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Kawa, an Infant By Her Next Friend Kawai Takame v Motor Vehicle Insurance (PNG) Trust [1998] PGSC 24; SC588 (24 August 1998)

Unreported Supreme Court Decisions

SC588

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 37 OF 1998
JOY KAWAI AN INFANT BY HER NEXT FRIEND KAWAI TAKAME
APPELLANT
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
RESPONDENT

Mount Hagen

Salika Hinchliffe Akuram JJ
April 1997
October 1998

PRACTICE AND PROCEDURE – Notice of Intention to Claim from the Trust – a Letter purporting to give notice outside the 6 months period is not a valid notice – Motor Vehicle (Third Party Insurance) Act Chapter 295, s.54(6).

Cases Cited

Stanley Tendi v Motor Vehicles Insurance Trust N.1423

Rundle v Motor Vehicles Insurance Trust [1988] PNGLR 20

SALIKA HINCHLIFFE AKURAM JJ: On 17 December 1991 the appellant sustained personal injuries in a motor vehicle accident involving a motor vehicle registration number AGM 267 along the Okuk Highway between Wapenamanda and Wabag. By letter dated 25 February 1993 the Appellants lawyer Mr. O’Connor wrote a letter to the Respondent Trust purporting it to be a notice under s.54(6) of the Motor Vehicle (Third Party Insurance) Act Chapter 295. The Trust never received that letter and never replied to the letter. In any case the Trust was under no obligation to reply because the letter was well outside the 6 months given under the Act to give notice.

In the meantime Mr. O’Connor had also written a letter to the Insurance Commissioner dated 13 April 1993 seeking an extension of time within which to lodge his clients’ notice of intention to claim from the Trust.

The Insurance Commissioner granted an extension of 28 days to Mr. O’Connor to lodge his client’s claim on 6 May 1993. Instead of giving notice of intention to claim from the Trust Mr. O’Connor only sent the approval letter from the Commissioner to the Trust on 24 May, 1993.

On 9 September 1993 the Trust wrote to Mr. O’Connor asking who he acted for. On 24 August 1994 Mr. O’Connor wrote to the Trust telling the Trust who he was acting for. On August 30 1994 the Trust wrote back to Mr. O’Connor informing him that his letter of 24 August 1998 did not amount to a notice under s.54(6) of the Act.

It is apparent on the face of correspondence that went from Mr. O’Connor‘s office that Mr. O’Connor was of the view that he had lodged his clients’ notice of intention to claim with the Trust. As it was there was no valid otice within the meaning of s.54(6) of the Act.

It was conceded by Mr. O’Connor that the letter of 25 February 1993 to the Trust could not be a notice. However he argued that the Trust ought to have had that letter on their file and that his letter of 24 May to the trust would have ben efect of validating or “converting” the letter into a notice.

That submissiion by Mr. O’Connor would have been valid had he sent a copy of the letter of the 25 February together with the letter of approval by the Insurance Commissioner to the Trust. As it turned out he did not. We agree with the trial judge when he said:

“If Mr. O’Connor attached a copy of his letter of 25 February 1993 to this letter, then it could be fairly said that the letter of 25 February 1993 complied witht the extension letter plus the covering letter of 24 May 1993 amounted to notice or sufficient notice under s.54(6) of the Act as I have ruled in a similar case, which ruling I just handed down a while ago in WS No 827 of 1994 Stanley Tendi v Motor Vehicles Insurance Trust. But the present case is different in that Mr. O’Connor did not attach a copy of his letter of 25 February 1993. Also the situation could have been different if the Trust acknowledged receipt of Mr. O’Connor ‘s letter of 25 February, 1993”.

His Honour went on to say:

“Also in Stanley Tendi v Motor Vehicles Insurance Trust, I have ruled that a letter giving notice of claim to the Trust out of time or outside the period extended by the Commissioner or the Court is invalid or ineffective. So the letter of 25 February 1993 int his case was invalid.

We are of the same view that when Mr. O’Connor wrote tot he trust on 25 February 1993 he wasout of time and therefore his letter ws of no effect. After the Commissioner granted an extension of 28 days to lodge the notice, a letter of notice ought to have been given to the Trust together with the Commissioner’s approval for extension of time for another 28 days. Mr. O’Connor did not do that, he merely relied on the letter of 25 February 1993 which in itself was invalid or ineffective. In any case the Trust denied ever receiving the letter of 25 February 1995.

In our view s.54(6) of the Motor Vehicle (Third Party Insurance) Act is clear. Unless a notice of intention to make a claim is given within a period of 6 months after the occurrence of death or injury no claim lies against the Trust. Where the Commissioner or the Court decided to extend the period the notice of intention to make the claim must be lodged within the extended period. If no notice is lodged within the extended period no action lies against the Trust. We refer to the decision of this Court in the matter of Rundle v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 20 where after the plaintiff had been granted an extension he did not lodge a notice of intention to claim from the Trust within the extended period. This case is similar in that after the appellant was granted an extension no notice of intention to claim from the Trust was given.

In the circumstances, in so far as this matter is concerned no notice was given to the Trust. This appeal is accordingly dismissed with the costs.

Lawyer for the Plaintiff: O’Connor Lawyers

Lawyer for the Respondent: Young & Williams