Leo Paru v Motor Vehicle Insurance Ltd (2008) N3407

• Jurisdiction: Papua New Guinea
• Judge: Paliau AJ
• Judgment Date: 31 March 2008
• Citation: (2008) N3407
• Docket Number: OS 574 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3407

Full Title: OS 574 OF 2007; Leo Paru v Motor Vehicle Insurance Ltd (2008) N3407

National Court: Paliau, AJ

Judgment Delivered: 31 March 2008

N3407

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 574 OF 2007

LEO PARU

Plaintiff

V

MOTOR VEHICLE INSURANCE LTD

Defendant

Waigani: Paliau, AJ

2008: 27th, 31st March

PRACTICE & PROCEDURE – a Motion seeking leave for extension time for a period of 14 days to lodge Notice of Intention to Claim – Motor Vehicles (Third Party Insurance) Act 1974 (Section 54 (6) – whether sufficient cause shown – whether annexure referred to in Affidavit of Plaintiff/Applicant admissible – whether Plaintiff required to establish prima facie case when applying for extension of time – whether Plaintiff’s failure to promptly notify Defendant will prejudice the Defendant.

Cases cited:

Rundle v Motor Vehicles Insurance (PNG) Trust No. 1 [1988] PNGLR 20

Rovina Nul v MVI (PNG) Trust, N1831, unreported

Revit Mangoi v MVI (PNG) Trust, [1990] PNGLR 327; N876

MVIT v Korowa Pup, SCA No. 26 of 1996

MVIT v Viel Kampu (1998) SC 587

Sinowa v MVIT (1992) N 980

Kongupi v MVIT (1992) N 1043

Salome Gere v MVIT, N 1604

Application of Jack Lucas Kuri [1991] PNGLR 448; N 1107

Michael Ivia v MVIT [1995] PNGLR 183

Counsel:

D. Dademo, for the Plaintiff/Applicant

M. Pokia, for the Defendant/Respondent

31 March, 2008

DECISION

1. PALIAU, AJ: Introduction: The Plaintiff/Applicant by Notice of Motion dated 3rd September 2007 sought leave to apply for extension of time for a period of 14 days to lodge Notice of Intention to Claim under Section 54 (6) of the Motor Vehicles (Third Party Insurance) Act 1974, having failed to lodge his claim within 6 months and after an extension was granted to lodge within 28 days on 11th December 2006.

Background:

2. The Plaintiff/Applicant is the father of the deceased Leo Paru Junior who was hit by a motor vehicle on 1st April 2005 at Scratchly Road, Kaugere, National Capital District and died as a result.

3. The Plaintiff/Applicant failed to give Notice of his Intention to make a claim against the Trust within 6 months of 1st April 2005, the date of the accident. His reasons for delay were based on the following:-

- He was so traumatised and distressed upon his son’s death and

followed 3 months later on or about 20th July 2005 by his wife’s injury in another vehicle accident.

- The wife was admitted at Port Moresby General Hospital (POMGH) on the date of her accident, where he looked after the wife for a period of 3 months from July to October 2005 and finally discharged.

- He is an illiterate and ordinary villager and not aware of the statutory time limitation and unaware of his legal rights and requirements to lodge his intention to claim to the Trust within 6 months.

- Lack of financial resources to engage a lawyer to pursue his claim.

- After the discharge of his wife from the hospital, on or about October 2005, he stayed in the village and was obliged by custom to raise pigs and make gardens to make a feast for his deceased son which feast was done in April 2006. This customary obligation is still thriving in his area.

4. When he became aware of his right to lodge a claim, it was well past 6 months the statutory time limitation to lodge a claim. In fact it was 9 months after the 6 months statutory time limitation had lapsed that he instructed a Mr Bernard Koae, a lawyer to act on his behalf after Mr Koae advised him to apply to the Insurance Commissioner for an extension of time.

5. On the 22nd June 2006, the Plaintiff/Applicant through Mr Koae wrote to the Insurance Commissioner requesting an extension of time to give notice of intention to claim. The Plaintiff/Applicant was granted an extension of time by the Insurance Commissioner on 11th December 2006 and for him to lodge his notice of intention to claim within 28 days from 11th December 2006.

6. The letter of 11th December 2006 was not brought to the attention of the Plaintiff/applicant by Mr Koae or not sighted by him until March 2007, by which time the 28 days notice had lapsed. The Plaintiff/Applicant through Mr Koae again submitted another request for an extension of time but was rejected as it was out of time.

7. Because of the above rejection, the Plaintiff/Applicant by Notice of Motion sought leave to apply for an extension of time for a period of 14 days for him to lodge notice of intention to claim.

Issues

8. There are four (4) issues which I consider to be of relevance in the case before me and they are as follows:-

1. Whether in all the circumstances of the case, there is sufficient cause shown by the Plaintiff / Applicant for him to be granted an extension of time to give notice of his intention to claim?

2. Whether the annexures referred to in the affidavit of the Plaintiff/Applicant should not be admitted as evidence as they are hearsay?

3. Whether the Plaintiff/Applicant is required to establish a prima facie case when he is applying for an extension of time under section 56 (6) (b) of the Act?

4. Whether the Plaintiff/Applicant’s failure to promptly notify the Defendant/Respondent of his intention to make a claim against the Defendant/Respondent prejudiced the Defendant/Respondent’s position in relation to the claim by the Plaintiff/Applicant.

The Law

9. The relevant laws are Section 54 (1)(c) and (6)(b) of the Motor Vehicles (Third Party) Insurance Act, and the case law that are cited in the decision.

Application of the law to the facts

ISSUE 1

Whether in all the circumstances of the case, there is sufficient cause shown by the Plaintiff/Applicant for him to be granted an extension of time to give notice of his intention to claim?

10. Section 54 (6)(b) of the Motor Vehicles (Third Party) Insurance Act, 1974 provides as follows:-

“(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 the 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”

11. Before the Notice of Motion was instituted before this Court, extension of time was granted by the Commissioner when he was requested by Mr Koae on behalf of the Plaintiff/Applicant. The Plaintiff/Applicant was required by that extension to lodge notice of intention to claim within 28 days. The Plaintiff/Applicant failed to do so because Mr Koae did not inform him.

12. When Mr Koae requested for an extension of time, he pointed out the grounds for which the Plaintiff/Applicant was unable to lodge his intention to claim within the six months period required after the occurrence out of which the claim arose.

13. These grounds or reasons for the delay are that the Plaintiff/Applicant’s son died on the 1st April 2005 and three months later, while still mourning the loss of his son, his wife was injured in a separate motor vehicle accident on 20th July 2005. At this point in time, he was not aware of his right to claim against the Defendant/Respondent. He was not aware of the procedure required for making a claim or the statutory requirements involved. Another 3 months was spent in the Port Moresby General Hospital looking after his wife. He did not have the means to seek assistance of a lawyer to pursue his claim. Being a villager, the Plaintiff/Applicant was obliged to make gardens and raise pigs to make a feast for his deceased son as is the custom in his area, which he gave priority to, until April 2006 when that obligation was fulfilled.

14. The grounds or reasons for the delay was accepted by the Commissioner and in my view form the basis upon which the Commissioner allowed the extension of time, 9 months after 6 months statutory time limitation. Those grounds or reasons did assist the Commissioner to form the view that the Plaintiff/Applicant had sufficient cause for delay in filing his notice of intention to claim. I cannot see any other considerations to the contrary.

15. In other words the Plaintiff/Applicant had already established sufficient cause for the delay. The second delay was not caused by the Plaintiff/Applicant. It was caused by a Third Party, who assisted him. He was not informed that he had established sufficient cause and that he must file his notice of intention to claim within the 28 days from 11th December 2006.

16. The Plaintiff/Applicant is not required to look for a second lot of grounds or reasons in order to justify or establish sufficient cause. I do not think he was required to do so.

17. In the exercise of the Court’s discretion to grant an extension of time to an applicant under Section 54 (6) (b) of the Motor Vehicles (Third Party) Insurance Act 1974, the Court must exercise its discretion according to proper principles and taking into account all the circumstances of the case. The onus is on the applicant to establish sufficient cause in order for him to be granted extension of time. See the case of Rundle v Motor Vehicle Insurance (PNG) Trust [1988] PNGLR 20.

18. In the case of Salome Gene v MVIL, N1604, the court said that in order for an applicant for an extension of time to be granted his wish, he must provide a reasonable explanation as to why he did not give the notice of his intention to claim within six (6) months.

19. In the case of MVIL v Korowa Pup, SCA No. 26 of 1996, the court when considering whether or not the trial Judge...