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Richard, In re [2017] PGNC 361; N7045 (20 April 2017)

N7045

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.337 of 2016

IN THE MATTER OF AN APPLICATION BY SANCE RICHARD PURSUANT TO SECTION 54(6)(b) OF THE MOTOR VEHICLES (THIRD PARTY) INSURANCE ACT, CHAPTER 295

Waigani: David, J

2016 : 5 August

2017 : 19 & 20 April

PRACTICE AND PROCEDURE — personal injuries — notice of intention to make a claim to Motor Vehicles Insurance Limited — application for extension of time — extension granted by Insurance Commissioner not complied with - extension within the discretion of Court — exercise of discretion — Motor Vehicles (Third Party Insurance) Act, Chapter 295, Section 54(6)(b).

Case cited

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

Counsel

B Lakakit, for the Plaintiff

RULING

20^th April, 2017

1. DAVID J: This is ruling on an application made by the plaintiff pursuant to Section 54(6)(b) of Motor Vehicles (Third Party Insurance) Act, Chapter 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 Limited. The application was prosecuted ex parte.
   
2. The plaintiff relies on the following documents:
   
   • (a) Originating Summons filed on 6 June 2016;
   • (b) Notice of Motion filed on 6 June 2016;
   • (c) Affidavit of Brian Lakakit sworn on 2 June 2016 and filed on 6 June 2016;
   • (d) Affidavit of Richard Beto sworn on 17 August 2016 and filed on 17 August 2016.
     
3. On the morning of 25 May 2014 between 8:00 am and 8:30 am, the plaintiff was a passenger in a motor vehicle owned by one Peter Pyaki and driven by one Saus Pato, registration number HAO 174 bearing third party insurance policy registration number 99331870, which had an accident whilst descending a hill as it was being driven along the road from Wapenamanda to Wabag in the Enga Province. The plaintiff was seriously injured particularly at his lower left leg as a result of the accident. He was taken to the Mambisanda Hospital where he was treated. It is alleged that the accident was caused by a combination of two factors; first, the driver speeding; and second, brake failure as the vehicle was being driven downhill.
   

4. The principles governing the exercise of discretion to extend time are set out in Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20. The onus is on the plaintiff to establish "sufficient cause" and this expression is to be widely interpreted. Relevant considerations to "sufficient cause" are the justice of the case and the prejudice that may be caused to the defendant by the delay. 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.

5. Where the Insurance Commissioner grants an extension of time to give notice of an intention to make a claim and a claimant fails to comply within that period, the only recourse available to him after that is to apply to the National Court to get a further extension. This issue was determined in Rundle v Motor Vehicles Insurance (PNG) Trust.

6. Has the plaintiff shown cause why he ought to be given a further extension of time within which to lodge his notice of intention to make a claim against the Motor Vehicles Insurance Limited?

7. The plaintiff essentially submits that he has shown sufficient cause for his application for a further extension of time to be granted.

8. The evidence shows that on 1 November 2014, a Dr Dian Warep of the Reformation Ministries & Churches Network sent a letter on behalf of the plaintiff to the Motor Vehicles Insurance Limited dated 31 October 2014 addressed to PO Box 1157 Port Moresby by way of electronic mail and post giving notice of the plaintiff’s intention to make a claim for the injuries he had sustained. The Motor Vehicles Insurance Limited treated the letter as having been irregularly conveyed to it as it was received out of time.

9. The plaintiff instructed his lawyers, Lakakit & Associates to act in the matter and they sought an extension of time from the Insurance Commissioner by their letter of 12 October 2015. The Insurance Commissioner granted an extension of 28 days on 24 November 2015 and communicated the grant by a letter of that date to the plaintiff’s lawyers. The letter was not received until 42 days later on 5 January 2016 when the extended period had expired. Mr Lakakit, the principal of Lakakit & Associates states in his affidavit that prior to the Christmas vacation, he checked his post office box at the University of Papua New Guinea Post Office, but the letter from the Insurance Commissioner was not amongst the mail he received. He assumes that the letter may have been posted after 20 December 2015 when his staff were on Christmas vacation.

10. I would accept this as a reasonable explanation for allowing the extended period of 28 days granted by the Insurance Commissioner to expire.

11. The next question is whether a period of; over two years after the accident as at the date of filing of the application on 6 June 2016 and about 3 years after the accident as at the date of completion of the hearing of this application and ruling; 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 it can be said that the defendant would be prejudiced. That of course is always a question of fact. In this particular case, the details of the accident contained in the Accident Report were forwarded to the Motor Vehicles Insurance Limited by one Dr Dian Warep by his letter of 31 October 2014. By a letter from the Chief Executive Officer of the Motor Vehicles Insurance Limited to Dr Warep dated 30 June 2015, he acknowledged receiving Dr Warep’s letter on 21 April 2015 and informed him that as the letter had been received more than six months after the date of the accident, an application for extension of time should be lodged with the Insurance Commissioner. The Motor Vehicles Insurance Limited is already in possession of the Accident Report for purposes of conducting its own investigation into the alleged accident and claim by the plaintiff. I am of the opinion that it is not possible to conclude in the circumstances that the defendant has been prejudiced by the delay.

12. In balancing all these considerations, I am satisfied that the plaintiff has shown sufficient cause. I would therefore exercise my discretion to extend time in which the plaintiff shall give notice of his intention to make a claim to the Motor Vehicles Insurance Limited. The plaintiff shall give such notice to the Motor vehicles Insurance Limited within 14 days from today.
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Lakakit & Associates: Lawyers for the Plaintiff