Cathy Robert Kolum as Next Friend of Salome Robert, Jamila Robert and Peter Kolum v Motor Vehicles Insurance (PNG) Trust Limited (2000) N1998

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 27 October 2000
• Court: National Court
• Citation: [2000] PNGLR 40
• Year: 2000
• Judgement Number: N1998

Full Title: Cathy Robert Kolum as Next Friend of Salome Robert, Jamila Robert and Peter Kolum v Motor Vehicles Insurance (PNG) Trust Limited (2000) N1998

National Court: Sevua J

Judgment Delivered: 27 October 2000

N1998

PAPUA NEW GUINEA

[National Court of Justice]

WS 362 of 2000

BETWEEN

CATHY ROBERT KOLUM as next friend of

SALOME ROBERT, JAMILA ROBERT and PETER KOLUM

Plaintiff

AND

MOTOR VEHICLES INSURANCE (PNG) TRUST LIMITED

Defendant

Waigani: Sevua, J

2000: 5th July and 27th October

PRACTICE AND PROCEDURE – Notice of intention to make a claim against Motor Vehicles Insurance (PNG) Trust – Motor Vehicle accident – Personal injuries – “Purported notice” given within statutory time limit – Section 54 (6) Motor Vehicles (Third Party Insurance) Act, Ch.295.

WORDS AND PHRASES – “Notice” – Meaning of – Whether notice means and includes all the relevant particulars of accident, motor vehicle, etc, etc. – Whether notice given within the 6 months time limit without such particulars amount to no notice – Section 54 (6) Motor Vehicle (Third Party Insurance) Act, Ch.295.

HELD

1. The phrase, “claim for damages” referred to in Rundle v. MVIT [1988] PNGLR 20 does not have the same meaning as giving notice pursuant to s.54 (6) of the Motor Vehicles (Third Party Insurance) Act, Ch. 295. A “claim for damages” and a “notice of intention to make a claim” are two distinct matters.

2. “Notice” in its ordinary meaning means writing to and informing the Trust of one’s intention to make a claim against the Trust. It does not mean and does not include all the particulars of the vehicles and/or circumstances of the accident.

3. It is not desirable to endeavor to formulate by judicial pronouncement a definition of “notice” instead it is desirable to guard against the dangerous ambition of attempting to define “notice” as the attempt to do so may include what the law did not intend to include.

4. It will be an injustice to claimants who have complied with the law by giving notice within the statutory time limit, to have their claims dismissed for failure to provide sufficient details of an accident in their notices.

5. The defendant’s application is dismissed, as being misconceived, unmeritorious and an abuse of the Court’s process.

Case cited-

Rundle v. Motor Vehicle Insurance (PNG) Trust No. 1 [1988] PNGLR 20

Laime v. Motor Vehicle Insurance (PNG) Trust [1995] PNGLR 224

Ume v. Motor Vehicle Insurance (PNG) Trust, Unreported, N.1684

Nui v. Motor Vehicle Insurance (PNG) Trust, Unnumbered and unreported

Tende v. Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 379

M. Pokia for Applicant/Plaintiff

P. Korowi for Respondent/Defendant

SEVUA, J: This is an application by the defendant seeking orders that the proceedings be dismissed, and the plaintiff pays the defendant’s costs.

The evidence in support of this application came from the affidavit of Mr Muriso Pokia, counsel for the applicant, sworn on 6th June, 2000. Basically, counsel said in his affidavit that the plaintiff’s lawyer forwarded a letter dated 20th July, 1999 to the defendant’s lawyer “purportedly” giving notice of the plaintiff’s intention to make a claim against the defendant. That letter was received by the defendant on 26th July, 1999. On 20th September, 1999, the defendant forwarded a reply to the plaintiff’s lawyer advising, “your notice does not comply with the requirement under Section 54 of the Act, in that it contains insufficient details of the accident. As such, we (sic) unable to accept the same. Liability is not admitted.” The plaintiff’s lawyer did not respond, but proceeded to file the writ of summons in this action.

The respondent has filed an affidavit sworn by Mr Philemon Korowi, counsel for the respondent, sworn on 28th June, 2000. In a letter dated 20th July, 1999, the plaintiff’s lawyer said they acted for Cathy Robert, wife of the deceased Peter Kolum, and daughters, Salome and Jamila Robert. The author of that letter, Mr Dennis Igoleni said at paragraph two, “Pursuant to Section 53 (sic) of the Motor Vehicles (Third Party Insurance) Act, we hereby give notice that it is the intention of Mrs Cathy Robert to make a claim against the Motor Vehicles Insurance (PNG) Trust for compensation.” In paragraph three of the letter, Mr Igoleni said, “Mr Robert Kolum died at 10:40pm on 23rd March, 1999 at the Mendi General Hospital after a PMV truck knocked him off a government vehicle which he was travelling in at Kiburu Village, outside Mendi Town on the Mendi to Mt Hagen Highlands Highway.” The plaintiff’s lawyer advised the defendant that all supporting documents would be forwarded after they have been received.

Mr Korowi has annexed a copy of his letter dated 22nd February, 2000, (Annexure “B”) to the defendant in response to its letter of 25th September, 1999. In that letter, Mr Korowi said, “Section 54(6) of the Motor Vehicles Insurance (Third Party Insurance) Act, Chapter 295, does not strictly require that an injured, or a representative of a deceased, give sufficient details of the accident. As long as a claimant gives notice of the claim to Motor Vehicle Insurance...