In The High Court of Justice. Between

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO In The High Court of Justice Claim No. CV Between SARAH YOUNG KATHY YOUNG VLUGTER (Legal Personal Representatives of the Estate of Edwin Young also called Edwin Anthony Young, deceased) Claimants And LENA PEGUS GUARDIAN GENERAL INSURANCE LIMITED Defendants Before the Honourable Madame Justice Rajnauth-Lee Apppearances: Mr. Kevin Ramcharan instructed by Ms. Leandra Ramcharan for the Claimants Ms. Nadine S. Ratiram instructed by Ms. Anjeli Narine for the Defendants Dated the 17 th December, 2010 *********************** 1

2 JUDGMENT 1. The Claimants are the legal personal representatives of Edwin Young, deceased, ( the deceased ) by virtue of letters of administration granted on the 22 nd September, They are the lawful daughters and two of the next of kin of the deceased. They bring this claim for damages for personal injuries/fatal accident and consequential loss arising out of an accident on the 10 th March, 2004, at the Sir Solomon Hochoy Highway near the Preysal Flyover, Couva alleging negligence on the part of Gerald Pegus, servant and/or agent of the First Defendant. 2. Before the Court are three Notices of Application: (1) A Notice of Application filed by the Claimant on the 9 th February, 2009, seeking an Order: (i) That the Claim Form and Statement of Case be amended. (ii) That the claim falls within section 5(3)(b) of the Limitation of Certain Actions Act, (iii) That time be extended for the filing and service of this application. (iv) That leave be granted to the Claimants to file and serve a Reply to the Defence of the First Defendant dated and filed herein the 28 th November, (2) A Notice of Application filed by the Claimants on the 27 th April, 2009, seeking: A declaration that the First Defendant has waived any irregularity in the service of the Claim Form by failing to comply with Rule 9.7 of the Civil Proceedings Rules, In the alternative, an order that the time for the service of the Claim Form and Statement of Case be extended to the 31 st October,

3 (3) A Notice of Application filed by the Claimants on the 14 th May, 2009, seeking an order that service of the Claim Form and Statement of Case on the Second Defendant be deemed good and proper service on the First Defendant pursuant to Rule 5.10 of the Civil Proceedings Rules, UNDISPUTED FACTS 3. On the 10 th March, 2004 the First Defendant s motor vehicle registration number PBE 6025, being driven by Gerald Pegus, was proceeding in a northerly direction along the Sir Solomon Hochoy Highway, when the said vehicle veered across the highway and overturned colliding with the deceased who was standing on the shoulder of the highway, and who died on the 10 th March, 2004 as a result of critical personal injuries suffered as a result of the collision. The driver of the First Defendant s motor vehicle registration number PBE 6025 also died as a result of the said collision. 4. By letter dated the 6 th September, 2006, Attorneys acting for the Claimants wrote to the Second Defendant indicating that they had been instructed by their clients, [the Claimants] the legal personal representatives of the deceased, that the First Defendant, the Second Defendant s insured, had accepted full liability for the aforesaid accident under Policy No. TTAFP Further, Attorney for the Claimants enquired about the Second Defendant s position in relation to the accident and expressed their keenness to forward details of their clients claim to the Second Defendant. 5. On the 22 nd September, 2006, the High Court of Justice granted letters of administration to the Claimants in relation to the estate of the deceased in Estate No. L.2021 of On the 2 nd October, 2006, the Second Defendant, by Mrs. Goura Bissessar, its Team Leader Claims Department, responded to the letter of the 6 th September, 2006 indicating its willingness to negotiate an amicable settlement of the Claimants claim and requesting details of the claim together with supporting documents. Attorneys for the Claimants, however, did not comply with this request and the Second Defendant alleged that it did not hear from the Claimants 3

4 again until 10 th July, On the other hand, the Claimants contended that after numerous telephone conversations with the officers of the Second Defendant, negotiations proved to be futile. 7. On the 11th March, 2008 the Claimants as the legal personal representatives of the deceased commenced the claim herein against the First Defendant, as the registered owner of the said motor vehicle registration number PBE 6025, and the Second Defendant, as the insurers of the said motor vehicle registration number PBE 6025, claiming damages arising out of the said collision of the First Defendant s said motor vehicle registration number PBE 6025 and the deceased. 8. On the 10 th July, 2008, Mrs. Goura Bissessar received a telephone call from Ms. Leandra Ramcharan, Attorney at Law for the Claimants. Ms. Ramcharan informed her that the Claimants had filed a legal claim in the instant matter and that they would be serving same on the Second Defendant on the said date. Ms. Ramcharan also inter alia enquired whether the Second Defendant would accept service of the said legal claim on behalf of its insured, the First Defendant, but according to Mrs. Bissessar in her affidavit filed on the 20 th May, 2009, she stated categorically that they would not do so. The Court will consider this issue in great detail later in this judgment. 9. On the 11 th August, 2008 the Second Defendant filed its Defence alleging inter alia that the said collision and consequently the death of the deceased was as the result of an inevitable accident which occurred when the right rear tyre of the First Defendant s vehicle suddenly and without warning and negligence on the part of the First Defendant and/or her servant and/or agent, exploded and/or blew out thereby causing the said collision. The Second Defendant also alleged that the Claimants right to bring an action for damages for personal injuries and the death of the deceased was barred in time under section 5 of the Limitations of Certain Actions Act Chap. 7:09 ( the Act ) in that the Claim Form and the Statement of Case were filed on the 11 th March, 2008, after the expiry of four years from the date on which the cause of action accrued. 10. On the 5 th November, 2008, the Claimants filed their Reply to the Defence of the Second Defendant alleging that the action was not barred under section 5 of the Act. They alleged that the 4

5 deceased s widow, Nancy Young, was his lawful next of kin and she had made inquiries of her Attorneys with a view to making an application for letters of administration of the deceased s estate, but the said Nancy Young died on the 25 th July, 2004 before the said application could be made. Further, the Claimants alleged that they only became aware that they had a cause of action in July, 2005 when they visited the offices of their Attorneys and were so advised. The Claimants alleged that pursuant to that advice, applications for letters of administration of the deceased s Estate and the estate of the said Nancy Young were duly made and grants were issued by the Registrar of the Supreme Court. The Claimants contend that since they only became aware of the existence of a cause of action against the Defendants in July 2005, pursuant to section 5(3)(b) of the Act, the existing action filed on the 11 th March, 2008, was filed within the time permitted by the Act. 11. On the 12 th November, 2008, Attorney Ms. Gail Persad entered an appearance to the Claim Form on behalf of the First Defendant. On the 28 th November, 2008, Ms. Persad, filed a Defence on behalf of the First Defendant, alleging inter alia, that the Claimants claim was statute barred under the Act; that the Claim Form filed on the 11 th March, 2008, and served on the First Defendant on the 31 st October, 2008, had no validity since it was not served within four months of the date of issue and since it was served without an order of the Court extending the time within which the said Claim Form could be served. The First Defendant also contended that she was not served with a sealed copy of the Claim Form but only with a photocopy of the Claim. 12. On the 27 th March, 2009 a Notice of Change of Attorneys was filed by Messrs. N.S. Ratiram & Co. whereby the said Messrs. N.S. Ratiram & Co. were appointed to act for the First Defendant in place and instead of Ms. Gail Persad. ISSUES 13. The issues which arise for the Court's determination are as follows: (i) Whether the Claimants claim which was instituted on the 11 th March 2008 seeking damages for the personal injuries and death of the deceased is barred in time under 5

6 section 5 of the Act in that the Claim Form was filed after the expiry of four years from the date on which the cause of action accrued. There are certain sub-issues which arise for the Court s determination: (a) Whether for the purpose of the limitation period, time should be computed from the date on which the Claimants allegedly acquired knowledge of the accrual of the cause of action, that is, July (b) Whether for the purpose of the limitation period, time should be computed from the date on which letters of administration were granted to the Claimants as legal personal representatives of the deceased, that is, the 22 nd September, (ii) Whether this case is a suitable case for the Court to exercise its discretion pursuant to section 9 of the Act to override the limitation period in section 5 (2) of the Act and permit the Claimants claim to continue. Under this head, there are two subissues which arise for the determination of the Court: (a) Whether the Second Defendant s representation contained in its letter dated 2 nd October 2006 to negotiate an amicable settlement of the Claimants claim amounts to an admission of liability. (b) Whether the said representation estops the Defendants from relying on the limitation point as its defence. (iii) (iv) Whether service of the Claim Form on the Second Defendant can be deemed good and proper service on the First Defendant pursuant to Part 5.10 of the Civil Proceedings Rules, 1998 as amended ( the Rules ). Whether the Court should strike out the claim against the First Defendant when the First Defendant was served with a photocopy and not a sealed copy of the Claim Form, after the four month period for service prescribed by Part 8.13 of the Rules, and in the absence of an order of the Court extending the period within which the Claim Form may be served under Part 8.14 of the Rules. 6

7 (v) Whether the First Defendant has waived any irregularity in the service of the Claim Form and submitted to the jurisdiction of the Court by failing to comply with Part 9.7 of the Rules. (vi) Whether the Court should make an order in favour of the Claimants extending the time for the service of the Claim Form to the 31 st October, (vii) Whether, in light of the Claimants alleged breaches of the Rules and orders of the Court and having regard to the findings of the Court, the Court should strike out the Claimants claim under Part 26.2(1) of the Rules. ISSUE (I) Whether the Claimants claim which was instituted on the 11 th March 2008 seeking damages for the personal injuries and death of the deceased is barred in time under section 5 of the Act in that the Claim Form was filed after the expiry of four years from the date on which the cause of action accrued 14. Section 5 of the Act governs inter alia the limitation period with respect to the survival of a cause of action for the benefit of the estate of the deceased by virtue of section 28 of the Supreme Court of Judicature Act. It provides in full as follows: 5. (1) Subject to subsection (6), this section applies to any action for damages for negligence, nuisance or breach of duty whether the duty exists by virtue of a contract or any enactment or independently of any contract or any such enactment where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. 7

8 (2) Subject to subsection (3), an action to which this section applies shall not be brought after the expiry of four years from (a) the date on which the cause of action accrued; or (b) the date on which the person injured first acquired knowledge of the accrual of the cause of action. (3) Where the person injured dies before the expiry of the period prescribed by subsection (2), the period with respect to the survival of the cause of action for the benefit of the estate of the deceased by virtue of section 28 of the Supreme Court of Judicature Act, shall be four years from (a) the date of death; or (b) the date on which the personal representative first acquired knowledge of the accrual of the cause of action whichever is the later. (4) Where there is more than one personal representative and their dates of knowledge are different, subsection (3) shall be construed as referring to the earlier or earliest of those dates. (5) For the purposes of this section personal representative includes any person who is or has been a personal representative of the deceased and regard shall be had to any knowledge acquired by any such person while being a personal representative. (6) This section does not apply to an action under the Compensation for Injuries Act. 15. There is no claim in the instant case made pursuant to the Compensation for Injuries Act Chap. 8: The Claimants have contended in their submissions filed on the 9 th February, 2009 that their claim which was filed on the 11 th March 2008, was filed on the last day of the four year period prescribed by section 5(2) of the Act. The Claimants submit that the date of the accident, that is the 10 th March, 2004, ought not to be included in the computation of the time limit and 8

9 therefore the limitation period would expire on the 11 th March The Claimants rely on section 25 (1) of the Interpretation Act Chap. 3:01 which provides: 25. (1) Where in a written law a period of time is expressed to be reckoned from a particular day or a particular event, that day or the day of event shall not be included in the period. 17. On the other hand, Attorney for the Defendants placed reliance on the unreported case of Victor Mungal and ors. v Scotiatrust and Merchant Bank Trinidad and Tobago Limited and Fitzwilliam, Stone, Furness-Smith Morgan, Attorneys-at-Law (a Firm) CV where Moosai J., in determining the preliminary issue before the Court as to when a cause of action accrues for the purposes of the Act, stated at page 15 that, assuming that there had been negligence on the part of the Second Defendant, actual damage would have been sustained at the time of the execution of the conveyance and the mortgage, that is to say on the 29 th April, Accordingly, Moosai J. concluded that the claimants cause of action in negligence accrued on the said 29 th April, 1998, and would have become statute-barred by the 29 th April, Additionally, in the unreported case of Otis Jobe v (Police Constable) Edgar Baird and the Attorney General of Trinidad and Tobago CV Rajkumar J. noted that the Claimant s cause of action in that matter accrued on the 11 th February, 2005 and therefore the Claimant s action was instituted outside the prescribed limitation period when it was filed on the 20 th February 2009, nine days after the expiry of the limitation period. Accordingly the limitation period expired on 11 th February, Moreover, the Claimants placed reliance on the case of Dodds v Walker [1981] 2 All ER 609. In that case, their Lordships of the House of Lords held that in calculating the period of a month or a specified number of months that had elapsed after the occurrence of a specified event, such as the giving of notice, the general rule was that the period ended on a corresponding date in the appropriate subsequent month, irrespective of whether some months were longer than others. According to Lord Diplock at page 610, the period ended on the day of that month that bears the same number as the day of the earlier month on which the notice was given. In the Court s view, this case does not lend support to the Claimants argument. 9

10 20. Having regard to the authorities cited above, the Court finds that the limitation period for the filing of the Claimants claim expired on the 10 th March, 2008 and not the 11 th March, Accordingly, the Claimants action is prima facie statute-barred. SUB-ISSUE 1 (a) Whether for the purpose of the limitation period, time should be computed from the date on which the Claimants allegedly acquired knowledge of the accrual of the cause of action, that is, July Attorney for the Claimants submitted in her written submissions filed on the 9 th February, 2009, that should the Court find that the limitation period for the Claimants cause of action expired on the 10 th March 2008, then it is contended on behalf of the Claimants that they first acquired knowledge of the claim in August, 2005 when they visited their Attorney s office and were advised of their cause of action. At paragraph 7 of the affidavit of the First Claimant filed on the 9 th February, 2009, she deposed that they attended their Attorney s office in August, Nevertheless, the Claimants allege at paragraph 3 of the Reply filed on the 5 th November, 2008, that they only became aware that they had a cause of action against the Defendants when they visited their Attorney s office in July, The Claimants relied on section 5(3)(b) of the Act, which provides: Where the person injured dies before the expiry of the period prescribed by subsection (2), the period with respect to the survival of the cause of action for the benefit of the estate of the deceased by virtue of section 28 of the Supreme Court of Judicature Act, shall be four years from the date on which the personal representative first acquired knowledge of the accrual of the cause of action. 22. Consequently, Attorney for the Claimants contended that the four year limitation period would expire in August On the other hand, Attorney for the Defendants cited section 7 of 10

11 the Act which set out the relevant facts which constitute the requisite knowledge of the accrual of a cause of action. Sections 7(1) and (2) of the Act provide: 7. (1) In this Act, a person first acquired knowledge when he first became aware of any of the following facts: (a) that the injury in question was significant; (b) that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; (c) the identity of the defendant; (d) where it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any act or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. (2) For the purposes of this section an injury is significant if the person would reasonably have considered it sufficiently serious to justify his instituting proceedings against a defendant who did not dispute liability and was able to satisfy a judgment. 23. In her written submissions filed on the 9 th April, 2009, Attorney for the Defendants submitted that the Claimants, being two of the adult children of the deceased, would more likely than not have acquired knowledge that the deceased was involved in a fatal accident which resulted in him sustaining personal injuries from which he died, shortly after the time of the deceased s death. It was further submitted on behalf of the Defendants that such injuries were clearly more than trifling or frivolous and could be considered significant in the sense that a 11

12 reasonable person would consider it sufficiently serious to justify the institution of legal proceedings. Indeed, in his oral submissions made to the Court, Mr. Ramcharan on behalf of the Claimants, conceded that the Claimants, being the adult children of the deceased, had adduced no evidence to satisfy the Court that they did not acquire knowledge of the accrual of the cause of action on the 10 th March, Attorney for the Defendants further submitted that in a case where a motor vehicle leaves the roadway and collides with a pedestrian standing at the side thereof there was a prima facie presumption of negligence on the part of the driver of the said motor vehicle: Ellor and Wife v Selfridge & Co. Ltd (1930) 46 TLP 236; McGowan v Stott (1920) LJKB 357 and Laurie v Raglan Building Co. Ltd. [1942] 1 K.B Attorney contended that the Claimants ought to have known that the deceased s injuries would have been attributable in whole or in part to the act or omission of the First Defendant which was alleged to have constituted negligence. 25. In the judgment of the Court, Attorney for the Defendants has correctly submitted that the circumstances of the accident made it possible for the Claimants to ascertain the identity of the First Defendant and her driver. Indeed, no evidence has been deposed on behalf of the Claimants that they could not ascertain the identities of either the owner or driver of the vehicle. In addition, Attorney for the Defendants has also correctly submitted that knowledge of the accrual of the cause of action under the said Act does not require knowledge of the facts listed in section 7(1) of the Act beyond a reasonable doubt. This submission is supported by the learning in the case of Halford v Brookes and another (1991) 3 All ER 559, a unique case in which the English Court of Appeal considered section 14 of the Limitation Act, 1980 ( the English legislation ) which is in similar terms to section 7 of the Act (although not identical). The Court will consider the differences in the section 14 of the English legislation and section 7 of the Act later in this judgment. In Halford, Lord Donaldson MR stated at page 573 as follows: The word ( knowledge ) has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context knowledge clearly does not mean know for certain and beyond the possibility of contradiction. It does, however, mean knowing with sufficient 12

13 confidence to justify embarking on the preliminaries to issue the writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence. 26. Accordingly, the Court agrees with Attorney for the Defendants that the Claimants, or at least one of them, ought to have had knowledge of one or more of the facts specified in section 7(1) of the Act at the time of the deceased s death on the 10 th March, The Court adopts Lord Donaldson s approach in Halford (supra) and finds that the Claimants had knowledge with sufficient confidence to embark on preliminaries to commencing a claim against the Defendants. 27. Further, Attorney for the Defendants also cited section 7 (3) of the Act which provides: For the purposes of this section a person s knowledge includes knowledge which he might reasonably be expected to acquire (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of such medical or other expert advice as it is reasonable for him to seek, but there shall not be attributed to a person by virtue of this subsection, knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain that advice and where appropriate to act on that advice. 28. It was therefore argued on behalf of the Defendants that by virtue of section 7(3) of the Act the requisite knowledge may have been acquired by the Claimants from facts observable or ascertainable by them. It was also argued on behalf of the Defendants that the Claimants would not have been taken to have had knowledge of any fact where such knowledge would only have been ascertainable with the help of expert advice so long as the Claimants had taken all reasonable steps to obtain that advice. Attorney for the Defendants again referred the Court to Halford (supra) where it was held that knowledge of facts for the purposes of section 14 of the English legislation did not depend on knowing with the help of legal advice that a particular claim was available, since legal advice did not fall within the category of appropriate expert advice necessary for ascertaining knowledge of a fact. 13

14 29. Accordingly, it was argued by Attorney for the Defendants that the Claimants knowledge of the accrual of the cause of action should not be taken as being first acquired in August 2005 when the Claimants received legal advice that they could bring such an action, but on the date when they learned of the death of the deceased, the circumstances in which it occurred (see Dobbie v Medway Health Authority [1994] 4 All ER 450, 455), and acquired knowledge of any one of the facts enumerated in section 7(1) of the Act. 30. On the other hand, in his written submissions filed on the 2 nd July 2009, Attorney for the Claimants argued that the English authorities cited by the Defendants offered no assistance since section 14 of the English legislation was materially different to section 7 of the Act in two significant areas. Firstly, it was contended that the words any of which appear in section 7(1) of the Act were absent in section 14 of the English legislation. It was argued that section 14 requires knowledge of all four facts before knowledge can be imputed. Attorney for the Claimants pointed out that in the case of Dobbie (supra), Lord Steyn, LJ, had made it clear at page 462 that section 14 was in conjunctive terms: it required knowledge of all four facts. On the other hand it was exhaustive: no knowledge of any further facts was required. Further, Attorney for the Claimants submitted that on a literal interpretation of section 7 of the Act, the Act required knowledge of any so that once one factor is known, knowledge is imputed and the cause of action accrued. 31. Secondly, it was submitted that the words and knowledge that any act or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant do not form part of sub-paragraph (d) of section 14(1) of the English Act as they do in section 7(1) of the Act, but rather refer to the entire section. It was submitted that the effect of this difference is that locally those words apply only to sub-paragraph (d) whereas in England those words apply to all the facts enumerated in section 14(1). 32. Further, in his written submissions filed on the 2 nd July, 2009, Attorney for the Claimants also invited the Court to have regard to the proper interpretation of section 7. Mr. Ramcharan urged the Court not to ascribe a literal meaning to section 7 since such an approach would make the law with respect to accrual of the cause of action more draconian than the position before the Act was passed which would clearly not be in accordance with the general purpose of the Act. 14

15 According to Mr. Ramcharan, a literal interpretation could lead to a situation where the time for bringing an action has expired before the proposed claimant is fully aware that he has suffered loss. Mr. Ramcharan submitted further that such an interpretation would not be in accordance with the general purpose of the Act and would lead to an absurd and unjust result and not what Parliament had intended. 33. Mr. Ramcharan relied on Bennion on Statutory Interpretation 4 th Edition at page 831 which states that the court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. The courts give a very wide meaning to the concept of absurdity, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief. Nonetheless, Bennion states that in rare cases there are overriding reasons for applying a construction that produces an absurd result, for example where it appears that Parliament really intended it or the literal meaning is too strong (section 312). 34. Mr. Ramcharan further submitted that according to the Shorter Oxford Dictionary, the word any in the context of section 7 of the Act, could mean one or more, or some of. Additionally, in affirmative senses the word any also meant every one (of the sort named). Mr. Ramcharan contended therefore that that demonstrated that the literal meaning of the section is not so strong as to work against the rule of construction against absurdity. Consequently, he urged the Court to ascribe a strained construction of section 7 to get an interpretation which is more in line with what Parliament intended. A strained construction is one where on the facts of the particular case and taken by itself, an enactment has a clear grammatical meaning, but the court gives it a different meaning (See Bennion section 157 p. 394). According to Bennion a strained interpretation may be justified where the consequences of a literal construction [are] so undesirable that Parliament cannot have intended them. (page 395). 35. Mr. Ramcharan contended that Parliament intended to give section 7 a meaning which is similar in terms with the provisions of section 14 of the English Act. Accordingly, Mr. Ramcharan argued, in order to impute knowledge to a claimant, he must first be aware of all four facts listed in section 7. He argued that since the claimants deferred to their mother who was legally entitled to 15

16 a grant of letters of administration of the deceased s estate, they had no interest, legal or otherwise, to try to ascertain the identity of the proper defendant. Accordingly, it was submitted that the earliest that the Claimants, or one of them, would have been aware of the four factors enumerated in section 7(1) of the Act would have been the 25 th July 2004, the date of death of their mother. The outcome of this, it was argued, would be that the limitation period would expire on the 25 th July 2008, at the very earliest. 36. The Court does not accept Mr. Ramcharan s several arguments. Indeed, the evidence adduced on behalf of the Claimants does not support such arguments. The Court has made the point before that there is no evidence before the Court that the Claimants could not or did not ascertain the identity of the proper defendant until after the death of their mother and indeed the same reasoning applies to the others facts itemized in section 7(1) of the Act. In the circumstances of this case, in the Court s view, although the Court has set out Mr. Ramcharan s arguments in detail, it is not necessary to make a determination of the interpretation of section 7(1) of the Act or to determine whether, as Mr. Ramcharan has argued, that the Court ought not to give a literal interpretation but a strained interpretation to section 7(1) of the Act. 37. Alternatively, Mr. Ramcharan in his written submissions filed on the 2 nd July, 2009, has submitted that it is instructive that the Act provides that with respect to paragraph (d), knowledge that the act complained of was in law negligent, a nuisance or a breach of duty is irrelevant. Attorney argues that the implication is that with respect to the other three facts, such knowledge is relevant. Therefore, it is argued on behalf of the Claimants, that with respect to the facts listed in section 7(1)(a), (b) and (c), the Claimants must have had knowledge that the act complained of constituted in law negligence, nuisance, or breach of duty. In addition, Mr. Ramcharan further contended that knowledge that an action could be maintained was also relevant. Consequently, he submitted that the Claimants would have acquired knowledge that they had a cause of action in August 2005 when they received legal advice about the deceased s estate. In that event, it was argued that the limitation period would expire in August In the judgment of the Court, there is nothing in section 7(1) to suggest that it is a relevant fact that the Claimants did not have knowledge that an action could be maintained in the 16

17 circumstances of this case. Accordingly, the Court does not accept Mr. Ramcharan s argument. I hold the view that for the purpose of the limitation period, it cannot be argued that time should be computed from the date on which the Claimants allegedly acquired knowledge of the accrual of the cause of action, that is, July 2005 or August SUB-ISSUE 1 (b) Whether for the purpose of the limitation period, time should be computed from the date on which letters of administration were granted to the Claimants as legal personal representatives of the deceased, that is, the 22 nd September, It was submitted on behalf of the Claimants that the provisions of section 5(3)(b) of the Act were of paramount significance since they provide the earliest date from which time began to run under the Act in the circumstances of this case. Section 5(3)(b) which has already been set out above provide that where the person injured dies before the period prescribed by subsection (2), the period with respect to the survival of the cause of action for the benefit of the estate of the deceased shall be four years from the date on which the personal representative first acquired knowledge of the accrual of the cause of action. Section 5(5) of the Act defines personal representative for the purpose of section 5 as including any person who is or has been a personal representative of the deceased and regard shall be had to any knowledge acquired by any such person while being a personal representative. 40. Mr. Ramcharan on behalf of the Claimants submitted that by virtue of section 2 of the Wills and Probate Act Chap 9:03 a representative is defined as the executor or the administrator for the time being of a deceased person. Mr. Ramcharan also submitted that in the case of intestacy a person is only a personal representative when the grant of letters of administration is made. He argued further that by virtue of section 5(5) of the Act regard is to be had to knowledge acquired by a personal representative when he was in fact a personal representative and at no other time. It was argued on behalf of the Claimants that knowledge acquired before he became a personal representative does not count until he becomes a personal representative. Mr. Ramcharan therefore submitted that the date on which the grant of letters of 17

18 administration was made, the 22 nd September, 2006, should be deemed to be the date when the Claimants first acquired knowledge of the accrual of the cause of action pursuant to section 5(3)(b) of the Act. 41. Mr. Ramcharan in his written submissions filed on the 2 nd July, 2009, conceded that section 5(5) at its highest could be construed to mean that knowledge acquired by a personal representative before he actually became a personal representative would be imputed to him once the grant of letters of administration was made, which in the instant case is the 22 nd September On the other hand, Defendants conceded that in the case of intestacy a claim on behalf of the intestate s estate cannot be initiated until there has been a grant of letters of administration. Reliance was placed on the case of Ingall v Moran (1944) 1 All ER 97. In that case an action was brought on behalf of the estate of the intestate before letters of administration were granted. The Court of Appeal held that an administrator has no cause of action vested in him before he had obtained letters of administration; accordingly, he had no cause of action vested in him at the date when the action was commenced; and that the action failed despite the fact that the letters of administration had not been granted until after the expiration of the relevant limitation period. 43. Attorney for the Defendants in her written submissions filed on the 9 th April, 2009, distinguished the case of S.M.K.R. Meyappa Chetty v S.N. Supramanian Chetty [1916] A.C. 603, an appeal to the Privy Council from the Supreme Court of Singapore. In the relevant legislation with respect to the limitation of suits, it was provided that where a person who would, if he were living, have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application. It is clear from that provision that Parliament intended that time would not begin to run for the survival of causes actions until a grant of letters of administration had actually been made. 44. That case was considered by Sealey J. in the unreported case of Krishnadaye Chandree v Joseph Gilbert and David Gilbert H.C.A. No. 340 of Sealey J. made it clear that 18

19 Meyappa Chetty was decided within the context of the specific statutory provisions in Singapore referred to above and therefore she found the learning in the case of no relevance or assistance. The question before Sealey J. was whether the plaintiff s claims under the provisions of the Supreme Court of Judicature Act Chap. 4:01 and under the Compensation for Injuries Act (supra) were statute barred in that the cause of action accrued more than four years before the commencement of the action. Sealey J. determined the issues in the context of the Limitation of Personal Actions Ordinance Ch. 5 No. 6 (sections 3 and 5) and the provisions of the Compensation for Injuries Act (supra). With respect to the latter Act, Sealey J. made it clear that the matter did not stand abated until an executor was appointed and that the suggestion of attorney for the plaintiff that the cause of action crystallized and became vested in the plaintiff only on the grant of the letters of administration cannot be accepted. 45. It is the view of the Court that the conjoint effect of sections 5(3)(b) and 5(5) of the Act is that in the circumstances of this case time began to run from the 10 th March, 2004 when the Claimants acquired knowledge of the accrual of the cause of action against the Defendants. Moreover, in the judgment of the Court, to hold that time begins to run from the date of the grant of letters of administration to the Claimants would lead to an absurdity since it would mean that a claimant may take perhaps twenty years to obtain a grant of letters of administration and would in those circumstances be entitled to rely on the provisions of sections 5(3)(b) and 5(5) of the Act and to contend that he was within time to commence a claim for the benefit of the estate of the deceased since according to the argument advanced on behalf of the Claimants time only runs from the date of the grant of letters of administration to the Claimants. In the Court s view, such an interpretation would defeat the purposes of the Act. In the judgment of the Court, the Claimants cannot succeed on this issue. ISSUE (II) Whether the instant case is a suitable case for the Court to exercise its discretion pursuant to section 9 of the Act to override the limitation period in section 5 (2) of the Act and permit the Claimants claim to continue 19

20 46. Section 9 of the Act empowers the Court to extend limitation periods where it appears that it would be equitable to do so. Section 9(1) provides as follows: 9. (1) Where it appears to the Court that it would be inequitable to allow an action to proceed having regard to the degree to which (a) the provisions of section 5 or 6 prejudice the plaintiff or any person whom he represents; and (b) any decision of the Court under this subsection would prejudice the defendant or any person whom he represents, the Court may direct that those provisions shall not apply to the action or to any specified cause of action to which the action relates. 47. Mr. Ramcharan submits on behalf of the Claimants that should the Court find that the Claimants claim was filed outside the limitation period, the Court should exercise its discretion pursuant to section 9 of the Act to override the limitation period specified in section 5 of the Act. In the exercise of its discretion, the Court must not only balance the prejudice to the Claimants and the Defendants pursuant to section 9(1) of the Act but is duty bound to consider all the circumstances of the case and to have regard in particular to the matters set out at section 9(3) of the Act. Section 9 (3) provides: In acting under this section the Court shall have regard to all the circumstances of the case and in particular to (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 8 or, as the case may be, section 9; (c) the conduct of the defendant after the cause of action arose, including the extent to which he responded to requests reasonably made by the plaintiff for information or 20

21 inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; or (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the defendant s act or omission to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. 48. As to section 9(3)(a) and the length of the delay, the Court notes that the delay in the filing of this claim is only one day. The reasons advanced by the Claimants for the delay are contained in the affidavit of the First Claimant filed on 9 th February, 2009). According to this First Claimant (i) Their mother, Nancy Young, the wife of the deceased, had difficulty coping with the sudden death of the deceased and then passed away three months after the death of the deceased, having not yet applied for letters of administration of the estate of the deceased although she had made preliminary enquiries of her Attorneys concerning an application for letters of administration. (ii) Although there were five children of the deceased, they deferred to their mother. (iii) The Claimants were devastated at the loss of both their parents in a short period of time. It was a difficult time and they avoided discussing their parents and how they had died. Consequently, the Claimants waited one year from the death of Nancy Young to apply for letters of administration of the estates of both parents. 21

22 (iv) They were only advised by their Attorneys in or about August 2005 that a claim could be filed against the Defendant. (v) Letters of administration of the estate of the deceased were granted on 22 nd September, (vi) The Claimants had to seek the assistance of accountants and other experts in the field of supply of materials for construction as they did not have full details of the deceased s business dealings and income. 49. In the view of the Court, the reasons set out in the affidavit of the First Claimant do not justify the delay in this matter. 50. In any case, the Claimants had been in receipt of legal advice since August, 2005 and had obtained a grant of letters of administration since September, The Court finds therefore that the Claimants have shown no good reason for the delay, as short as it may be. 51. As to the consideration at section 9(3)(b) of the Act whether the extent to which, having regard to the delay, the evidence adduced by the Claimants or the Defendants may be less cogent, it was submitted on the part of the Defendants that the delay in initiating this action would negatively impact upon the evidence in this case since the evidence capable of being adduced by the Defendants was likely to be less cogent than if the action had been brought promptly and/or within the limitation period. Attorney for the Defendants contended that the Defendants defence of inevitable accident placed a high burden of proof on the Defendants and therefore they would be prejudiced since the lapse of time was likely to affect the quality of their evidence. It was contended that the driver of the First Defendant s motor vehicle having died as a result of the collision the Defendants would have to rely on the evidence of persons who were not directly involved in the collision and whose recollection would therefore become hazy with such a lapse of time. The Court notes however that it is not unusual for the recollection of witnesses to be dimmed by the passage of time from the date of the accrual of a cause of action and the date of trial. The claim having been filed only one day after the expiration of the limitation period, the 22

23 Court does not accept without more the Defendants submission that the quality of their evidence must necessarily be less cogent than if the action had been brought within the statutory period. 52. The third factor for consideration by the Court under section 9(3)(c) of the Act is the conduct of the Defendants after the cause of action arose. 53. By letter dated the 6 th September 2006, Attorneys for the Claimants, while not giving notice of intended legal action, wrote to the Second Defendant indicating inter alia that they had been instructed that their insured had accepted full liability for the accident. Attorneys concluded the letter by requesting that the Second Defendant advise them of the Second Defendant s position in relation to the above so that they (the Claimants) might forward details of their clients claim. By letter dated the 2 nd October 2006, the Second Defendant through Mrs. Goura Bissessar replied to Attorneys for the Claimants in the following terms: We refer to your letter dated September 06, 2006 in connection with the matter at caption. This is to confirm that we are willing to negotiate an amicable settlement of your client s claim and ask that you kindly submit details of the claim together with supporting documents. 54. The Claimants failed to comply with this request. According to Mrs. Bissessar s affidavit filed on the 20 th May, 2009, apart from the above letters, there has been no communication whatever between the Second Defendant and the Claimants and/or their Attorneys through herself or any other employee of the Second Defendant except for one telephone call received on the 10 th July, 2008, (almost four months after the Claim Form was filed). According to Mrs. Bissessar, Attorney for the Claimants indicated that they had filed a legal claim in this matter and would be serving same on the Second Defendant on the said 10 th July, Further, according to Mrs. Bissessar, Attorney for the Claimants enquired whether the Second Defendant would still be willing to negotiate settlement of this matter. 55. By the affidavit of the First Claimant filed on the 9 th February, 2009, the Claimants never contended that they had been relying on the Second Defendant s representation or that they had been led to believe that liability was not a live issue. Furthermore, they have never disputed 23

24 Mrs. Bissessar s assertions contained in her affidavit of the 20 th May, Consequently, the Court accepts Mrs. Bissessar s evidence that subsequent to her letter of the 2 nd October, 2006 there was no communication from the Claimants to the Second Defendant in response to her request. 56. It has been submitted on behalf of the Defendants that the Second Defendant acted in good faith and sought to settle the matter amicably outside the courts. On the other hand, it was argued in the Claimants written submissions filed on the 9 th February, 2009, that the Claimants through their Attorney-at-Law were led to believe by the correspondence and telephone conversations of the Second Defendant that the question of liability was not a live issue and that they were willing to negotiate an amicable settlement of your client s claim. Having taken such a position it would be unconscionable for the Defendants to pray in aid the limitation point. There is no evidence to support the submission advanced above and at paragraph 4 of the Claimants written submissions filed on the 9 th February, 2009, that there were numerous telephone conversations with the officers of the Second Defendant. 57. The Claimants relied on the unreported case of Perry Chin Kung Chew v Inland and Off Shore Contractors Limited and Clint Chin Kung Chew H.C.A. No of 2006 which concerned an action in negligence wherein the claimant was seeking damages for personal injuries. The action was filed 4 years and 11 months after the accrual of the cause of action. Liability was not an issue in that case but the defendants contested the claim on the issue of limitation. Ventour J. held that he was satisfied that section 9(1) of the Act conferred on the court an unfettered discretion in deciding whether or not to allow the action to proceed in circumstances where the action was brought after the expiry of four years stipulated by section 5(2) of the Act. Additionally, Ventour J. opined that he must consider not only the prejudice to be suffered by the parties but also all the circumstances of the case and in particular the several matters referred to in paragraphs (a) to (f) of section 9(3) of the Act. The Court held that the limitation period established by section 5 of the Act shall not apply to the action. 58. It was further submitted on behalf of the Claimants that in this case the Defendants would suffer no prejudice since the Second Defendant, the insurer, had already accepted liability and was proceeding to negotiate a settlement of the Claimants claim. It was therefore submitted that in all 24