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Dick v Motor Vehicles Insurance (PNG) Trust [1993] PGLawRp 550; [1993] PNGLR 443 (17 August 1993)

PNG Law Reports 1993

[1993] PNGLR 443 - James Dick v MVIT�

[1993] PNGLR 443

N1169

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JAMES DICK

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

19 July 1993

17 August 1993

INSURANCE - Limitation of actions - Notice of intended action - Personal injuries - Motor vehicle accident - Notice to Motor Vehicles Insurance (PNG) Trust - Application for extension of time - Discretion of court - Exercise of discretion.

Facts

The defendant has made an application to dismiss the plaintiff's action on the basis that the requirements for notice under s 54(6)(b) of the Motor Vehicles (Third Party Insurance) Act Ch 295 have not been complied with. The plaintiff was injured in an accident on 15 November 1987. He applied to the Insurance Commissioner for an extension of time in which to lodge a claim with the insurance Trust on 13 October 1988. A copy was sent to the trust. The trust denied liability. The Insurance Commissioner on 9 November 1988 granted an extension of time of 28 days from the date of his letter. The plaintiff failed to give notice within the time limit, but then filed a writ in January 1991. The plaintiff is submitting that his letter of 13 October is sufficient notice and compliance and that the trust, by denying liability, is estopped from denying acceptance of notice.

Held

N1>1.������ If a notice letter is sent to the Motor Vehicles Insurance (PNG) Trust after six months after the accident, and before an extension is granted by the Insurance Commissioner, it is a nullity.

N1>2.������ Under s 54(1) of the Motor Vehicles (Third Party Insurance) Act Ch 295, notice of intention to make a claim is mandatory.

N1>3.������ The words "give notice within the extended time" in s 54(6) of the Motor Vehicles (Third Party Insurance) Act provide that such notice must be given within the time allowed, and it does not suggest that an earlier void notice can be reinstated.

N1>4.������ Even where the prior invalid notice is a writ, any subsequent grant of extension of time/approval cannot validate the writ.

N1>5.������ A valid notice of intention to claim against the Motor Vehicles Insurance (PNG) Trust is a condition precedent to an action against the trust.

Cases Cited

Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20.

Pupu v Motor Vehicles Insurance (PNG) Trust (1993) unnumbered, unreported National Court.

Counsel

P Kopunye, for the plaintiff/respondent.

A Kandakasi, for the defendant/applicant.

17 August 1993

WOODS J: This is an application to dismiss the proceedings on the basis that the plaintiff has not complied with the requirements for notice under s 54(6)(b) of the Motor Vehicles (Third Party Insurance) Act Ch 295.

The plaintiff alleges that he was injured in a motor vehicle accident which occurred on the Hagen-Mendi road on 15 November 1987. There was some delay before he consulted a lawyer, and by then the six months time limit under the Act had expired. However, his lawyer did on 13 October 1988 write to the Insurance Commissioner for an extension of time in which to give notice under the Act. A copy of this application and relevant documents to support the claim were also forwarded to the Claims Manager of the Motor Vehicles Insurance Trust (hereafter the Trust). On 9 November 1988, the Insurance Commissioner wrote to the lawyer granting an extension of 28 days from the date of the letter in which to give notice of the intention to make a claim. In the meantime, the Trust had already replied to the other correspondence denying liability.

The lawyer did not comply with the requirements of the extension of time. No notice of claim was made to the Trust within the 28 days from 9 November 1988. In in January 1991, the lawyer filed a writ on behalf of the plaintiff. It is this writ the defendant is now seeking to have dismissed.

As a further confusion, it appears that someone else on behalf of the plaintiff sought a separate extension of time from the Insurance Commissioner, and a second extension was granted in February 1990. However it would appear that no notice of intention to make a claim was forwarded within the time of that second extension.

Whilst the plaintiff is not denying that no separate notice or communication was made to the defendant within the period of 28 days from 9 November 1988, the plaintiff submits that the letter of 13 October be deemed to be sufficient notice and compliance, the authority of the 9 November letter from the Insurance Commissioner retrospectively validating the letter of 13 October. Further, by in October 1988 denying liability, the Trust is estopped from denying receipt and acceptance of notice of the claim.

An exactly similar situation was dealt with by this court in the case Pupu v Motor Vehicles Insurance (PNG) Trust in March 1993. The letter to the Trust, dated before the extension was granted, is a nullity. It is clearly outside the time required and was clearly denied by the defendant. So how can it then, at a later time, be revived and have effect. The approval of the Insurance Commissioner makes no reference to validating an earlier invalid notice. It clearly allows for notice of a claim to be made within a certain period, and no separate notice was made within that period.

The full construction of s 54 of the Act was discussed in Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20. The Supreme Court emphasised that, on a proper construction of s 54(1), notice of intention to make a claim is mandatory. Note the words of Amet J at p 30: "One can imagine that an applicant who was granted an extension but through neglect failed to give notice within the extended time would have a much harder row to hoe than an applicant who is applying to the court for the first time or who had been refused an extension by the Commissioner". The words "give notice within the extended time" clearly note that such notice must be given within that time allowed. They do not suggest an earlier void notice can be reinstated. As Amet J noted on p 31, where the prior invalid notice to the Trust was an actual writ, "any approval could not validate the writ as notice".

The law is quite clear and has been clearly explained in Rundle's case. The plaintiff has failed to comply with the condition precedent to his action against the defendant and, therefore, can have no cause of action against the defendant.

I order that the proceedings herein are dismissed with costs.

Lawyer for the plaintiff/respondent: Kopunye Lawyers.

Lawyer for the defendant/applicant: Young & Williams.