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Rawa v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 21; N1276 (5 December 1994)

Unreported National Court Decisions

N1276

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 434 OF 1994
BETWEEN:
OVOA RAWA (Plaintiff)
And:
MOTOR VEHICLES INSURANCE (PNG) TRUST (Defendant)

Waigani

Injia J
2 December 1994
5 December 1994

PRACTICE - Notice of action - Personal injuries - Damages Claim - Notice to Motor Vehicles Insurance (PNG) Trust within six months of accident - Application for extension of period by Insurance Commissioner made and granted before the expiration of the initial six months period following the date of the accident - grant of extension of 28 days irregular - Consequence of irregularity - a nullity - Motor Vehicles (Third Party Insurance) Act (Ch No. 295), S. 54(6).

PRACTICE - Application for Extension of time first made to Court 31/2 years after accident - “sufficient cause” for delay in giving notice of claim - relevant factors - applicant illiterate and ignorant village housewife - permanent crippling disability restricting applicant’s mobility - Involvement of relatives and “wantoks” of the applicant’s husband in pursuing claim for compensation without applicant’s knowledge - whether “sufficient cause” shown by applicant - applicant granted 14 days to give notice of claim to the Motor Vehicles Insurance (PNG) Trust - Motor Vehicles (Third Party Insurance) Act (Ch No. 295), S. 54(6).

Cases Cited

Sylvanus Gorio v National Parks Board [1982] PNGLR 364

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

Text

De Smith Judicial Review of Administrative Action (4th Edn)

Counsel

P Mamando for the Plaintiff

R Thompson for the Defendant

5 December 1994

INJIA J: This is an application by the plaintiff pursuant to Section 54 (6) of the Motor Vehicle (Third Party Insurance) Act Ch No 295 (the “Act”) for extension of time to give notice of intention to make a claim to the Defendant. The application is contested by the defendant.
Section 54 (6) of the Act provides:

“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 plaintiff sustained severe leg injuries in a motor vehicle accident which occurred on 8 January 1991 at Dikagari Road, Port Moresby. As a result she was hospitalised at the Port Moresby General Hospital (PMGH) from 8 January to 25 April 1991.

The time limit for giving notice of intention to make a claim expired on 8 July 1991 without the plaintiff giving notice of her intention to make a claim for compensation to the defendant. To this day, the plaintiff claims she has still not given notice of claim to the defendant. But someone she claims to be one of the relatives of her husband, without her knowledge, erroneously sought from the Insurance Commissioner (“the Commissioner”) an extension to give notice of the claim on her behalf. On 14 June 1991, the Commissioner erroneously granted to the plaintiff’s husband, one Goru Walevo, an extension of 28 days to give notice of the claim on the plaintiff’s behalf. A copy of this letter is annexed to the plaintiff’s affidavit. I am saying erroneously because the application for extension was sought and granted within the currency of the six months period following the date of the accident. That letter was addressed to Goru Walevo, c/- Ani Vali Enterprises Pty Ltd, Post Office Kwikila. No notice was given by Goru Walevo on the plaintiff’s behalf pursuant to the said extension. The plaintiff now says a fresh application to the Commissioner by her lawyers seeking a further extension has been refused for the reason that the first extension was not acted upon. Hence, it seems, the plaintiff has come to this Court.

The principles applying to s. 54 (6) is now settled by the Supreme Court in Graham Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20. Amet J (as he then was) with whom Kidu CJ agreed said at p. 29-30:

“Returning to the specific ground of appeal (a), I too agree with Kapi Dep CJ that the applicant is not put to an election between applying to the Insurance Commissioner or to the Court. He has a right to choose which of them he should first make an application to. If he should choose first to make application to the Insurance Commissioner, which would be easier and less time consuming, he retains the right to make further application to the Court if that become necessary.

“I agree that if the applicant should choose to apply first to the Commissioner, and the application is refused, he can apply to the Court. If the application is granted by the Commissioner, and the applicant failed to give notice, for whatever reason, he is not precluded from applying a fresh to this Court...That is a statutory right which cannot be defeated by circumstances. However, one can imagine that an applicant who is granted an extension but through neglect failed to give notice within the extended time would have a much harder row to hoe than an applicant who is applying to the Court for the first time or who had been refused an extension by the Commissioner.”

In relation to the consequences of the irregular exercise of power by the Commissioner in granting extension in respect of an application made to him which was made within the currency of the six months period, the common law principles as set out in De Smith in Judicial Review of Administrative Action (4th ed.), pp. 142ff at 142-143, which were adopted and applied in Sylvanus Gorio v National Parks Board [1982] PNGLR 364 at pp. 367-368 are applicable. That is:

“Although ‘nullification is the natural and usual consequence of disobedience’, breach of procedural or formal rules is to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced, or if serious public inconvenience would be caused by holding them to be mandatory, or if the Court is for any reason to interfere with the act or decision that is impugned.”

Applying the above principles to this case, I consider that the irregularity has resulted in substantial prejudice to the plaintiff, that is, in the manner in which the Commissioner has refused the plaintiff's fresh application, if any. Indeed the issue of time or and extension of time is the main focus of s. 54 (6). Without notice within time or extension of time thereof, no claim can be made against the defendant. I would treat the Commissioner’s extension granted on 14 June 1991 and his further refusal to grant an extension by reason of that extension not having been acted upon, both as a nullity. I would treat this present application as a fresh application, made for the first time, in which case the plaintiff does not have “a much harder row to hoe than an applicant who was granted an extension but through neglect failed to give notice within the extended time”.

There is another reason why I would refuse to recognise the extension granted on 14 June 1991 by the Commissioner. The extension was sought for and granted not to the plaintiff but another person who was either her husband or someone else associated with him. The plaintiff says she was never made aware of this and never authorized anyone to make a claim on her behalf. This evidence is not contested by the defendant. That person, whoever he is, had no authority to pursue her claim for compensation on her behalf. In any case, he was not a lawyer. Not surprisingly, he made a mess of the plaintiff’s claim.

The plaintiff bears the burden of proving “sufficient cause” for the delay to the required civil standard of proof, that is, on the balance of probabilities. Has the plaintiff discharged that burden?

The plaintiff says in her affidavit that she is an illiterate villager from a remote village known as Waro Iruone, Kwikila, Central Province. Although she was an in-patient at the Port Moresby General Hospital (PMGH) for 3 1/2 months and since her discharge from the hospital she has visited PMGH some seven times for further medical treatment in relation to the same injuries, she never knew her statutory right to claim compensation from the defendant and the prescribed procedure for giving notice of the claim. The medical attendance card which is annexed to Ms Thompson’s affidavit sworn on 25 November 1994 and filed on behalf of the defendant shows that she attended at PMGH on 3/7/91, 11/3/92, 3/3/93, 17/3/93 and 26/4/93. She says it was only in March this year that her sister Hitolo Sere informed her of her right and assisted her to make enquires and collect the relevant Medical Report and Police Accident Report from the hands of the plaintiff’s husband’s relatives and later see her present lawyers for assistance. On 16 August 1994, the plaintiff’s lawyers erroneously wrote to the defendant seeking extension of time to make a claim. It seems that her lawyers probably realized their mistake and hence applied to this Court.

It is submitted for the defendant that the plaintiff’s neglect is inexcusable because she was taking a keen interest in her injuries by coming to Port Moresby for medical treatment and was not staying in the village all the time as she says in her affidavit. It is submitted that her story that her husband was not aware of what his relatives were doing to claim compensation for themselves is hearsay and assumptions which this Court should not accept. It is further submitted that the Trust has suffered prejudice as a result of the long delay. Ms Thompson puts it succinctly at par. 5 of her affidavit as follows:

“It has now been nearly four years since the date of the alleged accident, and the defendant has lost the opportunity to locate the witnesses and obtain contemporaneous statements from them regarding the circumstances of the accident. As the plaintiff has alleged that the accident was caused when the vehicle in which she was travelling attempted to avoid an unidentified oncoming vehicle it was particularly important for the defendant to be able to make contemporaneous enquiries and attempted to establish the identity of that other vehicle. The defendant has completely lost that opportunity, and so has completely lost the opportunity to establish that the accident was caused by the negligence of a vehicle for which it may not have been liable.”

The question of whether an extension is to be allowed must be decided after examining all the relevant factual circumstances of each case. In the case before me, at the outset, it is 3 1/2 years since the time limit expired. That is a long time. There is no doubt that the plaintiff did not act promptly. Unlike other applicants who come from remote villages in provinces outside the NCD and Central Province, the plaintiff’s village is close to the defendant’s office, which is in Port Moresby and which is accessible by road. The plaintiff is not new to Port Moresby. The accident occurred in Port Moresby. She was an inpatient at PMGH for some 3 1/2 months. After discharge from the hospital, she has come to Port Moresby on seven different occasions to seek medical attention at PMGH, the latest one being on 26/4/93. She has been conscious of her injuries all these years. Then there are the relatives of her husband and perhaps her husband who knew that she was entitled to compensation from the defendant and sought extension of time from the Insurance Commissioner. It is unlikely that she was completely unaware of what was going on between her husband and his relatives.

Notwithstanding the above circumstances, however, I must not allow my own observations as to the general situation prevailing in the country and the supposed conduct of the plaintiff and her husband and his relatives as set out above to distract me from the plaintiff’s particular situation. That would be tantamount to requiring the plaintiff to roe a much harder row. I have before me an illiterate housewife from a remote village who was seriously injured and as a result permanently crippled. Dr Joseph’s medical report shows that as at 7/05/91, her permanent disability with the use of joint movement of both legs was 75%. Since then she has no doubt taken a keen interest in the recovery from the injuries. Her conduct in this respect is not unreasonable. Given her disability, one could not have expected her to vigorously pursue her compensation claim. It is also not unreasonable for her husband and his associates to take on the responsibility of claiming compensation on her behalf. But as ignorant as they were of the correct procedures for going about making a claim on her behalf, they made a mess of it. But now she is assisted by her sister Sere and is determined to do better this time.

The phrase “sufficient cause” embodies a wide range of factors which may explain the delay in giving notice within time. The plaintiff relies on her lack of sophistication and ignorance of proper procedures under the Act. This is a relevant factor. Her physical disability caused by the accident which no doubt restricted her mobility over the succeeding years and which prevented her from pursuing her claim within time or within a reasonable time thereafter is also a relevant factor. Another factor which I believe is peculiar to the circumstances of this country is the involvement of relatives and “wantoks” of the injured person, who are not lawyers or insurance specialists. Many relatives and wantoks step in to assist their injured illiterate relative. And it is common practice that the defendant allows relatives who are non-lawyers to pursue compensation claim on behalf of their injured illiterate relative. There is evidence that even the Insurance Commissioner permits this practice, in that he entertained an application for extension of time supposedly by the plaintiff’s husband. The plaintiff says she was unaware of what her husband’s relatives were doing for her. This evidence is not really contested by the defendant. I am inclined to accept her evidence.

Another relevant factor is the prejudice to the defendant as a result of the delay. In Rundle v MVIT, ante, p. 23, Bredmeyer J set out some of the policy reasons behind s. 54 (6): that this section is intended to prevent prejudice to the defendant. He said:

“Clearly when any claim for damages is made against the Trust it needs to know the driver and owner of the vehicle concerned and whether the vehicle is insured. The claimant’s knowledge of these details may be non-existent or incomplete and the Trust will need to make its own inquiries. The Trust needs to know the name of the driver so that it can get a statement from him following which it may deny liability because the driver was not negligent or because of the defence of volenti non fit injuria, or it may claim a reduction in damages because of the claimant’s contributory negligence. The Trust needs to know if the vehicle is insured because, if uninsured, it can recover the damages it pays against the driver and/or the owner: see s. 57.

“The purpose of s. 54 (6) is to give the Trust early notification of the claim so that it can make its inquiries. Obviously inquiries as to the driver, the owner, and the insurance details of a vehicle, become more difficult as time passes. Drivers change addresses and sometimes in Papua New Guinea their names, witnesses disappear, expatriates leave Papua New Guinea, and police accident reports and insurance certificates get lost...Section 54 (6) is designed to give the Trust prior notice of the claim within six months.”

Having closely studied the Police Accident Report, I do not think the defendant has completely lost the opportunity to enquire into the plaintiff’s claim. The key vehicle involved here is the vehicle in which the plaintiff was a passenger. To the police officer investigating the accident, the driver of this vehicle was entirely at fault in speeding and overtaking a stationary vehicle on the face of oncoming vehicle. The particulars of that vehicle and its driver, the vehicle’s third party insurance policy number and all the other relevant particulars about the vehicle and its driver are set out in the report. This driver was charged with dangerous driving under s. 17 (1) of the Motor Traffic Act. His case would have come on in the Traffic Court in Port Moresby. This information can be obtained from the Courthouse by the defendant. The driver and the owner of the vehicle are from nearby villages in Central Province. They can be located and questioned by the Defendant. As far as the plaintiff’s claim is concerned, all that she has to do is to show that the driver of the vehicle in which she was a passenger of was at fault in causing the accident. For the defendant’s purpose, that is all that it needs to know too. It may also wish to know the identity of the other vehicle but that is not necessary. In any case as police were unable to locate the identity of that vehicle soon after the accident, the chances of establishing its identity now is almost non-existent.

In the circumstances, I am satisfied that the plaintiff has shown sufficient cause for the delay in giving notice within time. I allow the plaintiff 14 days to give notice of intention to make a claim to the defendant under s. 54 (6) of the Act. I make no order as to costs.

Lawyers for the Plaintiff: Warner Shand Lawyers

Lawyers for the Defendant: Oung & Williams Lawyers