Dickson Muniakali v Motor Vehicles Insurance Limited (2004) SC764

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Sawong J, Davani J
• Judgment Date: 01 October 2004
• Court: Supreme Court
• Citation: (2004) SC764
• Docket Number: SCA 112 of 2003
• Year: 2004
• Judgement Number: SC764

Full Title: SCA 112 of 2003; Dickson Muniakali v Motor Vehicles Insurance Limited (2004) SC764

Supreme Court: Sevua J, Sawong J, Davani J

Judgment Delivered: 1 October 2004

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 112 of 2003

BETWEEN

DICKSON MUNIAKALI

Appellant

AND

MOTOR VEHICLES INSURANCE LIMITED

Respondent

Waigani : Sevua, Sawong & Davani, JJ

2004 : 25th February

&

1st October

PERSONAL INJURIES – Practice and procedure – Notice of intention to claim – Notice given outside time limit – Same notice annexed to letter to Motor Vehicle Insurance Limited after extension of time approved by Insurance Commissioner – Whether the earlier notice valid in law – Whether its subsequent delivery to Motor Vehicle Insurance Limited constitutes notice pursuant to s.54(6) Motor Vehicle (Third Party Insurance) Act, Chapter 295.

Motor Vehicles (Third Party Insurance) Act, s.54(6).

Cases referred to:

Rundle v. Motor Vehicle Insurance Trust [1988] PNGLR 20.

Stanley Tendi v. Motor Vehicle Insurance (PNG) Trust [1996] PNGLR 379.

Judy Yopole v. Motor Vehicle Insurance (PNG) Trust, N.1758, unreported, 18th September 1998 (Kapi, DCJ).

Cathy Robert Kolum v. Motor Vehicle Insurance (PNG) Trust Limited; N.1998, unreported, 27th October 2000, (Sevua, J).

Joy Kawai v. Motor Vehicle Insurance (PNG) Trust, SC.588, unreported, October 1998 (Salika, Hinchliffe & Akuram, JJ).

A. Manase for Plaintiff

M. Titus for Respondent

1st October 2004

BY THE COURT : The appellant sued the respondent in the National Court for damages arising out of a motor vehicle accident, which occurred on 12th February 1997 at approximately 3pm along the Okuk Highway, when the vehicle he was a passenger in collided head on with an on-coming vehicle near the Dobel Mobil Service Section at the junction of Mt. Hagen Airport road and Mt. Hagen –Kudjip road.

On 24th May 2000, he, through his laywers, Pato Lawyers, gave notice in writing to the Motor Vehicle Insurance (PNG) Trust Limited purportedly, pursuant to s.54(6) of the Motor Vehicles (Third Party Insurance) Act, Chapter 295 (the Act). On 13th July 2000, the respondent acknowledged the appellant’s notice of 24th May 2000, but advised that the notice was out of the 6 months time limit stipulated under the Act and suggested that the appellant seek an extension of time from the Insurance Commissioner.

Subsequently, the appellant wrote to the Insurance Commissioner on 14th June 2000

parts) said:

“We refer to your letter of 13th July 2000 and enclose a copy of a letter dated 20th June 2001 received from the Insurance Commissioner granting extension of 28 days to the injured to lodge his notice of intention to (sic) out of time claim.

Hence we request that you treat our letter to you of 24th May 2000 as the relevant notice of intention to claim.

Please let us have your comments by return.”

(Signed Alfred Manase)

Again several letters from Pato Lawyers to the respondent, including one containing submissions on quantum dated 4th September 2002 went unanswered. Consequently, the appellant filed its writ of summons on 30th June 2003. On 5th September 2003, Mirupasi Lawyers, on instructions, wrote to the appellants lawyers and pointed out that the appellant did not give the mandatory notice to the respondent and therefore it intended to apply to have the proceedings dismissed.

On 26th September 2003, the respondent’s application to dismiss the proceedings came before Kandakasi, J., who dismissed the proceedings on the basis that he was not satisfied that notice had been given by the appellant.

The appellant has now appealed against that decision on the ground that he says that the trial Judge erred in fact and in law in that he failed to find that there was no s.54 (6) notice.

There are four grounds of appeal which we do not intend to set out because we consider that the issue is a narrow one and so despite the fact that there are different grounds, we are of the view that, all the grounds raise the one principal issue of notice under s.54(6) of the Act.

The issue for deliberation by this Court is therefore, whether the appellant’s notice dated, 24th May 2000 and given outside the time limit constitute, notice under s.54(6) of the Motor Vehicle (Third Party Insurance) Act Chapter 295. Collateral to that is the issue whether the annexing of that notice, invalid as it were, on the appellant’s lawyer’s letter to the respondent following an extension of 28 days by the Insurance Commissioner validate the defective original...