N1419

PAPUA NEW GUINEA
[National Court of Justice]

OS NO. 98 OF 1996

RABEN KALALYO

-V-

MOTOR VEHICLE INSURANCE (PNG) TRUST

WAIGANI: Sevua J.
1996: 3 & 12 April

Practice - Notice of Action - Extension of time for personal injuries - Motor vehicle accident - Damages claim - Notice to Trust - Application for extension of time - Extension within Court’s Discretion - Exercise of Discretion - Motor Vehicles (Third Party Insurance) Act (Chapter 295) s 54(1),(6).

Limitation of Actions - Notice in which to make a claim - Notice to Trust - Application for extension of time to Court where Insurance Commissioner has refused - Extension within Court’s discretion - Exercise of discretion based on proper principles and all the circumstances of the case - Rundle v. Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20.

Extension within Court’s discretion - Exercise of discretion - where plaintiff illiterate or uneducated and unaware of requirement of s 54(6) - Where attempts made outside, statutory limit - Delay - Unfair to refuse application where plaintiff is illiterate or uneducated and delay due to ignorance of requirement of s 54(6).

Cases Cited:
Graham Rundle v. Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20.

P. Mamando, for Plaintiff
R. Thompson, for Defendant

12 April 1996

SEVUA J.: The plaintiff was injured in a motor vehicle accident which occurred on 14 August, 1993 on the Baiyer Road in Western Highlands. She was a passenger in a Isuzu truck Registration NAB.048 driven by one Maku Bruce. She sustained injuries on her face and was admitted to Mount Hagen Hospital. She was seen by Dr. Yet Akalamana on 15 & 16 August, 1993 and further reviewed on 14 February 1994. Particulars of her injuries are contained in the doctor’s report dated 14 February, 1994. The doctor concluded that she has sustained 45% disability in her nose and nostril.

The plaintiff’s failure to lodge a claim against the respondent is attributed to her illiteracy and difficulty in communication since her village can be reached only by foot from Lumusa Station. I accept this. After her discharge she returned to her village and remained there except for the occasion she attended the hospital for review. She was ignorant of the requirements of s 54(6) of the Motor Vehicle Third Party Insurance Act, Ch. 295. Again I accept this. She only became aware of the notion of insurance when she was asked at the end of 1993 by one Napil Kuri, the provincial government member for Lumusa, if she had claimed insurance for her injuries and even then she did not know she was required to give notice. With assistance from Napil Kuri, instructions were given to Paul Amaiu & Co. Lawyers, in Mount Haden with a deposit of K100.00 for fees.

The defendant’s records showed that an undated letter from Paul Amaiu & Co. Lawyers was received on 30 May, 1994 together with the doctor’s report and hospital card. The defendant responded to that letter on 22 July, 1994 and it seems obvious that, Paul Amaiu & Co. Lawyers did nothing thereafter. The plaintiff subsequently became aware upon inquiring, that Paul Amaiu & Co. Lawyers had ceased trading in Mount Hagen. On 22 March, 1995, the plaintiff instructed Mamando Lawyers to pursue this matter. Between the date of accident to the time the plaintiff instructed Mamando Lawyers, a period of 1 year and 7 months had elapsed. From the end of the 6 months statutory period to the date instructions were given to Mamando Lawyers is a period of 1 year 8 days. I accept the plaintiff’s evidence relating to delay in making a claim against the Trust within the statutory period.

The defendant opposed this application and argued that the delay was unreasonable. If I understood Ms Thompson correctly, the defendant argued that the accident report which was supplied did not contain the name of the police officer who investigated the accident as part of the report, especially the bottom part, seemed to have been excluded. The defendant knew about this matter when it received Paul Amaiu & Co. Lawyers letter on 30 May, 1994, however, it did not have the benefit of the accident report to enable it to seek instructions from the driver of the vehicle. That report was received when this application and supporting affidavits were served on it recently. It therefore argued that it has been prejudiced.

I consider that the defendant’s claim of prejudice can be adequately overcome by the plaintiff supplying a better copy of the accident report with the missing part. From experience, the original Police Accident Report form which is used in all motor vehicle accidents is a paper larger than the A4 and foolscap therefore when copying, it is bound to have part of it missing unless the copy is largely reduced in size. In my view, the fact that the bottom part of the accident report was excluded did not show any sinister motive on the part of the plaintiff. It was just unfortunate.

The respondent relies on Rundle v. MVIT [1987] PNGLR 44 however, that case is not the authority on s 54(6). I think, Ms Thompson could be referring to Rundle v. MVIT [1988] PNGLR 20 which is the Supreme Court decision relating to s 54(6).

In that case, I note that a period of 28 days was granted by the Insurance Commissioner after 2 years 3 weeks from the date of accident. A further 28 days extension was granted by the Insurance Commissioner after almost 3 years from the date of accident. The second extension resulted from failures by lawyers to act diligently and this was held by both Kapi, DCJ in the National Court and Amet, J (as he then was) in the Supreme Court as "inexcusable". The Supreme Court said that the power of a Court under s 54(6) 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 taking into account all the circumstances of the case. I have no reason to disagree with this.

I pause here to ask, do we penalise an ordinary Papua New Guinean by refusing his/her application for an extension of time to make a claim against the Trust because of delay due to his/her ignorance of the statutory requirement of s 54(6) of the Motor Vehicle Third Party Insurance Act? In my view, it is quite unfair to refuse an application for that reason. Most, if not all, ordinary Papua New Guineans who are injured in motor vehicle accidents are illiterate or uneducated. They are ignorant of this piece of legislation. Experience has shown that the majority of cases that proceeded to Court by way of similar application was because the claimant has been ignorant of the requirement of s 54(6). Given that scenario, do we then penalise the ordinary illiterate or uneducated citizen because of his ignorance of this law? Not, it is unfair in my view.

I reiterate here the circumstances of the present case. The plaintiff is an ordinary Papua New Guinean, illiterate and ignorant of the requirement of s 54(6). More than a year after the accident, she became aware that she had to make a claim for her injuries, but did not know that notice of a claim must be made within 6 months from the date of accident. When she became aware that a claim could be made, she did not sit back in her village and did nothing. Through a relative, this matter was referred to a lawyer, Paul Amaiu, in Mount Haden although, there is no evidence as to the exact date when Paul Amaiu was instructed. It could have been 11 July 1994. Paul Amaiu, appeared to have done nothing except, writing a letter to the Trust and then he disappeared. Consequently, the plaintiff instructed Mamando Lawyers, some 1 year 8 days after her statutory right had expired. Under such circumstances, I would be inclined to grant an application for extension of time in which to give notice.

I hold the view that, where a injured person is aware of the requirement of s 54(6) however, he deliberately sat back and did nothing to pursue a claim against the Trust, his application for extension should be refused. On the other hand, however, where a person is ignorant of the requirement of s 54(6) but become aware of that requirement after the statutory period had expired and he makes attempts to pursue a claim although his claim is delayed or he is out of time to make a claim, both the Insurance Commissioner and the National Court should readily grant his application for an extension of time in which to give notice. It is my view that where an injured person has not deliberately delayed an application for extension of time to lodge a claim, his application should be considered favourably by the Insurance Commissioner and/or the Court, after all, the purpose of the third party insurance is to meet liability.

In the present case, whilst I am satisfied that there has been delay, in the exercise of my discretion, I will grant the application on the basis of what I have alluded to earlier on. The applicant is therefore granted an extension of 21 days from today to give notice to the Trust. I make no orders as to costs.

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Lawyer for the Applicant: Mamando Lawyers
Lawyer for the Respondent: Young & Williams