SC825
PAPUA NEW GUINEA

The Supreme Court of Justice

SCA 7 of 2005

Between

MOTOR VEHICLES INSURANCE LTD.
Appellant

And

SANAGE KURI
Respondent

INJIA DCJ, GAVARA-NANU J AND LAY J
PORT MORESBY
1st September 2005
2nd March 2006

LIMITATION OF ACTIONS - Frauds and Limitations Act s16 ─ actions for things done under statutes ─  notice of intention to claim ─ notice to Motor Vehicles Insurance Limited ─ notice under Motor Vehicles (Third Part Insurance) Act Ch 295 s54(6 )─ nature of notice ─ notice condition precedent to issue of writ ─ notice not element of cause of action.

Facts:

The Plaintiff was injured in a motor vehicle accident on 16th March 1996. Notice was given to the Appellant on 22nd December 2003 pursuant to Motor Vehicles (Third Party Insurance) Act s54(6) and pursuant to an extension of time granted by the Insurance commissioner on 10 December 2003. The Respondent commenced proceedings on 20th September 2004. The Appellant’s application to strike out the proceedings as being barred by the Frauds and Limitations Act was dismissed on the basis that the notice under Motor Vehicles (Third Party Insurance) Act s54(6) was an essential element of the Respondent’s cause of action and until that notice was given the cause of action had not accrued for the purposes of the Frauds and Limitations Act s16.

Held:

Notice pursuant to Motor Vehicles (Third Party Insurance) Act s54(6) is not an element of the cause of action of tort, it is a condition precedent to the right to issue a writ against the Appellant. Such notice does not have any affect on when the cause of action arose. Hence the cause of action accrued on 16th March 1996 for the purposes of the Fraud and Limitations Act s16.Therefore the action was statute barred. Appeal allowed, action in the National Court dismissed. Respondent to pay the Appellants costs of the appeal and the action in the National Court.

Cases Cited:
Rundle v MVIL [1988-89] PNGLR 20
Paul Tohian, Minister for Police and the State v Tau Liu SC566;
Patterson Lowa, Minister for Minerals and Energy v Wapula Akipe & Ors [1992] PNGLR 399;

Appearances:
J. Naipet for the Appellant
M. Konge for the Respondent

By the court: This is an appeal against an interlocutory judgment of his Honour Cannings J. in the National Court in Mt. Hagen on the 21st of December 2004.

The respondent is alleged to have received injuries in a motor vehicle accident in Mt. Hagen on the 16th of March 1996.  The respondent first lodged his notice of intention to claim with the appellant on or about the 27th of September 2002.  The respondent's notice was rejected by the appellant on the basis that it was given outside of the six months pursuant to the provisions of s54(6) of the Motor Vehicles (Third-Party Insurance) Act, Chapter 295 (“the Act”), which provides:

(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 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.

The respondent then sought an extension of time from the Insurance Commissioner, who granted him an extension of time on 10 December 2003, to give his notice within 28 days.  The extension of time was granted by the Insurance Commissioner more than seven years after the alleged accident.

After obtaining the extension from the Insurance Commissioner, the respondent gave notice to the appellant on the 22nd of December 2003.  The respondent then filed a writ of summons on the 20 September 2004, which is approximately 8 years after the alleged injuries were received.

A defence was filed by the appellant and served on the respondent's lawyer pleading that the claim was filed outside of the six years permitted by the Frauds and Limitations Act s16 for bringing an action in tort; and therefore it was statute barred. 

Section 16(1) of the Frauds and Limitations Act provides:

16.	Limitation of actions in contract, tort, etc.

(1)	Subject to Sections 17 and 18, an action—

(a)	that is founded on simple contract or on tort; or

(b)	… or

(c)	…; or

(d)	…,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

The appellant filed a notice of motion on the 25 October 2004 seeking to dismiss the proceedings for being statute barred. The motion was heard on 12th November 2004 and on 21 December 2004 the motion was dismissed. This appeal is from that order.

In the court below, the judge reasoned that 

“the giving of notice of a claim to the defendant is an integral part of the cause of action of a person who has been injured in a motor vehicle accident and takes action under section 54 of the Motor Vehicles ( Third-Party Insurance) Act.  (Rundle v MVIT [1988-89] PNGLR 20, Supreme Court, Kidu CJ, Bredmeyer J and Amet J.”)

In the present case, notice was given to the defendant, in accordance with the Insurance Commissioners approve on the 22 December 2003.  Giving of that notice was an essential ingredient or element of the plaintiff's cause of action. So that is the date when the cause of action accrued.”

With respect this is where his Honour fell into error, as a perusal of what was actually held in the case of Rundle v MVIT [1988-89] PNGLR 20 (Kidu Cj, Bredmeyer & Amet JJ) discloses. Bredmeyer J, (who was in the minority on the issue of whether or not the notice had to precede the writ) said (p23):

“…a notice under s54(6) is different from a writ of summons. A notice under s54(6)  is a notice to the Trust of an intention to claim; the writ of summons is the claim itself. The two are different although they normally provide the Trust with the same information”.

Amet J (with whom Kidu CJ agreed) said (p28):

(notice) “…is a condition precedent to “any action to enforce any claim...(p31) I am of the opinion that the writ of summons cannot be deemed to be that notice. It is my opinion the commencement of action to enforce or proceedings to enforce the claim or the institution of action to enforce the claim which is not permitted “unless notice of intention to make a claim” has been given to the Trust.”

As the Court identified in Paul Tohian, Minister for Police and the State v Tau Liu SC566 (Kapi DCJ, Sheehan and Jalina JJ) what the Rundle Case actually decided was:

“The provision under consideration is very similar to s 54 of the Motor Vehicles (Third Party Insurance) Act (Cap 295) (hereinafter referred to as the MVITA). The Supreme Court has considered that provision and concluded that service of notice of intention to make a claim under the MVITA is a mandatory condition precedent to the validity of any writ of summons filed against the Trust (see Rundle v MVIT [1988-89] PNGLR 20).”

Notice under s54(6) is not part of or an element of the cause of action, it is a condition precedent to issue of the writ. Giving of notice under s54(6) has no effect on when the cause of action accrues.

A cause of action accrues when all of the facts necessary to give rise to a form of action establishing a right to judgement come into being: Patterson Lowa, Minister for Minerals and Energy v Wapula Akipe & Ors [1992] PNGLR 399 per Kapi DCJ at 429. When there is an injury to a person in a motor vehicle accident caused by negligence reasonably foreseeable and not too remote caused by a party who owes a duty of care, a cause of action has accrued. 

To enforce the cause of action the injured party cannot issue a writ against the tortfeasor because that  right to bring an action against the tortfeasor is taken away by s54(1) of the Act. The Act then gives a new right to bring the action against the MVIL, subject to the condition of notice within 6 months of the occurrence out of which the claim arose.

Notice under s54(6) of the Motor Vehicles (Third Party Insurance) Act is not a fact which it is necessary to prove to support the claimants right to judgement. It is a fact the Plaintiff must prove to support his right to issue a writ against the MVIL. The notice is notice that the claimant believes he has a cause of action which he intends to bring. The cause of action accrues prior to the notice. To be more specific, the cause of action accrues from the date upon which the events giving rise to the claim occurred.

Lay J acknowledges that in his decision in the case of Naomi Vicky John v National Housing Commission N2770 dealing with the condition precedent to issue a writ against the State required by s5 of the Claims by and Against the State Act, his statement that “Without the notice there is no cause of action” is more accurately stated as “without the notice there is no enforceable cause of action.” The same applies with Motor Vehicles (Third Party Insurance) Act s54(6). Without the notice there is no enforceable cause of action, although a cause of action may have accrued.

Once it is clear that notice under s54(6) is not part of the cause of action it follows that the cause of action in this case “accrued” on 16th March 1996 for the purposes of s16 of the Frauds and Limitations Act. The action was commenced more than 6 years after the cause of action accrued, and is thus barred by that Act.

This is sufficient to dispose of the matter, there is no need to address the parties other submissions.

The Appeal is allowed, the proceedings in the National Court are dismissed, the Respondent is to pay the Appellants cost of the appeal and the action in the National Court.
_____________________________________________________________________
Lawyers for the Appellant	:	Mirupasi Lawyers
Lawyers for the Respondent	:	Kopunye Lawyers