Tinange Tamase v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 21 February 1992
• Citation: [1992] PNGLR 244
• Court: National Court
• Year: 1992
• Judgement Number: N1101

National Court: Doherty J

Judgment Delivered: 21 February 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TINANGE TAMASE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Lae

Doherty J

1 November 1991

21 February 1992

LIMITATION OF ACTION — Negotiations — Agreement on quantum of damages arising from death but not on liability — Effect on running of limitation period — Whether estoppel applies.

WORDS AND PHRASES — "Without prejudice" — effect of.

Facts

The plaintiff's husband died from injuries sustained whilst a passenger in a car accident. She sought legal advice on a possible claim against the insurers of the car, but this was more than one and a half years outside the period required for lodging claims under s 54 of the Motor Vehicles (Third Party Insurance) Act, though less than the period provided by the Wrongs (Miscellaneous Provisions) Act for bringing actionable claims arising from death.

The plaintiff's lawyer successfully sought permission of the Insurance Commissioner to submit her claim outside the period prescribed in the former act, and negotiations proceeded between him and the defendants on the quantum of her entitlement. In the course of the negotiations, the period of 3 years expired and the right of action became statute barred by the latter Act. In this action of the plaintiff to effect the terms of the settlement, the defendant pleaded limitation of action.

The issues before the Court were:

1. Whether the correspondence between the plaintiff's lawyers and the defendant Trust constitute an agreement binding upon the parties and enforceable by this Court.

2. If there is no such binding agreement, on the facts, whether the defendant by its conduct is estopped from denying that it agreed to make payments to the plaintiff and her dependent children.

Held

1. If an agreement is reached between the parties making it clear that liability is agreed prior to the limitation period expiring, such an agreement is enforceable by the Courts.

2. On the facts of the case, there was no such agreement and, accordingly, the Court could not enter judgment for the plaintiff.

3. The plaintiff had not acted to her detriment on any promise by the defendant, and so the doctrine of estoppel did not apply.

Cases Cited

Papua New Guinea cases cited

Motor Vehicles Insurance (PNG) Trust v Salem (1991) unpublished N998

Wallace v Motor Vehicles Insurance (PNG) Trust (1991) unpublished N1037

Other cases cited

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

Lubovski v Snelling [1944] KB 44; [1943] 2 All ER 577

Newton, Bellamy & Wolfe v State Government Insurance Office (Qld.) [1986] 1 Qd R 431

Rendall v Hill's Dry Docks and Engineering Company Ltd [1900] 2 QB 245

The Sauria and The Trent [1957] 1 Lloyd's Rep 396

Tomlin v Standard Telephones and Cables Ltd [1969] 3 All ER 201

Wright v John Bagnall & Sons Ltd [1900] 2 QB 240

Counsel

R Barrell for the plaintiff

G Lay for the defendant

21 February 1992

DOHERTY J: The facts giving rise to this case are not greatly disputed, some facts and the law emanating from them are.

On 7 October 1984, Ivan Tamase was a passenger in a PMV vehicle P 7138, which was being driven along the Highlands Highway when another PMV vehicle, pulling out to avoid a stationary trailer, collided with P 7138. Ivan Tamase died on 8 October 1984 of head injuries sustained in the accident. He had been a subsistence farmer, married with two young sons.

The defendant Trust is a statutory corporation charged with the insurance of private motor vehicles against claims for death or injury arising from vehicle accidents on public roads. It is not disputed that the deceased died as a result of a vehicle accident on a public road, and the vehicle he was in was insured or insurable by the defendant.

The widow of the deceased did not seek legal advice on a claim for some time after the accident. It may have been because, as a villager she had no knowledge of or access to the procedures for making claims against the Trust. The Court is not informed of her reasons or if basic compensation was paid. In any event, by the time she sought advice it was over 2 years from the date of the accident; that is more than one and a half years from the 6-month limitation period for claims against the defendant provided in s 54 of Motor Vehicles (Third Party Insurance) Act Ch 295 but less than the period provided by the Wrongs (Miscellaneous Provisions) Act for the bringing of actionable claims arising from a death.

The lawyers for the widow wrote to Insurance Commissioner for permission to bring a claim outside the 6 month period. That was given in a letter dated 15 January 1987. A claim was lodged on 29 January 1987 with the defendant and, according to an affidavit of Mrs Milner, a partner in the plaintiff's lawyers' office, "a chain of correspondence then took place between (their) office and the Motor Vehicles Insurance (PNG) Trust."

There is no affidavit or direct evidence when, if ever, the defendant admitted liability or gave some indication that liability was not an issue. The only letter produced to court is dated 29 February 1988 from the defendant to the plaintiff's lawyer. It acknowledges a letter of 24 February 1988 and I will recite it in full in due course. There is a copy of an earlier letter dated 20 January 1987 from the plaintiff's lawyer to the defendant stating their instructions to claim and asking to "advise us whether or not liability will be in dispute."

In the absence of an averment of facts or in a pleading, I must take it that there was no statement, one way or the other, from the defendant stating if liability was denied or admitted.

The defendant's letter of 29 February 1988 is headed "without prejudice", and I consider it appropriate I quote it in full.

"We acknowledge your letter of 24 February 1988 and note your comments on quantum.

Without prejudice, we advise that we are prepared to accept settlement of all matters as computed by your goodselves with the exception of the matter of the widow. With her claim, we note you had not allowed for the usual life contingencies. Accordingly, we consider that a reduction by 30% with emphasis on the contingency for early remarriage, would be reasonable indeed.

We therefore note settlement of all matters thus:

1. WidowK3,227.63Plus estate claim K1,500.00TotalK4,727.632. Wilson K1,971.253. TeaK2,212.77As for settlement we regret we are not prepared to dispose of the widow's claim by way of "Deed of Release" and insist that all matters be settled in Court. In this regard we advise that we are prepared to note your costs at the usual sum of K550.00.

We trust you will proceed to draw up the necessary draft documentation and forward same for our consent in the near future."

It will be noted that 29 February 1988 is some four and a half months after the expiration of the period provided for bringing an action arising from death under Wrongs (Miscellaneous Provisions) Act Ch 297.

Some of the facts relating to another letter averred to by Mrs Milner were objected to by the defendant and are not before this Court. Counsel for the defendant also objected to certain parts of the affidavit and applied to have them struck out. I agree that par 17 and par 18 constitute an opinion or are a submission on the law and parts of par 6 and par 7 related to conclusions of fact which must be reached by this Court.

Documents for filing in Court for approval by the Court were sent to the defendant on 6 September 1988 and, it appears from a letter acknowledging them and subsequent events, that they were referred to the defendant's legal advisers. The defendant's lawyers gave Notice of Intention to Defend and a sealed Defence was filed on 7 February 1989 and served. It pleads that the proceedings were not commenced within three years after the death of the deceased and so are statute barred.

One wonders, looking at a situation such as this, why the plaintiff receiving "without prejudice" correspondence and no apparent categorical acceptance of liability did not issue proceedings within the limitation period and, by the same token, why the defendant continued to negotiate and discuss quantum after the limitation period had expired.

In submission, Counsel for the plaintiff said there was correspondence in which the defendant said the payment of K5.00 per week for the widow and K3.00 per week per child was put forward, but no such correspondence is on the affidavit or in the evidence before this Court, and there has been no consent to such evidence by the defendant. Without such evidence, I can make no ruling on such a letter. A reference in submissions by counsel does not amount to evidence.

In these proceedings, the plaintiff seeks to have judgment entered against the defendants on the basis of admissions made and general relief provisions in the National Court Rules under O 12 r 1 and O 19 r 30. The defendant objects.

Plaintiff's submission is that liability was not in issue and that an agreement was made between the parties which is enforceable in this Court, there was offer and acceptance on behalf of the plaintiff and the 2 children. He refers to an...