[1998] PNGLR 253

PAPUA NEW GUINEA

[national court of justice]

WANI UME

v

MOTOR VEHICLES INSURANCE (PNG) TRUST

goroka: sawong j
6 February 1998

practice and procedure – Notice of intention to make a claim to Motor Vehicles Insurance (PNG) Trust – Application for extension of time – Failure to comply with condition precedent to claim – Application to dismiss proceedings – Motor Vehicles Third Party Insurance Act (Ch. No. 295) Section 54(6).

Facts

The plaintiff Wane Ume was injured in a motor vehicle accident on 22nd August 1994 along the Okuk Highway and subsequently admitted to the Goroka Base Hospital. On 6th October 1994 the plaintiff’s former lawyers, Desmond O’Connor of O’Connor Lawyers wrote a letter to the Motor Vehicles Insurance (PNG) Trust purporting to give notice of intention to claim against the Trust. The matter was referred to this Court by way of an application by the defendant’s lawyers seeking to dismiss the proceedings on the basis that the plaintiff has not given notice to the defendant as required by s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295). Section 54(6) 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."

Held

1.	The requirement of giving notice of intention to make a claim against the Trust under s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295) is mandatory and it serves as a condition precedent to any action to enforce a claim. Rundle v MVIT [1988] PNGLR 20, applied.

2.	Letters from claimants’ lawyers with insufficient particulars or barest information could not be regarded as a notice complying with s 54(6) of the Motor Vehicles (Third Party Insurance) Act. Any such purported notice will be regarded as insufficient and improper notice.

Papua New Guinea cases cited

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

Counsel

No appearance for the plaintiff.
V Mirupasi, for the defendant.

6 February 1998

Sawong j. This was an application made by the defendant to have the entire proceedings dismissed. The application was made on the basis that the plaintiff had not complied with a condition precedent to instituting proceedings, against the defendant, in that he had not given any proper notice of his intention to make a claim. 

Mr Umba who appeared before the court informed the court that although he had acted for the plaintiff, he has had no communication with the plaintiff and was therefore not in a position to take part in the proceedings. He had in effect no instructions to either oppose or concede the application.

In support of the application the defendant relied on the affidavit of Mr Mirupasi sworn on 5th November 1996 and filed on 12 November 1996.

In his submission Mr Mirupasi says that the plaintiff has not given any notice to defendant as required by s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295).

In Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20, the Supreme Court held that the requirement of giving notice of intention to make a claim against the Trust under s 54(6) is mandatory and is a condition precedent to any action to enforce a claim.

It has been submitted that in the present case, the letter from the previous lawyers for the plaintiff contained insufficient particulars, that it could not be regarded as a notice complying with s 54(6).

The letter of 6 October 1994 is fairly short. It is necessary to set that letter in full to appreciate the argument raised by Mr Mirupasi. The letter reads;

Our ref: MVPI (532):lmk	Your ref:

Date: 6th October 1994	"WITHOUT PREJUDICE"

The Claims Manager
Motor Vehicles Insurance (PNG) Trust
P O Box 1157
PORT MORESBY

Dear Sir

Re: WANE UME - Injured

I wish to give Notice of Claim on behalf of WANE UME who was injured as a result of a motor vehicle accident which occurred on the 22nd of August 1994.

He was apparently injured on the Okuk Highway and after the accident was admitted to the Goroka Base Hospital. I do not have the details of the vehicles involved in the collision but I expect to have a copy of the road accident report in the near future and will provide a copy for your assistance as soon as it is to hand.

Yours faithfully,

D L O’CONNOR

I accept the submission made by Mr Mirupasi. The letter of 6 October 1994, by the plaintiff’s former lawyer could not be said to be proper notice. It could not be regarded as complying with s 54(6) of the Act, because it contains very little information. All the letter contains is the name of the plaintiff, the date of the alleged accident and general description that the accident occurred along the Okuk Highway. There are no particulars of the motor vehicles involved, no police accident report etc. In this case I consider that the letter of 6 October 1994 cannot be regarded as giving proper notice within the meaning of s 54(6). In effect it is an inadequate notice. To come within the meaning of the expression in s 54(6), a claimant must give detailed particulars. 

For instance the claimant must set out in the notice all the particulars of the vehicle involved in the accident, the name of the driver, the name of owner (where applicable), the location of the accident, the circumstances of how the accident occurred, the nature of the injuries suffered, any police accident report, (if it is available) and of course any hospital medical reports. However, if for instance the police accident or medical reports are not immediately available the Trust should be advised in the notice that these would be forwarded to it once those are received.

In my view it is not merely sufficient to send a notice, which contains the barest of information. In such a case the purported notice may well be regarded as insufficient and improper notice.

In the present case, the information in the purported notice of 6 October 1994 cannot be regarded as proper or adequate notice. It simply contains the barest information.

In those circumstances, I uphold the application. I order that the proceedings be dismissed.

Lawyer for the plaintiff: In person.
Lawyer for the defendant: Nii & Mirupasi.