Roselyne Cecil Kusa v Motor Vehicle Insurance (PNG) Trust (2003) N2328

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 24 January 2003
• Court: National Court
• Judgement Number: N2328

Full Title: Roselyne Cecil Kusa v Motor Vehicle Insurance (PNG) Trust (2003) N2328

National Court: Gavara–Nanu J

Judgment Delivered: 24 January 2003

N2328

PAPUA NEW GUINEA

[In the National Court of Justice]

BETWEEN:

ROSELYNE CECIL KUSA

- Plaintiff -

AND:

MOTOR VEHICLE INSURANCE (PNG) TRUST

- Defendant -

WAIGANI: GAVARA – NANU, J

2002: 14th, 15th March, 11th April

2003: 24th January

MOTOR VEHICLES (THIRD PARTY INS) ACT, CHAPTER NO. 295 s. 54 (6) – Notice of Intention to Claim – Notice signed and sent to the Trust by the plaintiff’s lawyers with full instructions from the plaintiff – Such notice is given or deemed to have been given by the plaintiff or the claimant pursuant to s. 54 (6) of the Act.

PRACTICE & PROCEDURE – Where a party is allowed by the other to raise and litigate a matter or issue not pleaded in the pleadings, the party allowing such matter to be litigated cannot object to that other party from addressing the issue by reason of the matter or issue not having been pleaded, so long as the matter or issue is within the ambit of the issues pleaded.

JUDICIAL PRECEDENT - A Supreme Court decision is not binding if the circumstances upon which the decision is made are distinguishable or where the decision is out of line with other authorities or established principles or where the decision is obscure or inconclusive and thus not capable of being a precedent.

WORDS AND PHRASES – Words ‘without prejudice’ – Correspondences headed ‘without prejudice’ – The circumstances in which such correspondence may not be privileged.

EVIDENCE – Medical reports – Expert witnesses -Conflicting medical opinions – The Court’s exercise of its discretion in respect of such evidence – Opinion which is logical and consistent with the overall evidence is to be preferred.

WORDS AND PHRASES – Words ‘public street’ – The meaning thereof – Motor Vehicles (Third Party Insurance), Act, Chapter No.295, s.1. – Public street or road is that which the public use or have access to.

SPECIAL DAMAGES – Special damages being exceptional in character must be specifically claimed and strictly proved – Such damages cannot be inferred in law.

MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT, CHAPTER NO.295, s.54(6) - Motor Vehicles Insurance Trust –– Notice of intention to claim - Sufficiency of such notice - Duties of the Trust as a public institution in respect of such notice– The circumstances in which a claimant may claim estoppel by acquiescence against the Trust.

Facts.

The plaintiff who was a teller with the Westpac bank in Kimbe was involved in a motor vehicle accident on 6th May, 1994, at about 7.00 pm near Kimbe town. At the time of the accident, she was a passenger in a passengers’ motor vehicle (hereinafter referred to as ‘the PMV’), and was sitting in the front left seat, next to the driver. The driver of the PMV was speeding before the accident, and was therefore, not able to avoid the hino truck which was travelling ahead of the PMV, when the hino truck slowed down at a round about. The PMV crashed front on to the back of the tray of the hino truck, as the result, the plaintiff was pinned in her seat for about half hour before being freed. The front left door of the PMV next to the plaintiff’s seat was jammed and could not open, so it had to be broken to free the plaintiff. Apart from the lacerations and bruises to the body, the plaintiff sustained a big cut below her left knee and both knees were injured. Straight after the accident, the plaintiff was admitted at the Kimbe General Hospital, and was discharged the next day. She later developed serious complications including constant pains and severe swellings in the knees due to standing for long hours during her work. That eventually forced her to resign from her employment on 8th February, 2000.

The plaintiff engaged Sialis Tedor & Associates Lawyers to make a claim against the Motor Vehicles Insurance Trust. Upon the instructions given by the plaintiff, on 8th July, 1994, her lawyers sent a letter of her intention to claim damages under s. 54(6) of the Motor Vehicles (Third Party Insurance), Act, Chapter No. 295., to the Trust. The Trust on 5th September, 1994, in a letter headed ‘without prejudice’ acknowledged the plaintiff’s lawyers’ letter and advised that it was making its usual inquiries.

The plaintiff was examined by five doctors who all prepared reports on the plaintiff’s injuries. One of the doctors found no complications at all in both knees. But two of the doctors found that the plaintiff had developed serious complications in both knees, which would affect her for the rest of her life. Two other doctors only gave general reports.

Held.

1. The letter of notice of intention to claim against the Trust given pursuant to s. 54(6) of the Motor Vehicles (Third Party Insurance) Act, Chapter No. 295, by the plaintiff’s lawyers upon instructions given by the plaintiff was given or deemed to have been given by the plaintiff/claimant. MVIT –v- Viel Kampu –SCA.587 distinguished.

2. The letter by the Trust acknowledging the plaintiff’s letter of notice, which was headed ‘without prejudice’ was not privileged from being considered by the Court for purposes of determining the issue of sufficiency of notice, as the letter was merely an acknowledgement of the plaintiff’s letter of notice of intention to claim, and not for the purposes of negotiating a settlement. There was therefore no basis for the letter to be headed ‘without prejudice’. Tinange Tamase –v- MVIT [1992] PNGLR 244, and Tomlinson –v- Standard Telephone Cables [1969] 1.W.L.R 1370, discussed and applied.

3. A decision of the Supreme Court on a point of law is not binding, if the circumstances upon which such decision was made can be distinguished on facts, or if the decision is out of line with other authorities or established principles or where the decision is so obscure or unclear and is thus incapable of being a precedent. Scruttons –v- Midland Silicones Ltd [1962] 2 WLR 186, considered and applied.

4. If a party allowed another party to raise and litigate a matter or an issue which had not been pleaded, the party allowing such matter or issue to be litigated cannot later on object to that to that other from addressing the issue or matter on submissions. MVIT –v- James Pupune [1993] PNGLR 370 and MVIT-v- Etape [1994] PNGLR 596 , applied.

5. Where there are conflicting medical reports and opinions on the plaintiff’s injuries, the report or opinion which stands corroborated by other evidence and which is consistent and logical with the overall evidence is to be preferred.

6. Special damages being exceptional in their character must be specially and specifically pleaded and strictly proved, they cannot be inferred. Stroms Brooks Aktie –v- John and Paterson Zochonis & Co Ltd [1924] A.C 522 and British Transport Commission –v- Gourley [1956] A.C 185, considered and applied.

7. The ‘public street’ as defined by s.1 of the Motor Vehicles (Third Party Insurance), Act, Chapter No. 295, means a street or a road to which the public has or would have access., see Mechantile Mutual Insurance Co. Ltd –v- W. Turner Pty Ltd [1982] 2 NSWLR 728, applied.

8. The Motor Vehicles Insurance (PNG) Trust being a public institution has a continuing obligation to the premium payers and the public, thus, it must be proactive in its dealings with the claimants, and where in its view the notice given under s. 54 (6) of the Motor Vehicles (Third Party Insurance) Act, Chapter No. 295 is insufficient, it must inform the claimant of such view, and in the even that it fails to inform the claimant of such view and allows the statutory period to lapse, the claimant is entitled to claim estoppel by acquiescence against the Trust, otherwise, such conduct by the Trust would be a sufficient cause for the plaintiff to apply for extension of time to give notice, for which the plaintiff should be readily granted the extension of time either by the Insurance Commissioner or the Court, as the case may be.

Cases cited :

MVIT -vs- Salio Tabanto [1995] PNGLR 214

MVIT –v- James Pupune [1993] PNGLR 370

MVIT –v-Viel Kampu –v- MVIT - SCA No.587

Graham Rundle –v- MVIT No. (1) [1988] PNGLR 20;

Graeme Rundle –v- MVIT [1987] PNGLR 44

Michael Kong –v- MVIT – N1349.

MVIT -v- Etape [1994] PNGLR 596

Veronica Lapiso –v- MVIT – Unreported – 1996

Joy Kawai -v- MVIT – 1651

Tinange Tamase –v- MVIT [1992] PNGLR 244

Stanley Tendi –v- MVIT [1996] PNGLR 379

Paul Kumba –v- MVIT – N 2132

Daniel Hewali –v- PNG Police Force & The State – Unreported 27th March, 2002

Cathy Robert Kolum & Ors –v- MVIT – N1998

Jones –v- MVIT [1988-89] PNGLR 611

Walter Roth –v- Ok Tedi Mining Limited – N1788

Tambi –v- The State [1988-89] PNGLR 648

Kuli Gokam –v- The State – N826

Kiak –v- Tora Enterprises Pty Ltd & MVIT [1986] PNGLR 265

Collins –v- MVIT [1990] PNGLR 580

Other cases cited:

Scruttons –v- Midland Silicones Ltd [1962] 2 WLR 186

Elder Dempster & Co. Ltd –v- Paterson Zochonis & Co. Ltd [1924] A.C 522

Stroms Bruks Aktie Bolag –v- John and Peter...