N11612
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO 176 OF 2024 - IECMS

YAKOP LAMA for himself and on behalf of dependants of deceased, JORDAN WIN
Plaintiff

V

MOTOR VEHICLE INSURANCE LIMITED
Defendant 

WAIGANI: CARMODY J
26 NOVEMBER 2025

APPLICATION FOR EXTENSION OF TIME – Motor Vehicles (Third Party Insurance) Act 1974 s. 54 (6)(b) – notice of an intention to make a claim must be given within 6 months - extension may be granted upon “sufficient cause” for the delay being demonstrated – “claimant” must have a cause of action

LIMITATION OF ACTIONS – Wrongs (Miscellaneous Provisions) Act Chapter 297 s. 31; death due to motor vehicle accident – action must be commenced within three years after death – plaintiff’s cause of action is statute barred - reasons for statutory time limits

Brief Facts

The deceased was aged just 4 months old when, on 4 June 2016, he suffered serious injuries when a truck ran into a PMV bus in which he was with his mother. He died a year later, on 5 June 2017, after 12 months of medical treatment. The deceased’s family wished to make an insurance claim for damages as a result of the death of their son.

Notice of any insurance claim must be given to the defendant, within 6 months of the occurrence out of which the claim arose -  s. 54 (6) of the Motor Vehicles (Third Party Insurance) Act 1974. The family mistakenly believed the claim was being dealt with by third parties. It was not and no notice had been given. The plaintiff, on behalf of the family wrote to the Insurance Commissioner seeking an extension of time to give the notice. The Commissioner refused on the basis that the claim was statute barred by the Wrongs (Miscellaneous Provisions) Act Chapter 297. s. 31. 

The plaintiff then turned to the Court seeking an extension of time. The Motor Vehicles (Third Party Insurance) Act 1974 s. 54 (6)(b) provides that an extension may be granted if an applicant gives an explanation which amounts to “sufficient cause” for the delay. The plaintiff provided comprehensive reasons for the delay. 

However the plaintiff was not a “claimant” pursuant to the Motor Vehicles (Third Party Insurance) Act 1974 as the plaintiff’s claim was statute barred because the action must be commenced within 3 years after the death of the deceased - Wrongs (Miscellaneous Provisions) Act Chapter 297. s. 31. 

Held:

Even if the plaintiff did give “sufficient cause” he was not “a claimant” within the meaning of the Motor Vehicles (Third Party Insurance) Act 1974 s. 54(6)(b). This was because the cause of action was statute barred pursuant to the Wrongs (Miscellaneous Provisions) Act Chapter 297 as it had not been commenced within 3 years after the death.

Cases cited
Ambo v Motor Vehicle Insurance (PNG) Trust [2002] PGSC 21; SC681
Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20; SC347
Inakambi Singorom v Klaut [1985] PNGLR 238
In the matter of an Application by Sance Richard pursuant to Section 54(6)(b) of the Motor Vehicles (Third Party) Insurance Act, Chapter 295 (2017) N7045
Taemae v Motor Vehicle Insurance Ltd [2013] PGSC 8; SC1224 (28 March 2013)

Counsel
J. Kep for the plaintiff
M. Pint for the defendant

JUDGMENT

1.	CARMODY J: On 17 of July 2024, the plaintiff filed both an originating summons and a notice of motion seeking an order extending the time in which to give notice of intention to make an insurance claim for damages to the defendant, Motor Vehicle Insurance Limited (“MVIL”), pursuant to section 54(6)(b) of the Motor Vehicles (Third Party Insurance) Act 1974. 

1.	I heard the plaintiff’s notice of motion on 3 September 2024. Both parties were represented by counsel. The defendant opposed the application based on the Wrongs (Miscellaneous Provisions) Act Chapter 297 s. 31.

2.	The decision was reserved.

BACKGROUND

2.	On 4 June 2016 the deceased, who was 4 months old, was with his mother on board a PMV bus that was parked on the roadside outside Kandep High School. The headmaster of the school was driving a truck carrying students and staff of the school. He ran into the PMV bus which caused injuries to the deceased. The headmaster immediately drove off and subsequently had another accident which caused death and severe injuries to those on board.

3.	The deceased suffered severe head injuries as a result of the first accident and was hospitalised. He died a year later on 5 June 2017 due to complications arising from the accident after 12 months of medical treatment. The family wished to make an insurance claim for damages for the death of their son.

4.	For the family to make the insurance claim there were two prerequisites. First, notice had to be given to MVIL within 6 months of the death of the deceased - Motor Vehicles (Third Party Insurance) Act, Chapter 295 s. 54 (6). Second, they had to commence court proceedings within 3 years of the death of the deceased - Wrongs (Miscellaneous Provisions) Act Chapter 297 s. 31.

5.	The deceased’s family believed the relevant authorities were dealing with the insurance claims in relation to both the first and second accidents. They realised their mistake after discovering that only the claim with respect to the second accident had been dealt with by the authorities. 

6.	On 20 November 2021 the plaintiff, representing the family, wrote to the Insurance Commissioner seeking an extension of time to make a claim against the defendant. On 5 January 2022 the Office of the Insurance Commissioner declined the plaintiff’s application for extension of time on the basis that the matter was statute barred under s. 31 of the Wrongs (Miscellaneous Provisions) Act. The plaintiff was told to seek an extension from the Court.

7.	The plaintiff filed both an Originating Summons and a Notice of Motion on 17 July 2024 in this Court seeking “An order extending the time in which to give a notice of intention to make a claim for damages against the defendant, MVIL, pursuant to Section 54(6)(b) of Motor Vehicles (Third Party Insurance) Act, Chapter 295.”

Motor Vehicles (Third Party Insurance) Act, Chapter 295

8.	The Motor Vehicles (Third Party Insurance) Act 1974 s. 54 (6) requires that a notice of intention to make a claim be given by the claimant to MVIL within six months of the cause of action arising:

(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.
								(emphasis added)

9.	That six-month notification period is important as stated in Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20; SC347 per Bredmeyer J.:

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. 

10.	I might add that it is also hoped that MVIL uses that time to also consider whether meaningful negotiations should be held with a view to settling the matter – particularly when MVIL’s opinion, on the material available to it, is that the issue of liability is clear.

11.	The six month period can be extended if an applicant demonstrates “sufficient cause” to grant the extension – s. 54 (6)(b). In other words, if an applicant can demonstrate to a Court that there were good reasons for failing to give the notice in time a Court may grant an extension.

12.	The plaintiff deposes to a number of reasons for the delay including:

(i)	The focus and the attention was on the second accident than the first one. The school authorities, police community and everyone was focused on the second accident caused by the Dyna of the High School driven by crazy Head Master than this one because the second accident was so fatal involving many students and teachers from Kandep High School.

(ii)	Also the parents of late Jordan Win are uneducated so they thought the Police and authorities were attending to their case, instead they missed out completely. We only realized that nothing was done to our claim in pursuing this matter with MVIL when we started inquiring.

(iii)	In 2018, we made our inquiry with OIC Traffic at Wabag and confirmed that deceased Jordan Win name was not included in the Police Accident report No.32/2016, so OIC Traffic rectify and confirm deceased was victim of the accident.

(iv)	 This is a case of an oversight and negligence on the part of the administration and board of Kandep High School and Police who have pledged to assist us making claim against MVIL, and partly blame ourselves because we are illiterate and even we do not have access to consultant and legal counsel to seek help.

(v)	 I cannot be able to afford lawyer to act on this case immediately after receiving the letter from the Insurance Commissioner, so I took some time to do fundraising.

13.	The plaintiff’s reasons were comprehensive. The authorities have long held that time can be extended in appropriate circumstances - Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20; Taemae v Motor Vehicle Insurance Ltd [2013] PGSC 8; SC1224; In the matter of an Application by Sance Richard pursuant to Section 54(6)(b) of the Motor Vehicles (Third Party) Insurance Act, Chapter 295 (2017) N7045.

14.	Although the reasons deposed to by the plaintiff for the delay may have been sufficient to grant leave to extend time (I express no definitive view on that point) there is an initial insurmountable difficulty faced by the plaintiff which is addressed below. 

Wrongs (Miscellaneous Provisions) Act Chapter 297

15.	The plaintiff’s intention no doubt, if leave is granted to give notice, is to then file proceedings in court seeking damages. However, any claim in court proceeding requires the plaintiff to establish its cause of action. In the sad circumstances of this case the cause of action is statute barred due to the passage of time. Section 31 of the Wrongs (Miscellaneous Provisions) Act Chapter 297 applies. Part IV of that Act is headed “Wrongful Act or Neglect Causing death”. Section 31 states:

Limitation of actions under Part IV.

Only one action under this Part lies for and in respect of the same subject-matter of complaint, and every such action must be commenced within three years after the death of the deceased person.
																					(emphasis added)

16.	The cause of action accrued on 5 June 2017. Pursuant to s. 31 of the Wrongs (Miscellaneous Provisions) Act 1975 the last day for bringing an action against the defendant fell on 4 June 2020. The plaintiff’s claim has been statute barred since June 2020. The claim is out of time. 

17.	What follows from this is that the plaintiff is not a “claimant” for the purposes of the Motor Vehicles (Third Party Insurance) Act 1974. Section 54 specifically refers to a “claimant”. A claimant can only commence proceedings on the basis of a cause of action. Without that there can be no claim before a Court.

18.	In Ambo v Motor Vehicles Insurance (PNG) Trust [2002] PGSC 21; SC681 the Supreme Court dismissed the appeal and affirmed the decision and reasoning of the National Court. The trial Judge explained the “nexus” between the two Acts as follows: 

I hold that in any legal proceedings where a person sues for damages in respect of a claim pursuant to Section 54 of the Motor Vehicles (Third Party Insurance) Act, the statutory time limit applicable is three years in pursuant of Section 31 of the Wrongs Miscellaneous Provisions Act. A claim or action for damages in respect of the death of, or bodily injury caused to a person by or arising out of the use of a motor vehicle is a claim for damages under the Miscellaneous Provisions Act. Section 31 of the Wrongs Miscellaneous Provisions Act defined third party policy of insurance that is a third party policy within the meaning of the Motor Vehicles (Third Party Insurance) Act. Again, that provision provides a nexus, between the two legislation. Therefore, there can be no doubt in anyone’s mind that in a suit for damages for death or personal injury arising out of a motor vehicle accident the suit is brought under the Wrongs Miscellaneous Provisions Act.

19.	Unlike the Motor Vehicles (Third Party Insurance) Act where there is a power to extend the time for filing a notice there is no such power in the Wrongs (Miscellaneous Provisions) Act. The three-year period is mandatory. There is no judicial power to extend the time to commence proceedings under that Act.

20.	In Inakambi Singorom v Klaut [1985] PNGLR 238 the Honourable Chief Justice stated:

Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid… I have said the above to emphasise that a court cannot go beyond its powers by using maxims of interpretation or rules of interpretation to override clear and explicit parliamentary intent in legislation.

21.	In this case the Parliamentary intention is clear. The plaintiff’s cause of action is statute barred pursuant to s. 31 of the Wrongs (Miscellaneous Provisions) Act 1975.

22.	Similar legislation has existed for many years in many countries throughout the world. The reasons for limitations such as those found in the Acts discussed in these reasons, and in many other Acts, can be generally distilled down to the following:

(a)	Preservation of Evidence: with the passage of time, evidence can be lost, memories fade, and witnesses die or otherwise become unavailable. Limitation periods work to ensure cases are decided on reliable evidence, to the extent that that is possible; and
(b)	 Certainty and Finality: limitation periods provide certainty for people, businesses, government bodies and other entities by ensuring that, after a certain period, they are no longer at risk of being sued for past actions. This allows people and society to move on without indefinite fear of litigation; and
(c)	Encouragement of Diligence: Because of limitation periods claimants must pursue their claims promptly, which is fair to all parties. Claimants cannot expect courts and other litigants to deal with matters from years ago when all evidence and witnesses have long disappeared; and
(d)	Stability: by assuring that those who have dealt in good faith with property will be made secure in their possession after a certain period of time;
(e)	Public Policy: There is a general public interest in resolving disputes in a timely manner and in providing closure to all – both the plaintiffs and defendants.

23.	At this point I note that on 1 August 2024 the defendant filed an Affidavit in Response by Mosley Elly. Mr Elly stated that the defendant opposes the plaintiff’s application on the basis that the substantive cause of action against the defendant was time barred. He deposed as follows: 

8. I am verily advised that even if the leave is granted to lodge section 54 (6) Notice, the substantive cause of action against the Defendant is time barred or is out of time. Motor vehicle accident took place on 04th June 2016 and the deceased died on 05th June 2017.

9. I am further advised that the cause of action occurred on 05th June 2017 and the time limitation under Section 31 of the Wrongs (Miscellaneous Provisions) Act 1975 lapsed on 05th June 2020.

10. As such, even if this Court grant leave to the Plaintiff, it will serve no purpose as the substantive claim is statute barred under the relevant law.

12. To save Court’s time and all parties costs and resources, leave should be refused as the substantive claim is statute barred.

24.	I note that Ms Pint, counsel for the defendant, made the same submissions. Those submissions were correct in law. It seems that the plaintiff may have relied on the letter of the Office of the Insurance Commissioner. That letter provided incorrect information. As I have explained in this judgment there is no power to extend time provided for in the Wrongs (Miscellaneous Provisions) Act 1975. I take note of the information provided by the Office to the plaintiff and in the circumstances of this case I order that each party bear their own costs.

Orders:

i.	The plaintiff’s application for leave for an extension of time to serve the notice of intention to claim on the defendant is refused.

ii.	OS 176 of 2024 is dismissed in its entirety as the cause of action is statute barred pursuant to s. 31 of the Wrongs (Miscellaneous Provisions) Act Chapter 297 s. 31.

iii.	Each party is to bear their own costs.

iv.	The file is to be closed.

________________________________________________________________
Lawyers for the plaintiff: Font & Bleau Lawyers
Lawyers for the defendant: In-House Lawyers for Motor Vehicles Insurance Limited