Motor Vehicles Insurance Ltd v Sanage Kuri (2006) SC825

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Gavara-Nanu J, Lay J
• Judgment Date: 02 March 2006
• Citation: (2006) SC825
• Docket Number: SCA 7 of 2005
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC825

Full Title: SCA 7 of 2005; Motor Vehicles Insurance Ltd v Sanage Kuri (2006) SC825

Supreme Court: Injia DCJ, Gavara-Nanu J, Lay J

Judgment Delivered: 2 March 2006

SC825

PAPUA NEW GUINEA

The Supreme Court of Justice

SCA 7 of 2005

Between

MOTOR VEHICLES INSURANCE LTD.

Appellant

And

SANAGE KURI

Respondent

INJIA DCJ, GAVARA-NANU J AND LAY J

PORT MORESBY

1st September 2005

2nd March 2006

LIMITATION OF ACTIONS-Frauds and Limitations Act s16-actions for things done under statutes-notice of intention to claim-notice to Motor Vehicles Insurance Limited-notice under Motor Vehicles (Third Part Insurance)Act Ch 295 s54(6)-nature of notice-notice condition precedent to issue of writ-notice not element of cause of action.

Facts

The Plaintiff was injured in a motor vehicle accident on 16th March 1996. Notice was given to the Appellant on 22nd December 2003 pursuant to Motor Vehicles (Third Party Insurance) Act s54(6) and pursuant to an extension of time granted by the Insurance commissioner on 10 December 2003. The Respondent commenced proceedings on 20th September 2004. The Appellant’s application to strike out the proceedings as being barred by the Frauds and Limitations Act was dismissed on the basis that the notice under Motor Vehicles (Third Party Insurance) Act s54(6) was an essential element of the Respondent’s cause of action and until that notice was given the cause of action had not accrued for the purposes of the Frauds and Limitations Act s16.

Held

Notice pursuant to Motor Vehicles (Third Party Insurance) Act s54(6) is not an element of the cause of action of tort, it is a condition precedent to the right to issue a writ against the Appellant. Such notice does not have any affect on when the cause of action arose. Hence the cause of action accrued on 16th March 1996 for the purposes of the Fraud and Limitations Act s16.Therefore the action was statute barred. Appeal allowed, action in the National Court dismissed. Respondent to pay the Appellants costs of the appeal and the action in the National Court.

Cases Cited

Rundle v MVIL [1988] PNGLR 20 Paul Tohian, Minister for Police and the State v Tau Liu SC566; Patterson Lowa, Minister for Minerals and Energy v Wapula Akipe & Ors [1992] PNGLR 399;

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Appearances

J. Naipet for the Appellant

M. Konge for the Respondent

By the court: This is an appeal against an interlocutory judgment of his Honour Cannings J. in the National Court in Mt. Hagen on the 21st of December 2004.

The respondent is alleged to have received injuries in a motor vehicle accident in Mt. Hagen on the 16th of March 1996. The respondent first lodged his notice of intention to claim with the appellant on or about the 27th of September 2002. The respondent's notice was rejected by the appellant on the basis that it was given outside of the six months pursuant to the provisions of s54(6) of the Motor Vehicles (Third-Party Insurance) Act, Chapter 295 (“the Act”, which provides:

(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.

The respondent then sought an extension of time from the Insurance Commissioner, who granted him an extension of time on 10 December 2003, to give his notice within 28 days. The extension of time was granted by the Insurance Commissioner more than seven years after the alleged accident.

After obtaining the extension from the Insurance Commissioner, the respondent gave notice to the appellant on the 22nd of December 2003. The respondent then filed a writ of summons on the 20 September 2004, which is approximately 8 years after the alleged injuries were received.

A defense was filed by the appellant and served on the respondent's lawyer pleading that the claim was filed outside of the six years permitted by the Frauds and Limitations Act s16 for bringing an action in tort; and therefore it was statute barred.

Section 16(1) of the Frauds and Limitations Act provides:

16. Limitation of actions in contract, tort, etc.

(1) Subject to Sections 17 and 18, an action—

(a) that is founded on simple contract or on tort; or

(b) … or

(c) …; or

(d) …,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

The appellant filed a notice of motion on the 25 October 2004 seeking to dismiss the proceedings for being statute barred. The motion was heard on 12th November 2004 and on 21 December 2004 the motion was dismissed. This appeal is from that order.

In the court below, the judge reasoned that

“the giving of notice of a claim to the defendant is an integral part of the cause of action of a person who has been injured in a motor vehicle accident and takes action under section 54 of the Motor Vehicles ( Third-Party Insurance) Act. (Rundle v MVIT [1988] PNGLR 20, Supreme Court, Kidu CJ, Bredmeyer J and Amet J.”)

In the present case, notice was given to the defendant, in accordance with the Insurance Commissioners approve on the 22 December 2003. Giving of that notice was an essential ingredient or element of the plaintiff's cause of action. So that is the date when the cause of action accrued.”

With respect this is where his Honor fell into error, as a perusal of what was actually held in the case of Rundle v MVIT [1988] PNGLR 20 (Kidu Cj, Bredmeyer & Amet JJ) discloses....