IN THE HIGH COURT OF JUSTICE. Between STEPHEN LORENZO LODAI. And NAGICO INSURANCE COMPANY LIMITED. (formerly known as GTM INSURANCE COMPANY LIMITED)

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. C.V Between STEPHEN LORENZO LODAI Claimant And NAGICO INSURANCE COMPANY LIMITED (formerly known as GTM INSURANCE COMPANY LIMITED) Defendant Before the Honourable Mr. Justice Frank Seepersad Appearances: 1. Ms.Tara Lutchman and Mr. Yaseen Ahmed for the Claimant 2. Mr. Brent Hallpike and Mr. Robin Otway for the Defendant Date of delivery: 27 th January, 2015 Page 1 of 6

2 REASONS 1. In this matter the Claimant claimed payment from the Defendant pursuant to the Motor Vehicle Insurance (Third Party Risks) Act Chap 48:51 for the assessed damages awarded to him on the 12 th March 2014 against the Defendant s insured Ms. Shoba Jaisir, in CV. No (hereinafter referred to as the first action). The Claimant sought an order that the Defendant do pay the sum of $50, together with interest at 12% from the 13 th March, 2014 until payment as well as an order that the Defendant do pay the sum of $ 7, together with interest at 12% per annum from the 13 th March, 2014 until payment. 2. The instant action arose out of an accident which occurred on the 16 th April, 2006, whereby the Claimant suffered personal injury as a result of a collision involving a motor vehicle registered and owned by the Defendant s insured Ms. Shoba Jaisir. The Claimant instituted the first action on the 23 rd March, 2010 and on the 11 th July, 2012 judgment was entered by consent. The matter was sent before the Master for the assessment of damages and on the 12 th March, 2014 the Claimant s claim was duly assessed. 3. The Court had to determine preliminary issues as the Defendant pleaded that the instant action is an abuse of the Court s process and that it is also statute barred pursuant to section 5 (2) of the Limitation of Certain Actions Act Chap 7: Essentially the preliminary issues that the Court had to address are (1) Whether under section 5 (2) of the Limitations of Certain actions Act Chap 7:09 these proceedings are outside of the mandated statutory period. (2) Whether or not this action amounts to an abuse of the Courts process? (3) Whether the insured s breach of the terms of her policy with her insurer, obviates the Defendant of any obligation to satisfy the judgment debt. Is the claim statute barred? 5. The Defendant contends that the action is statute barred by virtue of the provisions of s. 5 (2) of the Limitation of Certain Actions Act, since it was instituted after the requisite four year period, the Claimant having suffered personal injury on the 16 th April, Page 2 of 6

3 6. The Claimant in response contends that s 5(2) does not apply, since the action is one for recovery of judgment debt/specialty debt and is brought pursuant to section 10(1) of the Motor Vehicle Insurance (Third Party Risks) Act Chap 48: In support of its contention that the action is statute barred, the Defendant relied on the authorities of Lefevre.v. White (1990) 1 Lloyds Rep. 569, and Matadeen.v. Caribbean Insurance Co. Ltd ( Law Reports of the Commonwealth,2003 Vol 4). This Court is of the view that both these cases are distinguishable from the instant case. In those cases, the plaintiff sought to recover the sum awarded from the insurers where the defendant (insured) had become bankrupt and both matters dealt with section 17 of the act and section 17 of the 1930 UK act. 8. In this case, the appropriate section to consider is section 3 (1) (c) of the Limitation of Certain Actions Act, Chp. 7:09 and the relevant period of limitation is four years from the accrual of the cause of action. The cause of action in this case accrued on the 12 th March, 2014, that is the date when an actual quantum of damages was awarded by the Master. Accordingly the instant action was filed within four years of the date of the assessment order and is therefore not statute barred. 9. In considering the issue as to whether the action amounts to an abuse of the Court s process. The Court on the evidence is satisfied that the Claimant complied with the requirements of section 10 (2) (a) of the Motor Vehicle Insurance (Third Party Risks) Act. In the Statement of Case the Claimant outlined the material facts to support a position that there was compliance with section 10 (2) (a) and these paragraphs were admitted by the Defendant. 10. In the first action the Defendant Jaisir filed an ancillary claim and joined the Defendant herein as an Ancillary Defendant. Subsequently, leave was granted to the Ancillary Claimant to discontinue the ancillary claim against the Ancillary Defendant (the Defendant herein). Another action was filed by a different Claimant arising from the Page 3 of 6

4 same accident that gave rise to the instant claim. Jaisir was a named Defendant and issued an ancillary claim against the Defendant herein. The Court dismissed the ancillary claim on the issue of limitation. 11. The Defendant also argued that the instant matter is an abuse of process, since the insurer should have been joined as a co-defendant in the first action in accordance with section 10 (A) of the Motor Vehicles Insurance (Amendment) Act. 12. The Claimant in this matter instituted no previous proceedings as against the Defendant herein. In the first action there was an ancillary claim made against the Instant Defendant and the Claimant had absolutely no control over the course of action that was adopted in those proceedings. The Claimant herein was not a party to the second action and the issue of the limitation period which was the basis of the dismissal of the ancillary claim was never raised in the first action. 13. Having looked at the relevant sections of the Act, this Court is firmly of the view that section 10 (A) (1) of the Motor Vehicle Insurance ( Third Party Risks) Act Chap 48:51 is not mandatory, but rather discretionary, the section provides that the plaintiff may,.. join the insurer as a co-defendant in the action. Therefore, section 10 (A) (1) gives to a Claimant the option to adopt a truncated procedure by joining the co- defendant to the proceedings. The Claimant having not elected to do so in the first proceedings is however entitled, once judgment is obtained, to seek to satisfy the judgment debt by claiming against the insurer. In the circumstances and having considered the history of the first action, the second action and the purport of section 10 of the act, the Court is firmly of the view that it cannot be said that the instant action amounts to an abuse of the Courts process. Page 4 of 6

5 Whether as a result of the insured s breach of the terms of her policy, the insurer can avoid liability? 14. The third issue the Court had to address is whether or not the issue raised in the defence as it relates to the potential breach of the policy by the insured vis a vis the insurer can obviate the need for the insurer to satisfy the judgment debt. The Defendant in its amended defence, pleaded that its insured Ms. Shoba Jaisir breached the terms and or conditions of her policy by failing to notify the Defendant of the first proceedings and by agreeing to the terms of the consent order in the first action, without its consent. The Defendant therefore contends that it is not liable to satisfy the judgment debt. This is a very different circumstance to a situation where the insurer contends that the terms of the policy did not cover the particular event that gave rise to the judgment. 15. A breach of the terms of the policy, as raised in this case is an issue between the insured and the insurer and if the insurer is ordered to satisfy the judgment debt it is open to the insurer to attempt to recover the sums paid from the insured. 16. The Act is very specific as to the defences that can be raised in action for the satisfaction of judgment debt. In the circumstances the defence filed does not meet the threshold requirements of the act and having also considered section 8(1) of the act as well as the dicta in the case of Motor and General Insurance Company Ltd. v. John Pavy PC 31 of 1992, the Court in the exercise of its case management powers holds that the defence should be struck out because it raises no issue that has a realistic prospect of success in relation to the obligation to satisfy the judgment debt pursuant to the provisions of the act. 17. Accordingly the Court makes the following orders: a) There shall be judgment in favour of the Claimant as against the defendant for the sum of $50, together with interest thereon at the rate of 12% per annum from the 13 th March 2014 until liquidation of the aforesaid sum. Page 5 of 6

6 b) It is further ordered that the Defendant shall pay to the Claimant the sum of $7, together with interest at a rate of 12% per annum from the 13 th March 2014 until payment. c) The Defendant is to pay to the Claimant the cost of these proceedings, which is to be calculated on a prescribed cost basis. d) There shall be a stay of execution on the payment of the aforesaid sums of 14 days... FRANK SEEPERSAD JUDGE Page 6 of 6