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Ivia v Motor Vehicles Insurance (PNG) Trust [1995] PGLawRp 681; [1995] PNGLR 183 (14 July 1995)

PNG Law Reports 1995

[1995] PNGLR 183 - Michael Ivia v Motor Vehicles Insurance Trust MVIT�

[1995] PNGLR 183

N1357

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MICHAEL IVIA

V

MOTOR VEHICLES INSURANCE TRUSTS

Waigani

Kapi DCJ

7 July 1995

14 July 1995

PRACTICE AND PROCEDURE - Personal injuries - Notice of intention to make a claim to Motor Vehicles Insurance (PNG) Trust - Delay - Application for extension of time - Extension within the discretion of Court - Exercise of direction - Motor Vehicles (Third Party Insurance) Act (ch 295), s 54 (6).

Facts

The plaintiff was injured on 23 March 1993 in an accident when the PMV in which he was a passenger collided with a Mazda Truck belonging to PTC. The plainitff�s lawyer served a notice of intentions to make a claim on PTC on 5 August 1993. He later established (in 1995) that PTC�s vehicles were insured by the defendant. He therefore sent a letter to the Insurance Commissioner on 18 April 1995, to give notice of an intention to make a claim. The Insurance Commissioner refused his request on 25 April 1995. The plaintiff applied to the National Court for an extension.

Held

N1>1.������ The principles governing the exercise of discretion to extend time are set out in Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20.

N1>2.������ The onus is on the plaintiff to establish �sufficient cause� and this expression is to be widely interpreted.

N1>3.������ Relevant considerations to �sufficient cause� are the justice of the case and the prendice to the defendant that may be caused by the delay.

N1>4.������ It is not possible to determine precisely what period in time would prejudice the defendant. It is a question to be determined on the circumstances of the case.

Cases Cited

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

Counsel

J Nanei, for the plaintiff.

V Mirupasi, for the defendant.

14 July 1995

KAPI DCJ: This is an application by the plaintiff made pursuant to s 54(6) of Motor Vehicles (Third Party Insurance) Act (Ch 295), for an order extending the time in which to give notice of intention to make a claim for damages for personal injuries against the Motor Vehicles Insurance (PNG) Trust.

The plaintiff was a passenger in a PMV vehicle, registration No. P533A, which had an accident with a Mazda truck, registration no ZPT 448, owned by Post and Telecommunications. The accident took place on 23 March 1993. The plaintiff was injured as a result of the accident. It is alleged that the driver of Mazda, registration no ZPT 448 was negligent.

The plaintiff instructed his lawyers to act in the matter on 5 August 1993. On the same day, the lawyers wrote to Post and Telecommunication giving notice of intention to make a claim. This was done on the basis of a view taken by the lawyer that the Post & Telecommunication was a Government Corporation and therefore self-insured and not insured by the defendant.

This matter was further clarified by the lawyer in 1995 when he established that Post & Telecommunication�s vehicles are insured by the defendant. In a letter dated 18/4/95 the lawyer then wrote to the Insurance Commissioner seeking extension of time in which to give notice of intention to make a claim pursuant to s 54 (6) (a) of Motor Vehicles (Third Party Insurance) Act. The Insurance Commissioner refused to extend time in a letter dated 25 April 1995.

Where the Insurance Commissioner refuses to grant an extension of time, an applicant may then apply to the National Court to get the extension. This issue was decided in Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20.

The principles governing the exercise of discretion to extend time are set out in Rundle v Motor Vehicles Insurance (PNG) Trust (supra). The onus is on the plaintiff to establish �sufficient cause�. This expression is to be widely interpreted. It deals with the justice of the case within the context of each case. This include consideration of any prejudice that may have been caused to the defendant by the delay.

In this case the plaintiff through his agent gave instructions to the lawyer within the 6 months period. The lawyer also took appropriate action to give notice of claim immediately. Unfortunately, the lawyer gave notice to the wrong party.

I conclude that the lawyer in this case made an honest and a reasonable mistake in coming to the conclusion that the PTC vehicles were self-insured as is the case with other government vehicles. I would accept this as a reasonable explanation for allowing the period of 6 months to expire.

The next question is whether a period of 2 years 4 months is so long to result in prejudice to the defendant in defending the matter. It is not possible to determine precisely at what period in time can it be said that the defendant would be prejudiced. That of course is always a question of fact. For example if no police report is made giving details of the driver of the vehicle, it would be extremely difficult for anyone in these circumstances to find such a person and obtain instructions. If there are details given in a report then the defendant would be able to investigate the circumstances of the accident. In this particular case, the details of the driver of the PTC vehicle is provided. PTC have also been notified of the accident and they may well have an accident report. It may well be that the driver of the vehicle may well remember the details of the accident.

The claims manager for the defendant has deposed in an affidavit that where there is a long delay it is difficult to investigate and clarify accidents. That is a general statement which cannot explain the situation in this case. It is not possible to conclude in the circumstances that the defendant has been prejudiced in the case.

In balancing all these considerations I have reached the conclusion that sufficient cause has been shown and therefore I would exercise my discretion to extend time in which to give notice to the defendant.

Plaintiff to give notice of intention to make a claim within 14 days.

Lawyers for the plaintiff: Nanei & Company.

Lawyers for the defendant: Young & Williams.