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Application by Kuri [1992] PNGLR 448 (18 August 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 448 - Application of Jack Lucas Kuri 

[1992] PNGLR 448

N1107

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF SECTION 54(6) OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT CH 295;

APPLICATION OF JACK LUCAS KURI

Mount Hagen

Woods J

18 August 1992

STATUTE OF LIMITATIONS - Limitation of action - Notice of intended action to Motor Vehicles Insurance (PNG) Trust - Personal injuries - Motor vehicle accident.

PRACTICE AND PROCEDURE - Application for extension of time - Sufficiency of cause - Principles in exercising discretion.

Facts

The applicant, who suffered injuries from a motor vehicle accident, applied for an extension of time within which to make a claim against the Motor Vehicles Insurance (PNG) Trust pursuant to s 54(6)(b) of the Motor Vehicles (Third Party Insurance) Act Ch 295. The time limitation for giving of notice of intention to make a claim against the insurance trust was 6 months from the date of the accident. The applicant was, however, 1 month out of time.

Held

1.       The notice of intention to make a claim against the Motor Vehicles Insurance (PNG) Trust must be made within 6 months of the accident.

2.       Section 54(6)(b) of the Motor Vehicles (Third Party Insurance) Act Ch 295 requires that sufficient cause must be shown before an extension of time may be granted. The power to grant an extension of time is a discretionary one, to be exercised according to proper principles and taking into account all the circumstances of the case. (Adopted and applied Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20.)

3.       Although the applicant was only 1 month late, taking into account all the circumstances of the case, the application for extension of time was refused. The following circumstances were taken into account: (1) the applicant has failed to show a prima facie case against a particular vehicle; (2) on the material before the Court, there was confusion over the identity of the vehicles, (3) there was no police road accident report, and (4) the medical report did not relate the injuries to the accident.

Cases Cited

Application of Sir Kepa Pupu (1992) unreported N1077.

Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20.

Counsel

P Dowa, for the plaintiff.

A Kandakasi, for the defendant.

18 August 1992

WOODS J: This is an application for an extension of time under s 54(6) (b) of the Motor Vehicles (Third Party Insurance) Act Ch 295 to give notice of intention to make a claim to the Motor Vehicles Insurance (PNG) Trust (the Trust).

Section 54(6) states:

"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."

The applicant states he was working for a company at the Porgera gold mine, and another employee of the same company asked him to get onto a truck and help him collect an oxygen bottle. They then drove down to a market at a village on the main highway outside the mine site and bought some cigarettes. On the way back to the work site, the driver lost control of the vehicle and the vehicle rolled backwards off the side of the road. The applicant states he was injured and hospitalised. He states the accident happened on 20 February. Apparently, the accident was not reported to the police so no police report was compiled. The applicant states he attended the medical centre in April. He also says he sought workers' compensation through his employer company, but apparently nothing happened. He sought legal advice in September 1991, that is 7 months after the accident, and the lawyer wrote to the Insurance Commissioner seeking an extension of time. That was refused.

The law is quite clear that no claim can be made against the Trust unless notice has been given. And the Parliament, having considered all matters relevant, has legislated that an original action by a notice must be made within 6 months of the accident. Parliament has, accordingly, considered that any person in this country would take action to press for compensation following receiving personal injuries fairly soon after an accident, and 6 months would be an appropriate limiting period. Perhaps this would be appropriate considering the propensity for people to be quick to claim damages for any alleged wrong. Such a limitation also allows the Trust to quickly ascertain the history or facts necessary for the proper consideration of the claim before the so-called trail runs cold or while it is still possible to contact people involved whilst their memory of the accident may still be fresh.

The section requires that sufficient cause must be shown before an extension of time is given. The Supreme Court in Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20 said that the power of a court under s 54(6)(b) to grant an extension of time in which to give notice of intention to make a claim is a discretionary one to be exercised according to proper principles and taking into account all the circumstances of the case.

In the Application of Sir Kepa Pupu (1992) unreported N1077, I considered that the reasons given in the request were not such that I should grant an extension of time. I felt that it was unusual for a man who was clearly struck by a vehicle not to have taken any action to seek compensation or seek out the owner of the vehicle before he did, and it was surprising that there was no evidence of anyone showing any concern for 10 months.

In this case, as the applicant was really only 1 month out of time and there seemed to have been some difficulties in getting the accident properly reported, a court could exercise its discretion in favour of the applicant. However, the 1 month out of time is not the only matter to be considered. As the Supreme Court said in Rundle's case cited above, the court should take into account all the circumstances of the case. So, surely, this must include the basis of the claim, namely, the clear identification of the vehicle concerned and the relevance of any alleged injuries to the accident. The applicant must show, what we would call, a prima facie case against a particular vehicle, whether clearly identified and, therefore, insured, or clearly unidentified. However, here on the material before the court, there is confusion over the identity of the vehicle, whether it was a Toyota Dyna or a Mazda utility, and there is no police road accident report to assist any authorities. On the alleged injuries, the medical reports do not refer the injuries to an accident on 20 February.

Therefore, after considering all the circumstances, I find that questions can be asked as to the very basis of the claim and, therefore, the material before the court is not sufficient for a court to grant an extension of time.

The application is refused.

Lawyer for the applicant: P Dowa.

Lawyer for the respondent: Young & Williams.