What Must a Notice of Intention to Claim Contain?

Section 54(6) says only that “notice of intention to make a claim” must be “given”. No form is prescribed by the Act or regulations, so what counts as a notice has been worked out case by case. The results are reasonably consistent.

“Notice” in its ordinary meaning

The starting point is Tendi v Motor Vehicles Insurance (PNG) Trust [1996] PGLawRp 745; [1996] PNGLR 379. With no statutory definition, the court gave “notice” its ordinary meaning: to inform or make the Trust aware of the claimant’s intention to make a claim against it. The notice, the court said, “should set out sufficient particulars of the accident, the injuries sustained by the claimant and his desire or intention to make a claim”. Two further points from Tendi have shaped the later law. First, the court rejected a “literal, strict and legalistic” construction of the word in a statute meant to serve ordinary Papua New Guineans. Second, it held that the notice may be in writing or oral, “depending on the background circumstances of the claimant” — in that case an illiterate villager who had gone to the Trust’s office in person.

How much detail is needed

In Kolum v Motor Vehicles Insurance (PNG) Trust Ltd [2000] PGLawRp 409; [2000] PNGLR 40 the Trust argued that a lawyer’s letter about a fatal accident was not a notice because it lacked full particulars of the vehicle. The court disagreed. A “claim for damages” and a “notice of intention to make a claim” are two different things: the notice “means writing to and informing the Trust of one’s intention to make a claim” and “does not mean and does not include all the particulars of the vehicles and/or circumstances of the accident”. The court warned against judicial attempts to define “notice” exhaustively.

The lower boundary is Ume v Motor Vehicles Insurance (PNG) Trust [1998] PGNC 217; [1998] PNGLR 253: “letters from claimants’ lawyers with insufficient particulars or barest information could not be regarded as a notice complying with s 54(6)”. A letter that says no more than “we act for X who was injured in an accident and intend to claim”, with no date, place or vehicle, risks being held insufficient. Between Kolum and Ume lies the safe course described below.

Correspondence and payments as notice

The Supreme Court has been willing to find a notice in the parties’ dealings as a whole. In Motor Vehicles Insurance Ltd v Pojari [2005] PGSC 25; SC799 a dependency claim was brought after a pillion passenger died. No formal notice had been sent, but the parties had corresponded about the death and MVIL had paid Basic Protection Compensation. The majority held that the trial judge “fell into no error” in treating that as notice, consistent with the “more liberal and purposive interpretation” of section 54(6) in Tendi. In Kusa v Motor Vehicles Insurance (PNG) Trust [2003] PGNC 138; N2328 the Trust’s own letter acknowledging the claimant’s notice, though headed “without prejudice”, was held admissible on the question of whether sufficient notice had been given, because it was an acknowledgement and not a negotiation.

What is not a notice

• A writ of summons. The claim is not notice of the claim: Rundle (No 1).
• The Commissioner’s extension letter forwarded to MVIL. It shows time has been extended; it does not give notice of the claim: Kawa v MVIT [1998] PGSC 24; SC588.
• An out-of-time letter annexed to a later letter. A void notice does not become valid by being re-sent after an extension: Muniakali v MVIL [2004] PGSC 10; SC764.
• The owner’s or driver’s report to MVIL under section 53. That is a different notification, given by a different person for a different purpose, and section 53(3) makes it inadmissible in the claimant’s proceedings.

A safe notice

Drawing the cases together, a letter to Motor Vehicles Insurance Limited that does the following will satisfy section 54(6):

1. names the claimant (and, for a death, the deceased and the person claiming on behalf of the dependants);
2. gives the date and place of the accident;
3. identifies the vehicle as far as known — registration number, make, owner or driver — or states that inquiries are continuing;
4. describes the injuries or death in general terms;
5. states plainly that the claimant intends to make a claim for damages against MVIL under the Act;
6. is dated, signed and delivered within six months, with proof of delivery kept.

Police accident reports and medical reports are useful but not required at this stage. In Motor Vehicles Insurance Ltd v Kuma [2000] PGLawRp 405; [2000] PNGLR 1 the Supreme Court found “no evidence to support the view that the police accident report and the medical report are prerequisite to giving notice”. Waiting for them is one of the commonest reasons claimants miss the six months; the notice should go first and the documents can follow.