Joe Kerowa v Motor Vehicles Insurance Limited (2010) SC1100

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Gabi & Hartshorn JJ
• Judgment Date: 18 November 2010
• Court: Supreme Court
• Citation: (2010) SC1100
• Docket Number: SCA 14 OF 2010
• Year: 2010
• Judgement Number: SC1100

Full Title: SCA 14 OF 2010; Joe Kerowa v Motor Vehicles Insurance Limited (2010) SC1100

Supreme Court: Kirriwom, Gabi & Hartshorn JJ

Judgment Delivered: 18 November 2010

SC1100

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 14 OF 2010

BETWEEN:

JOE KEROWA

Appellant

AND:

MOTOR VEHICLES INSURANCE LIMITED

Respondent

Waigani: Kirriwom, Gabi & Hartshorn JJ

2010: 28th June,

: 18th November

APPEAL – estoppel – s.54 (6) Motor Vehicles (Third Party Insurance) Act – whether estoppel able to be invoked in respect of a statutory condition precedent

Facts:

The Appellant, Mr. Joe Kerowa, appeals against the dismissal of his National Court proceeding against the Defendant, Motor Vehicles Insurance Ltd (MVIL). The proceeding sought damages for personal injuries sustained in a motor vehicle accident. The proceeding was dismissed as it was found that the Appellant had failed to provide to MVIL the requisite notice of intention to make a claim pursuant to s. 54 (6) Motor Vehicles (Third Party Insurance) Act.

Held:

An estoppel cannot be invoked in respect of a statutory condition precedent. The appeal is dismissed. The Appellant shall pay the Respondent’s costs of and incidental to this appeal.

Cases cited:

Papua New Guinea Cases

Graham Rundle v. MVIT [1988] PNGLR 20

Paul Kumba v. Motor Vehicles Insurance (PNG) Trust (2001) N2132

MVIL v. Sanage Kuri (2006) SC825

Overseas Cases

Bataman v. Hunt (1904) 2 KB 530

Hughes v. Metropolitan Railway Co. (1877) 2 App Cas 439

Kosmar Villa Holdings Plc v. Trustees of Syndicate 1243 [2008] EWCA Civ 147

Longman v. Bath Electric Trams (1905) 1 Ch 646

Pickard v. Sears (1837) 6 Ad & E 469

Wylie v. Wake [2000] EWCA Civ 349

Counsel:

Mr. P. M. Dowa, for the Appellant

Mr. K. J. Peri, for the Respondent

18th November, 2010

1. BY THE COURT: The Appellant, Mr. Joe Kerowa, appeals against the dismissal of his National Court proceeding against the Defendant, Motor Vehicles Insurance Ltd (MVIL). The proceeding sought damages for personal injuries sustained in a motor vehicle accident. The proceeding was dismissed as it was found that the Appellant had failed to provide to MVIL the requisite notice of intention to make a claim pursuant to s. 54 (6) Motor Vehicles (Third Party Insurance) Act (MVIL Act), (Notice).

2. The Appellant relies upon 5 grounds of appeal. All of the grounds concern whether the trial Judge erred in finding that MVIL was not estopped from raising the issue of whether the Appellant had given Notice in time.

3. Section 54 (6) MVIL Act is as follows:

“(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.”

Brief facts

4. It is common ground that:

a) the Appellant lodged his Notice with MVIL on 22nd December 2004, which was 6 days after the further period of time allowed by the Insurance Commissioner.

b) by letter dated 7th January 2005 MVIL informed the Appellant that his Notice had been given outside of the period of time allowed by the Insurance Commissioner and that liability was denied.

c) on 16th August 2006 MVIL wrote to the Appellant on a without prejudice basis and offered to settle the claim for K10,000.

d) on 4th October 2006 the Appellant commenced District Court proceedings seeking leave to give his Notice out of time pursuant to s. 54 (6) (b) MVIL Act.

e) on 24th October 2006 MVIL wrote to the Appellant's lawyers and advised that the Appellant gave notice within time after approval from the Insurance Commissioner, that MVIL had been liaising directly with the Appellant and that a settlement offer had been made but that no response had been received. MVIL further asked the Appellant's lawyers to discontinue proceedings as there was no basis for the application.

f) on 21st July 2008 the District Court proceeding was dismissed for want of prosecution.

g) on 18th June 2008 the National Court proceeding was filed by the Appellant. MVIL pleads in its defence that the Appellant commenced the proceeding without satisfying the condition precedent required by s. 54 (6) MVIL Act.

Estoppel

5. The Appellant’s submission that MVIL is estopped from raising the issue of whether the Appellant had given Notice in time, only has a likelihood of succeeding if the doctrine of estoppel is able to be invoked in respect of a condition precedent that is prescribed by a statute, such as that prescribed by s. 54 (6) MVIL Act as to Notice.

6. That s. 54 (6) MVIL Act does prescribe a condition precedent as to Notice, has been so held by this court in Graham Rundle v. MVIT [1988] PNGLR 20 and MVIL v. Sanage Kuri (2006) SC825.

7. The cases cited by the Appellant in support of his estoppel submission, Bataman v. Hunt (1904) 2 KB 530, Longman v. Bath Electric Trams (1905) 1 Ch 646 and Pickard v. Sears (1837) 6 Ad & E 469 are not on point as to whether an estoppel can be invoked in respect of a statutory condition precedent.

8. In Paul Kumba v. Motor Vehicles Insurance (PNG) Trust (2001) N2132, Davani J. quoted the following passage from Halsbury’s Laws of England (Fourth Edition) Volume 16 paragraph 926 which in our respectful view, is on point:

“The doctrine of estoppel may not be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the court’s statutory jurisdiction under an enactment which precludes the parties from contracting out of the provisions.”

9. The proposition that an estoppel cannot be invoked in respect of a statutory condition precedent has further support from the decision of the English and Wales Court of Appeal in Wylie v. Wake [2000] EWCA Civ 349. That case concerned the giving of a notice of proceedings under s.152 (1) (a) Road Traffic Act 1988. The Court stated amongst others, that s. 152 (1) (a) is not a statutory defence but is a condition precedent to liability and as such, what is being considered is, “a state of affairs which by statute had to exist before the relevant insurers became liable to pay.” The Court held that in such circumstances, no...