Paul Kumba v Motor Vehicles Insurance (PNG) Trust [Motor Vehicle (PNG) Trust] (2001) N2132

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 21 May 2001
• Court: National Court
• Citation: (2001) N2132
• Year: 2001
• Judgement Number: N2132

Full Title: Paul Kumba v Motor Vehicles Insurance (PNG) Trust [Motor Vehicle (PNG) Trust] (2001) N2132

National Court: Davani J

Judgment Delivered: 21 May 2001

N2132

PAPUA NEW GUINEA

[In the National Court of Justice]

[Mount Hagen]

WS. NO. 353 OF 1994

BETWEEN:

PAUL KUMBA

Plaintiff

AND:

MOTOR VEHICLE (PNG) TRUST

Defendant

Mount Hagen: Davani J

2001 : 16 & 21 May

PRACTICE AND PROCEDURE — Plaintiff failed to give notice under s.54(6) of the Motor Vehicle (Third Party Insurance) Act Chapter 295 — Defendant continued to liaise with Plaintiff — Equitable remedy of estoppel by conduct not available — Mandatory, by statute, that notice shall be given.

Cases cited:

Carol Laime an infant by her next friend, Willie Laime v. MVIT [1995] PNGLR 224.

Rundle v. MVIT [1988] PNGLR 20.

MVIT v Martha Kuma SC 650 9th August 2000

Irwin Ruap v. MVIT 5th September 1998

Oakland Metal Co Ltd v. D. Benaim & Co. Ltd (1953) 2 All ER 650

Halsbury's 4th Edition, volume 16

Counsel

M. Tamutai, for the Plaintiff/Respondent

P. Honey, for the Defendant/Applicant

DECISION

21 May 2001

DAVANI J: This is an application by Defendant to have the proceedings dismissed because of the Plaintiff's failure to give notice under s. 54(6) of the Motor Vehicles (Third Party Insurance) Act Chapter 295. '(The Act)'

The Defendant's move on their Notice of Motion filed on 28 September 1998 and rely on Muriso Pokia's affidavit sworn on 22 September 1998 and filed on 28 September 1998.

The Plaintiff opposes the application and relies on his lawyer Mathew Tamutai's affidavit sworn and filed on 19 October 1998.

This matter came before me as a trial on 16 May 2001. In court, I was informed by both Counsel that the Defendants Application now before me had yet to be determined by the court and that although Notice of Trial was filed, it was filed under the mistaken belief that the application had been dealt with.

On that note and by agreement from both parties, I vacated the trial date with no order as to costs. I then adjourned to consider the written submissions that the Plaintiff and Defendants lawyers had filed on 22 October 1998 and 26 October 1998, respectively.

Facts:

The application arises from the Defendants contentions that the Plaintiff failed to give the mandatory notice required to be given under s. 54(6) of the Act.

Section 54(6) states:

"No action to enforce any claim under this section lies against the Trust unless notice of intention to make a claim is given by the claimant to the Trust 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 Plaintiff claims this notice was given and opposes the Defendants application.

I set out in chronological order the relevant facts. The letters set out in the chronology below are attached as annexures to the both affidavits relied on by both Counsels in this application.

1. 13 January 1990 - Date of Motor Vehicle accident in which Plaintiff allegedly sustained injuries.

2. 16 July 1990 - Date the Plaintiff should have given notice of the claim

to the Defendant.

3. 6 May 1991 - Date of Plaintiffs lawyer's letter to the Defendant giving notice that it may be necessary to make a claim against the Trust.

4. 22 May 1991 - Date of Defendants letter to Plaintiffs lawyer requesting:

· original and subsequent medical reports

· copy of official Police Road Accident Traffic Report

· copy of letter of approval from Insurance

Commissioner to lodge claim out of time.

5. 27 April 1993 - Date of Plaintiffs Lawyers letter to Defendant enclosing copy of letter from Insurance Commissioner to him (Plaintiffs Lawyer) dated 22 April 1993 giving him a further extension of 28 days within which to give notice.

6. 26 July 1993 - Date of formulated claim from Plaintiffs lawyer to the Defendant.

7. 1 June 1994 - Date Plaintiffs Lawyer filed Writ of Summons and Statement of Claim.

8. 9 August 1994 - Date Defendant's lawyer filed Notice of Intention to

Defend and Defence for the Defendants. Note that in this Defence, the Defendant did not plead the statutory Defence of s. 54(6) of the Act.

9. 28 August 1995 - Filing date for Defendants motion to have proceedings dismissed for want of prosecution.

10. 11 September 1995 — Date when court ordered that proceedings be set down for trial within 14 days and plaintiffs pay the Defendants costs of the application (to dismiss).

11. 13 November 1997 - Trial date vacated by consent.

12. 7 August 1998 - Date Defendant made Application for leave to amend their Defence and consent orders were made (to plead the Statutory Defence of s.54(6) of the Act).

13. 28 September 1998 — Filing date for defendants Notice of Motion seeking orders to dismiss the proceedings for failure to give notice under s. 54(6) of the Act.

14. 16 October 1998 - Court's order to file and serve affidavits and written

submissions in support or to oppose the Defendant's motion to dismiss proceedings.

15. 8 July 1999 - Trial date (obtained under mistaken belief that court had ruled on the Defendants application to dismiss).

On reviewing the factual materials before me, including the written submissions, the following issues are apparent;

1. Was the Plaintiff's lawyer's letter to the Defendant of 27 April 1993 sufficient notice within the meaning of s. 54(6) of the Act?

2. Is the Defendant estopped from raising the Defence of s. 54(6) of the Act considering its conduct throughout.

I will deal with the both issues together.

It is apparent from the facts that on receipt of the Defendant's letter of 22 May 1991 requesting, amongst others, letter of Insurance Commissioner to lodge claim out of time, the Plaintiff's lawyer then applied to the Insurance Commissioner for an extension of time. He, in effect, when writing the letter of 6 May 1991 giving notice to the trust, ought to have known then that if the accident had occurred on 13 January 1990, then a letter giving notice of the claim should have been sent before 16 July 1990.

I do not know when the Plaintiff instructed his lawyers, but a lawyer, on receipt of instructions should ascertain when the accident occurred and when notice should have been given. That is crucial. If he or she was instructed after the expiration of the six month notice period, then he or she should then, seek an extension of time, from the Insurance Commissioner and if granted, to give notice to the Defendant trust. As it is, the Plaintiff's lawyer's letter of 6 May 1991 is not a valid notice as it was sent ten (10) months after the accident. I have no evidence before me to explain why this occurred.

It is apparent from the facts that after receipt of the Defendants letter of 22 May 1991, the Plaintiffs lawyer, sent a letter to the Defendant of 27...