case of Revit Mangol v MVIL [1990] PNGLR 327, N876, a claim for damages for personal injury was brought under Section 54(1)(c) of the Act. The Plaintiff in that case was driving a Ford Motor tractor when he was forced off the road by the negligent driving of a yellow Toyota Land Cruiser, The Plaintiff was unable to identify the latter vehicle even after due search and inquiry. The court held that proof of due search and inquiry is a pre condition to a claim based on Section 54 (1)(c). Due search and inquiry must be made at a time of the accident or soon thereafter and must be done objectively reasonable in the circumstances. Inquiries made of a police officer some 5 years after the accident was held not to constitute due search and inquiry.

48. Ms Dademo submitted that in the present case, the Police Accident Report annexed and referred to as annexure "A" in the affidavit of the Plaintiff/Applicant indicated that due inquiry and search was conducted by the Policeman objectively and reasonably under the circumstances. This was so because it listed the name of the witnesses and their address, it indicated that there was a vehicle involved and the direction it was travelling to and from, it failed to stop and it hit the deceased.

49. Ms Dademo further submitted that those information were obtained from witnesses whose names and addresses are listed and a sketch had been provided as well. The Report also indicated that Police attended at the scene and therefore information obtained will have been very recent. 

50. One can reasonably conclude that there was an accident and despite there being no description of the vehicle on the Police Accident Report.

51. Mr Pokia on the other hand argued that the Defendant/Respondent is prejudiced because there was no information regarding the registration of the vehicle, name of driver and owner of vehicle and cannot properly conduct an investigation to ascertain whether its insured owner or driver was at fault. Even if a claim can be lodged under Section 54(1)(c) of the Act, the Plaintiff/Applicant had failed to show due search and enquiry.

52. Having considered the submissions of counsels, I accept the position as argued by the Plaintiff/Applicant’s counsel in that the Police Accident Report obviously indicated the due search and enquiry was conducted by the Policeman objectively and reasonably under the circumstances. What I fail to understand is that the Defendant/Respondent had not shown that the witnesses listed were unable to be located to verify the report. No attempts were made to verify from the witnesses that what was reported in the Accident Report actually did take place.

53. In the circumstances, I find that the Plaintiff/Applicant had shown proof of due search and inquiry and that the Defendant/Respondent suffer no prejudice as a result of the Plaintiff/Applicant’s delay in giving notice of his intention to claim.

54. All in all I find that the Plaintiff/Applicant had established sufficient cause to warrant an extension of time to give notice of his intention to claim.

55. Leave is therefore granted for an extension of time for 14 days for the Plaintiff/Applicant to lodge a notice of intention to claim pursuant to Section 54(6)(b) of the Motor Vehicle (Third Party Insurance) Act.

56. I make no orders for costs.

Orders accordingly.

Public Solicitor: Lawyer for the Plaintiff/Applicant
Mirupasi Lawyers: Lawyer for the Defendant/Respondent