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Pato v Motor Vehicles Insurance Ltd [2008] PGNC 93; N3403 (18 June 2008)

N3403

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 535 OF 2007

BETWEEN

PAULUS PATO
Applicant

AND

MOTOR VEHICLES INSURANCE LIMITED
Respondent

Mount Hagen: Makail AJ
2008: 22 May; 16 June

INSURANCE LAW - third party liability insurance - compulsory motor vehicle insurance legislation - notice of claim to insurer - must be given within six months - claim for damages for physical injuries sustained from motor vehicle accident - first application to insurance commissioner refused - application for leave to give notice out of time to court - whether applicant may rely on new grounds not placed before insurance commissioner for further application to court - applicant entitled to introduce new grounds - application for extension of time made to two separate and distinct decision making bodies - exercise of same or concurrent jurisdiction - being whether to extend time to applicants to give notice of claim to insurer out of time - Motor Vehicle (Third Party Insurance) Act - section 54(6)(a) & (b) - jurisdiction of national court found - Motor Vehicle (Third Party Insurance) Act - section 54(6)(b).

INSURANCE LAW - onus on applicant - applicant to show sufficient cause - sufficient cause is determined from circumstances of each case - reasons for delay - illiteracy - ignorance of legal requirement - awaiting preparation of police accident report and medical report - remoteness - accessibility to lawyers - no money to pay lawyers fees - whether reasonable explanation for delay in giving notice within time - Motor Vehicle (Third Party Insurance) Act - section 54(6)(b) - - application granted - orders.

Cases cited:

Graham Rundle -v- Motor Vehicle Insurance (PNG) Trust (No1) [1988] PNGLR 20
The Application of Sir Kepa Pupu (1992) N1077
The Application of Miawe Andakundi (1992) N1087
Motor Vehicle Insurance PNG Trust -v- Dixon Popo as The Insurance Commissioner (1992) N1048
Ovoa Rawa -v- Motor Vehicle Insurance Trust (PNG) Limited (1994) N1276
Michael Ivia -v- Motor Vehicle Insurance Trust [1995] PNGLR 183
Raben Kalalyo -v- Motor Vehicle Insurance Trust (PNG) Limited [1996] PNGLR 368
Dick Nauka -v- Motor Vehicles Insurance (PNG) Trust (1997) N1680
Sakame Yambone -v- Motor Vehicle Insurance Trust OS No 534 of 2007(Unnumbered & Unreported Judgment of 21 May 2008)

Counsel:
Mr Paulus Kunai, for the Plaintiff
Mr Koeya Peri, for the Defendant

18 June, 2008

1. MAKAIL AJ: By an Originating Summons filed on 18 September 2007 the Applicant applies to the Court for leave to give notice of his intention to make a claim against the Motor Vehicle Insurance Limited (herein the "Defendant") out of the prescribed 6 months time limit pursuant to section 54(6)(b) of the Motor Vehicle (Third Party Insurance) Act.

BRIEF FACTS

2. The Applicant was one of the nine passengers travelling in a motor vehicle described as a Mazda Truck bearing the Registration No HAG-712 travelling on Kandep Road on 7 July 2005 when it had an accident. It is alleged that as a result of the accident, the Applicant was one of the nine passengers who sustained serious bodily injuries. The Applicant seeks to make a claim against the insurer of the motor vehicles for damages for the injuries sustained.

3. However, he is out of time by a period of four days to give the required notice to the insurer within six months from the date of the occurrence of the accident. His lawyers had written a letter to the Insurance Commissioner on 11 January 2006 for extension of time but the Insurance Commissioner in a letter dated 8 May 2006 refused the Applicant’s request for extension of time. The Insurance Commissioner gave the following reasons for his refusal:

1. The said motor vehicle involved in the accident was not registered against third party liability; and

2. Uninsured vehicles are not covered under the third party insurance policy and therefore compensation could not be claimed.

EVIDENCE

4. The Applicant relies on his Affidavit sworn on 16 May 2007 and filed on 18 May 2007 to support his application for extension of time.

5. The Defendant has also filed and relies on the Affidavit of Robert Doko sworn on 16 October 2007 and filed on 18 October 2007 and Affidavit of Koeya J Peri sworn on 19 October 2007 and filed on 23 October 2007 to oppose the application for extension of time.

6. From these Affidavit materials, it is the Applicant’s evidence that the accident occurred on 7 July 2005 and he was hospitalized on the same day where he received medical treatment for the injuries sustained in the accident. Although the accident occurred on 7 July 2005, the Medical Report was prepared on 27 October 2005. The Police Accident Report was prepared on 5 October 2005.

7. The delay is in two parts. First there was the unexplained period of three months from 25 October 2005 to 7 January 2006 although the Applicant says he was not aware of the requirement or giving the notice to the Defendant within six months and that he hails from Kandep, being a remote part of the country where communication and accessibility to lawyers is difficult.

8. After the Insurance Commissioner responded to the Applicant’s request of 11 January 2006 for extension of time and refused the application on 8 May 2006, there was the second delay from 8 May 2006 to the date of filing the Originating Summons on 18 September 2007. The Applicant says that he did not attend to his lawyers until 16 May 2007 and when he did so, he was advised by his lawyers that the Insurance Commissioner had refused his request for extension of time and he was to make an application to the Court. That was the time he also executed his Affidavit to support the application but the application was not filed until 18 September 2007. The reason being, he had to look for money to pay for his legal fees before the application could be filed.

9. In the present case, it is not disputed that the accident occurred on 7 July 2005. The six months time period to give notice to the insurer expired on 7 January 2006. The Applicant saw his lawyers on 11 January 2006 to pursue his claim for damages against the insurer. This was four days late. His lawyers wrote to the Insurance Commissioner on 11 January 2006 for extension of time but the Insurance Commissioner wrote back on 8 May 2006 and refused the Applicant’s request for extension of time.

10. From the Applicant’s Lawyers letter to the Insurance Commissioner dated 11 January 2006, the lawyers stated that; "The reason for the delay was that firstly our client is illiterate with no formal education and he was not aware of the time limit in which to give notice and secondly he could easily find money to engage the services of a lawyer in time.

THE LAW

11. It is the law under section 54(6)(b) of the Motor Vehicle (Third Party Insurance) Act that a claim for damages against the insurer for any injury or death arising from a motor vehicle accident in Papua New Guinea must be made to the insurer beginning with a notice of claim and the notice of claim must be made within a period of six months from the date of the accident. It states that:

"54. Claims for damages.

(1) Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use o f-

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the successor company and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.

(2) Subsection (1) does not apply to a claim for damages made under the Motor Vehicles (Third Party Insurance) (Basis Protection Compensation) Act 1974.

(3) A claim under Subsection (1)(a) or (b) may be made, and any proceedings to enforce such a claim may be taken, notwithstanding that the owner or driver of the motor vehicle -

(a) is dead; or

(b) cannot be found; or

(c) is the spouse of the person whose death, or to whom bodily injury, has been caused.

(4) The inquiry and search under Subsection (1)(c) for the purpose of establishing the identity of the motor vehicle may be proved orally or by the affidavit of the person who made the inquiry and search.

(5) Where an award of damages is made by a court in respect of a claim under Subsection (1) that exceeds the amount of liability of the successor company specified in Section 49(2)(a), the court shall, at the time when it makes the award, determine against whom (if anyone) the excess shall be awarded, and an award under this subsection operates as a judgment against that person for all purposes.

(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.

(7) For the purposes of this Act, if the owner of a motor vehicle or his estate becomes liable, by way of damages, in respect of a motor vehicle for the death of or bodily injury to a person who is a worker within the meaning of any law relating to workers compensation, compensation under that law in respect of which a person is entitled to be indemnified by the owner or his estate is damages".

12. This section also requires that if a claimant is out of time to give notice of claim to the Defendant, sufficient cause must be shown before an extension of time is given. The Supreme Court in Graham Rundle -v- Motor Vehicle Insurance Trust (PNG) Limited (No1) [1988] PNGLR 20 said that the power of a Court under section 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 and taking into account all the circumstances of the case.

13. The jurisdictional basis of the National Court to decide the question of extension of time is found under section 54(6)(b) of the Motor Vehicle (Third Party Insurance) Act as oppose to the jurisdiction given to the Insurance Commissioner under 54(6)(a) of the Motor Vehicle (Third Party Insurance) Act. I will revert to this issue later on in this Judgment.

14. Turning to the question of what sort of considerations the Court should take into account to decide the question of extension of time, section 54(6) of the Motor Vehicle (Third Party Insurance) Act states "on sufficient cause being shown". What constitutes "sufficient cause" is determined from the circumstances of each case.

15. Perhaps a more concise definition of what is sufficient cause can be borrowed from His Honour Mr Justice Sawong’s Judgment in Dick Nauka -v- Motor Vehicles Insurance (PNG) Trust (1997) N1680 where His Honour said:

"The plaintiff bears the onus of establishing "sufficient cause". What is "sufficient cause" will depend on the reasons and explanation put forward by the plaintiff as to why he did not lodge his claim within the prescribed period, and why he allowed time to lapse. What is sufficient cause, would mean that each application must be considered on its own fact and merit. Thus the expression must be interpreted widely rather than narrowly. Of course one has to consider the justice of the case and would include a consideration of any prejudice that may or might be caused to the defendant by the delay".

16. In this regard, I have had the benefit of reading past Judgments of this Court to decide this issue. The first one is The Application of Sir Kepa Pupu (1992) N1077 where His Honour Mr Justice Woods (as he then was) considered that the reasons given for the request were not such that he should grant an extension of time as His Honour 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.

17. Secondly, in the National Court Judgment of His Honour Mr Justice Woods (as he then was) in The Application of Miawe Andakundi (1992) N1087 His Honour whilst noting that it took a length of time for the Applicant to get a copy of the Police Accident Report and that as a layman who did not know the legal requirements of making a claim against the Trust, found that the Applicant did not say when he actually received a copy of the Accident Report. His Honour also noted that in December 1990 that is 4 months after the accident he was charged in the District Court with a driving offence consequent upon the accident and he was found not guilty so he must have had knowledge of the Police Report at that time.

18. His Honour however considered that more importantly the Applicant was not just an ordinary layman or villager who did not understand matters, he was the driver of the PMV. As the driver of the PMV he had additional obligations such as he must have special tests to get a PMV driver’s licence and he is obliged to know his full legal obligations which included those set out under section 53 of the Motor Vehicles (Third Party Insurance) Act such as the duty to report accidents to the police and the Trust where death or bodily injury to a person is caused by a motor vehicle.

19. The Police Accident Report clearly showed that there were other persons injured in the accident apart from the Applicant. There was no evidence that the owner or the applicant as driver did make any such report. In his evidence the Applicant referred to the policeman who interviewed him in the hospital yet the Applicant did not go to hospital till 4 weeks after the accident. So whether the driver was injured or not there is a responsibility under the legislation for him to either report himself to the Trust the circumstances of the accident or ensure that his owner did so. So having failed in his legal obligations His Honour asked; how can the Applicant ask the Court to exercise its discretion in his favour almost 2 years after the event?

20. In the end, His Honour found that the Applicant had not given any good reasons for the Court to grant an extension of time and dismissed the entire the application.

21. The third case is Ovoa Rawa -v- Motor Vehicle Insurance Trust (PNG) Limited (1994) N1276, a Judgment of His Honour Mr Justice Injia (as he then was) where His Honour granted leave to the Applicant to give notice to the Defendant out of time. His Honour said that the phrase "sufficient cause" embodied a wide range of factors which may explain the delay in giving notice within time. In that case, the Applicant first relied on her lack of sophistication and ignorance of proper procedures under the said Act. His Honour said that this was a relevant factor. Secondly, His Honour considered that her physical disability caused by the accident which also restricted her mobility over the succeeding years and prevented her from pursuing her claim within time or within a reasonable time and said that this was also another relevant factor.

22. The third factor which His Honour considered peculiar in 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 Applicant’s husband. The Applicant said that she was unaware of what her husband’s relatives were doing for her. His Honour considered that his was also another relevant factor for the Court to take into account.

23. Finally was the question of prejudice to the Defendant as a result of the delay. His Honour referred to the Supreme Court Judgment of Graham Rundle (supra) at page 23 where His Honour Mr Justice Bredmeyer (as he then was) set out some of the policy reasons behind section 54(6). This section is intended to prevent prejudice to the Defendant. His Honour quoted the reasons set out by His Honour Mr Justice Bredmeyer where His Honour 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".

"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."

24. After carefully studying the Police Accident Report, His Honour was of the view that the Defendant would not completely lose the opportunity to enquire into the Plaintiff’s claim because first, the key vehicle involved here was the vehicle in which the Plaintiff was a passenger. Secondly, 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.

25. Thirdly, the driver was charged with dangerous driving under section 17(1) of the Motor Traffic Act. His case would have gone before the Traffic Court in Port Moresby. That information could be obtained from the Courthouse by the Defendant. Next, the driver and the owner of the vehicle were from nearby villages in Central Province. They could be located and questioned by the Defendant.

26. In the circumstances, His Honour was satisfied that the Applicant had shown sufficient cause for the delay in giving notice within time and granted the Applicant fourteen days to give notice of intention to make a claim to the Defendant under section 54(6) of the said Act.

REASONS FOR DECISION

27. Bearing all those cases which I have referred to above in mind, I now apply the principles set out in those cases to the present case, of course also taking into account the submissions of both counsel to decide the question of extension of time in this application.

28. Mr Kunai submitted that for the Applicant to succeed with his application for extension of time to give his notice of claim to the Defendant out of time, the Applicant must satisfy the following tests:

1. The application for leave must be made promptly;

2. There must be an arguable case; and

3. The Defendant will not be prejudiced in its defence of the action.

Whether application for leave made promptly.

29. Mr Kunai submitted that the application for extension of time or leave to extend time was filed promptly because whilst the application for extension of time to the Insurance Commissioner was refused on 24 May 2006, the Originating Summons was filed on 18 September 2007. This was about one year and five months later. He submitted that this is not a long or inordinate delay.

30. If the Court finds that there was delay, then, he submitted that there were reasonable reasons for the delay. First, the Plaintiff’s inability to pay the legal fees to able the lawyers to quickly file this application and secondly, the Applicant hails from a remote part of the Enga Province, that being Kandep where accessibility to Mt Hagen and to lawyers is difficult.

31. Accordingly, he submitted that the delay in filing this application has been satisfactorily explained and so the Applicant should not be hastily driven away by this Court in the pursuit of his claim against the Defendant.

32. On the other hand, Mr Peri of counsel of Defendant cited the case of Michael Ivia -v- Motor Vehicle Insurance Trusts [1995] PNGLR 183 and submitted that in application for extension of time, the Court should decide the application on the facts of each case. There, Kapi DCJ (as he then was) said that "The principles governing the exercise of discretion to extend time are set out in Rundle -v- Motor Vehicles Insurance (PNG) Trust (supra). The onus is on the plaintiff to establish "sufficient cause". This expression is to be widely interpreted. It deals with the justice of the case within the context of each case. This includes consideration of any prejudice that may have been caused to the defendant by the delay".

33. He made this submission because prior to this application, there was another application by another Applicant who was also one of the nine passengers and was injured in the same motor vehicle accident in the case of Sakame Yombone -v- Motor Vehicle Insurance Trust: OS No 534 of 2007 (Unnumbered & Unreported Judgment of 21 May 2008) where I granted the Applicant’s application for extension of time upon satisfying myself that there was a reasonable explanation for the default in giving the notice of claim to the Defendant.

34. He submitted that notwithstanding the fact that the Applicant in this case and the Applicant in Sakame Yombe’s case (supra) were both injured in the same motor vehicle, the Court should determine this application on its own facts and circumstances to decide the issue of extension of time.

35. Next, Mr Peri submitted that there is no evidence that the Applicant hails from a remote part of Papua New Guinea, that is, there is no evidence before the Court to say that Kandep in the Enga Province where the Applicant hails from is a remote place in Papua New Guinea. Hence, there is no evidence to support the Applicant’s claim that it was difficult for him to travel to Mt Hagen to speak to lawyers to pursue his claim for damages against the Defendant.

36. And even if there is evidence of remoteness, this is a new ground raised by the Applicant which was not raised in his earlier application for extension of time to the Insurance Commissioner. He submitted that in asking the Court to grant leave for extension of time, the Applicant is not entitled to introduce any new grounds for the delay in giving notice to the insurer than the ones given to the Insurance Commissioner. As such, the Applicant is not entitled to raise the ground of remoteness in this application and the Court should exercise its discretion by rejecting it or not taking it into account.

37. I deal with Mr Peri’s last submission on the introduction of new grounds for delay first. I reject this argument because of two reasons. First, by section 54(6)(a)&(b) of the Motor Vehicle (Third Party Insurance) Act, the Insurance Commissioner and the Court are two separate and distinct decision making bodies in respect of deciding the question of extension of time to give notice to the insurer of claims against the insurer by Applicants. Although they are two separate and distinct decision making bodies, in my view they exercise the same or concurrent jurisdiction and that is they decide the same question of whether or not to extend time to Applicants to give notice of claim to the Defendant outside the six months time limitation.

38. The onus is on the Applicant to show sufficient cause to the Insurance Commissioner or the Court as to the grant of leave to give notice of claim to the Defendant out of time.

39. In the Supreme Court Judgment of Graham Rundle’s case (supra), the Supreme Court inter alia held that a claimant making an application for extension of time in which to give notice of intention to make a claim pursuant to s 54(6) is not put to an election: he may apply once only to the Insurance Commissioner or to the Court. If an application to the Insurance Commissioner fails or is granted and not complied with, a further application may only be made to the Court. If an application to the Court is refused the only second chance is an appeal to the Supreme Court.

40. Secondly, this is not an application for judicial review to review that decision of the Insurance Commissioner to refuse the Applicant’s initial request for extension of time to give notice out of time to the Defendant. The distinction can be found in the case of Motor Vehicle Insurance PNG Trust -v- Dixon Popo as The Insurance Commissioner (1992) N1048. In that case, the Motor Vehicle Insurance Trust (Trust) applied for Judicial Review seeking an Order in the nature of certiorari to quash a decision of the Insurance Commissioner to grant an extension of time to a claimant, thus allowing the claimant to give notice of intention to claim against the Trust.

41. Under section 54(6) of the Motor Vehicles (Third Party Insurance) Act, it provides for statutory immunity from suit in the Trust's favour in the absence of notice of action within a prerequisite time after accident. Such time may be extended in the discretion of the Insurance Commissioner or a Court on sufficient cause being shown. The Commissioner considered an application to extend time in which to give such a notice of action and made a decision without the knowledge of the Trust. At the hearing, the Commissioner argued that he was under no obligation to hear the Trust in any event.

42. The Court considered the following issues:

1. Whether defendant is a public authority against whom judicial review lies;

2. Whether the rules of natural justice are applicable to defendant's decision; and

3. Whether defendant failed to comply with the rules of natural justice, specifically, the audi alteram partem rule in making his decision.

43. The Court held that:

1. The Commissioner in exercising powers pursuant to s 54(6) of the Act is such a public authority whose decisions are amenable to judicial review;

2. There is a right of immunity from suit in the Trust. That right is capable of being affected by extending an out of time notice for an action. The Commissioner or the Court may extend time for such notice or just cause being shown. Such expression "just cause" presupposes a duty to act judicially when determining whether or not to permit notice of action although past time; and

3. Where the Commissioner has application for extension of time to serve notice of motion pursuant to s 54(6) the duty to act judicially includes the requirement to give notice to the Trust as a body with a vital interest in the outcome. Consequently the Trust has a right to be heard.

44. I am of the view that if the Applicant had applied for Judicial Review to review the decision of the Insurance Commissioner to refuse his application for extension of time, then there would be a basis for the submission of the Defendant. That is, the Plaintiff’s grounds for review would be confined to the grounds placed before the Insurance Commissioner. He would not be entitled to raise any other grounds other than those given to the Insurance Commissioner and those grounds placed before the Insurance Commissioner would form the basis of the decision of the Insurance Commissioner to refuse the application for extension of time.

45. For these two reasons, I am of the view that the Applicant is entitled to introduce any new grounds or reasons for the application for extension of time before this Court. In this respect, the Applicant has given the following further grounds or reasons for the delay in giving the notice to the Defendant within the six months period:

1. The Police Accident Report was not ready until 5 October 2005. This was three months of delay from the date of the accident of 7 July 2005;

2. The Medical Report was not ready until 27 October 2005. This was more than three months of delay from the date of the accident of 7 July 2005; and

3. The Applicant hails from Kandep and Kandep is a remote place in Papua New Guinea, hence it is difficult for the Applicant to have easy access to lawyers in good time to pursue his claim for damages against the Defendant.

46. The question I have to decide is; are these three reasons given by the Applicant reasonable explanation for the delay in giving the required notice to the Defendant within the six months period?

47. Mr Peri urged me to reject these three reasons apart from the reasons that the Applicant is illiterate and has no money to pay lawyers’ fees in good time to pursue his claim. First he submitted that whilst it is conceded by the Defendant that there was a delay of about three months for the Applicant to collect the Police Accident Report from the Police and the Medical Report from the Doctor, the Applicant has not given any explanation for the delay between 27 October 2005 and 7 January 2006.

48. Even if the Applicant has explained the reasons for the delay, he submitted that there is no evidence that the Applicant is from Kandep and that Kandep is a remote place in Papua New Guinea. Alternatively, he submitted that Kandep is not a remote place in Papua New Guinea. It is easily accessible by road to and from Mt Hagen where the Applicant should have been able to travel to Mt Hagen in good time to speak to a lawyer there to pursue his claim for damages between 27 October 2005 and 7 January 2006. He has not done so.

49. Further to this argument, Mr Peri submitted that it is common knowledge that the compensation culture is deeply rooted in the Highlands region of Papua New Guinea and the Applicant should have known at once that he was entitled to claim some form of compensation from the owner of the truck or the Defendant for the injuries sustained from the accident and should have immediately pursued the claim through his lawyers without delay.

50. Lastly, he submitted that there has been an unexplained delay from 24 May 2006 to 18 September 2007 when the Originating Summons for this application was filed by the Applicant’s lawyers.

51. First, I am satisfied that there has been a reasonable explanation given by the Applicant for the delay in giving the required notice of claim within the period of six months. The Police Accident Report and the Medical Report were not immediately available until 5 October 2006 and 25 October 2006 respectively. These two documents are crucial documents to assist the Defendant to investigate the accident and the Applicant could not have given notice of claim to the Defendant without them.

52. I am also satisfied that the Applicant was unable to speak to a lawyer to pursue his claim for damages against the Defendant immediately after obtaining the Police Accident Report and the Medical Report because he was not aware of the legal requirement to give a notice of claim with six months of the date of the accident.

53. Next, I find that there is some evidence to suggest that the Applicant is from Kandep as noted from the Police Accident Report which stated that the accident occurred somewhere on the road near Kandep. Surely it is common knowledge that Kandep is in the Enga Province and geographically it is an isolated location where accessibility to adequate services such as legal services is scares. Thus, I reject the submissions of Mr Peri that the Applicant is not from a remote place in Papua New Guinea.

54. I consider that illiteracy of an Applicant can be a ground on which the Court may grant an extension of time to an Applicant to give notice to the Defendant out of time. This was the case in Raben Kalalyo -v- Motor Vehicle Insurance Trust (PNG) Limited [1996] PNGLR 368 where His Honour Mr Justice Sevua granted leave to the Applicant to give notice out of time after a period of one year and eight days of delay. His Honour said:

"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? No, 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 Hagen 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 an 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".

55. I accept the Applicant’s reason that he is illiterate and not aware of the requirement to give notice within six months of the date of accident but in accepting this reason, I also cannot ignore the submissions of Mr Peri on the last point, this being that it is common knowledge that the compensation culture or mentality is deeply rooted in the Highlands region of Papua New Guinea and the Applicant should have been aware of his right to claim some form of compensation from the owner of the truck or the Defendant for the injuries sustained from the accident. He should have immediately pursued the claim through his lawyers without delay.

56. Mr Peri’s submission on this point should not be dismissed quickly or brazed aside lightly. I consider that this submission has some truth in it and must be given some consideration when the Court is considering applications to extend time to give notice of claim to the Defendant out of cases emanating from this part of the country.

57. There is no doubt in my mind that any ordinary person living not only in the Highlands region of Papua New Guinea but also in any part of Papua New Guinea knows what compensation is. Generally, compensation to them may be cash (money) or in kind given to them for any wrong done to them by someone else. To me, in the present case it is not so much of the Applicant not knowing what compensation is but how to go about claiming it from the Defendant. Thus, whilst I agree that the Court may take into account the compensation culture or mentality of people, it is not the sole determinative factor because the Court is entitled to consider all other relevant factors before a final decision is made.

58. And so taking all these considerations into account, I find that this is not a case where the Applicant sat back and did nothing about his claim as was the case in Dick Nauka (supra) where His Honour Mr Justice Sawong (as he then was) found that the accident happened on 12 April 1995 and the Applicant did nothing about his claim until he was informed in November 1995 of his right to make a claim. He then waited till May 1996 to see his lawyers to make a claim. His lawyers did not make any application to the Commissioner promptly.

59. Although the Applicant gave two reasons for the delay, they being he had no money and was not aware of his right to make a claim against the insurer for the injuries sustained nor the requirement to give notice of claim within six months of the accident and was seeking financial assistance to engage lawyers to pursue his claim, His Honour was not satisfied that those explanations established sufficient cause.

60. On the other hand, I find that the Applicant in this case did what was essentially required of him to bring to the notice of the Defendant his intended claim by first obtaining the two Reports (Police and Medical) and secondly seeing a lawyer to pursue the claim although he was late by four days when he arrived at the lawyers’ office. Although his lawyers immediately wrote to the Insurance Commissioner and requested an extension of time which was refused, to my mind, what the Applicant did shows that he did not sit on his right to claim compensation from the Defendant.

61. Then the lawyers for the Applicant were unable to immediately file this application in good time because he had no money to pay for the lawyers fees. I gather that when he was able to afford the legal fees, his lawyers then filed this application on 18 September 2007. I accept this reason for the delay between the time the Insurance Commissioner refused his application for extension of time and the date of filing this application.

Is there an arguable case?

62. The next question is; is there an arguable case? I have no difficulty in finding that there is an arguable case. There is no dispute that there was a motor vehicle accident at that relevant time. The Applicant is seeking to sue the Defendant for damages as a result of the physical injuries received from the accident. Whether the Applicant’s claim will be successful is a matter for the Court to decide at another time. For now I am to decide if there is an arguable case and as I said, there is one.

Will there be any prejudice to the Defendant in its defence of the action?

63. Next is the question of whether there will be any prejudice to the Defendant in its defence of the action.

64. Mr Peri submitted that the Defendant will be prejudiced in its defence if leave is granted to the Applicant to give notice out of time because the identity of the other motor vehicle is not known. The Police Accident Report of 5 October 2005 did not even give details or description of this motor vehicle such as the registration number, the name of the driver and owner of the motor vehicle except a general description that it was a highway truck. Hence it would be difficult for the Defendant to investigate the alleged accident and prepare its defence. It would also be difficult to locate the particular vehicle and the driver of the said vehicle for the trial.

65. Mr Kunai submitted that the Defendant is not being prejudiced because there is already sufficient information in the Police Accident Report which show that there were two motor vehicles involved in the accident. One belonging to a Ski Tupia which was driven by a Potbakali Kandato of which the Applicant was one of the passenger and the other is a highway truck. Although there is no information on this highway truck, he submitted that more information will come to light when the proper proceeding is issued if the Court grants leave.

66. I accept the submissions made by Mr Kunai for the Applicant. As this is only an application seeking leave of the Court to give notice of claim to the Defendant, there is a possibility that more information about this highway truck that is not readily available to both parties now may become available at the substantive proceeding if leave is granted to the Applicant to give notice of claim out of time. Otherwise, in my view there is sufficient information in the Police Accident Report of the first vehicle to assist the Defendant to investigate and prepare its defence.

CONCLUSION

67. At the end of the day, the Court ultimately has the discretion to either grant or refuse the application. Thus, taking all those considerations into account and weighing them up, I find that the considerations favouring the grant of the application out weigh the considerations against it. Therefore, I am satisfied that the Applicant has shown sufficient cause for leave to be granted to give notice of claim out of time and I so order.

ORDERS

68. Accordingly, I grant the Applicant’s application and make the following formal Orders of the Court:

1. Leave is granted to the Applicant to give notice of claim to the Defendant within twenty one (21) days from the date of this Order.

2. No Order as to costs.

3. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

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Paulus Kunai Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant