MVIL v Martha Kuma

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Jalina J, Sawong J
• Judgment Date: 09 August 2000
• Citation: [2000] PNGLR 1
• Court: Supreme Court
• Year: 2000
• Judgement Number: SC650

Full Title Motor Vehicles Insurance Limited v Martha Kuma (2000) SC650

Supreme Court: Kapi DCJ, Jalina J, Sawong J

Judgment Delivered: 9 August 2000

SC650

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCA 62 of 1999

BETWEEN:

MOTOR VEHICLES INSURANCE LIMITED

Appellant

AND:

MARTHA KUMA

Respondent

Waigani: Kapi DCJ.; Jalina J.; Sawong J

20th June, 9th August 2000

Application for extension of time under s 54(6) of the Motor Vehicle (Third Party Insurance) Act (Cap 295) — admissibility of evidence given by lawyer to show "sufficient cause".

- Power of the Supreme Court to grant extension on appeal s 16(c) Supreme Court Act (Cap 37) — principles considered.

A. Kandakasi for the appellant

A. Kwimberi for the respondent

9th August 2000

By the Court: On an application made by the respondent, the National Court granted an extension of time within which to give notice of claim to the appellant pursuant to s 54 (6) of the Motor Vehicles (Third Party Insurance) Act (Cap 295). The appellant filed an application for leave to appeal and a notice of appeal against this decision.

Application for Leave to Appeal

Counsel for the respondent did not contest the application for leave to appeal on the basis that he conceded that the trial judge erred in granting the extension on the wrong findings of fact. This will become apparent when we consider the notice of appeal. We would grant leave to appeal.

Notice of Appeal

We now proceed to deal with the merits of the appeal. The circumstances giving rise to the appeal are as follows. The respondent was injured in a motor vehicle accident on 8th August 1997. The respondent's husband gave instructions to Dowa Lawyers to pursue a claim for damages on 15th August 1997. Apparently, the lawyer advised the respondent's husband to obtain Road Accident Report and Medical Report as they were prerequisites to a claim against the Appellant. The lawyers acting on this wrong and mistaken view of the law, did not give notice of claim to the appellant immediately but waited for the respondent to provide the reports. When the respondent did not provide the reports for some months, the lawyers then gave notice of claim to the appellant in a letter dated 25th February 1998. This letter was received in the appellant's office on 2nd March 1998. The notice was given well outside the 6 months period and therefore did not constitute notice. The appellant was therefore not obliged to act on the notice.

The respondent's lawyers then wrote to the Insurance Commissioner for extension of time in which to give notice in letter dated 6th March 1998 pursuant to s 54 (6) of the Motor Vehicles (Third Party Insurance) Act (Cap 295). In this application, the lawyers explained the delay in the following terms:

"..our client was unable to give adequate notice to the Trust because she was of the believe that the police accident report was a pre-requisite to lodging a claim against the Trust as she understood from Traffic Police when approached. As explained in the Statutory Declaration the non-availability of the road accident report was due to the Police Officer-In-Charge who has failed in completing the said report in required time.

Our client and relatives kept on checking on Constable R. Koman regularly and the police kept on telling our clients that whenever Constable R Koman returns, he will write our client the accident report."

The Insurance Commissioner did not respond to the application quickly. Lawyers for the respondent wrote five reminder letters to the Commissioner for decision without success until 13th January 1999 when the Commissioner declined the application giving no reasons for decision. The lawyers for the respondent then filed application in the National Court seeking extension of time in which to give notice to the appellant. The Court granted the extension and the appellant has appealed against this decision.

The appellant has appealed on the following grounds:

"3. GROUNDS

(a) His Honour erred in accepting into the evidence and

giving consideration to the sole Affidavit of Mr Zimike, in that its entire content, as to the material matters, were hearsay and inadmissible;

(b) His Honour erred in failing to find that the Affidavit of Mr Zimike was inadmissible, in that it was entirely hearsay.

(c) His Honour erred in failing to find that there was no competent, admissible and relevant evidence in support of the application.

(d) His Honour erred in finding that sufficient cause was established in that:

1. The sole Affidavit in support essentially contained hearsay material and was inadmissible.

2. Otherwise or alternatively, the plaintiff was aware of the requirement to give notice having obtained legal advice 7 days after the alleged accident, that she was not totally incapacitated or hindered by other difficulties in complying with the requirement to give notice, that the Police Road Accident Report,...