Administrator General of Jamaica (Administrator of the estate of George Gordon Chambers, deceased) v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: ANDERSON, J.
• Judgment Date: 16 March 2005
• Judgment citation (vLex): [2005] 3 JJC 1601
• Court: Supreme Court (Jamaica)
• Date: 16 March 2005

IN THE SUPREME COURT OF JUDICATURE Of JAMAICA

IN COMMON LAW

BETWEEN

THE ADMINISTRATOR GENERAL OF JAMAICA (ADMINISTRATOR OF THE ESTATE OF GEORGE GORDON CHAMBERS, DECEASED)

PLAINTIFF

AND

THE ATTORNEY GENERAL OF JAMAICA

DEFENDANT

LIMITATION OF ACTION -

ANDERSON, J

1 The real issue before me in this matter is whether the action is statute-barred, and accordingly ought to be struck out. It arises out of an unfortunate incident on or about the 2 ^nd day of March 1992, when the deceased George Gordon Chambers, then a member of the Jamaica Defence Force (JDF) received injuries to which he succumbed, when a JDF armoured car driven by a Private Walters and in which the deceased was a passenger, overturned. The deceased, having died intestate, Letters of Administration were granted on the 10 ^th day of April, 1996 and the writ of summons was filed on July 10, 1996

2 The Administrator General on or around April 2, 1998 was granted a judgment in default of defence against the defendant. On January 25, 2002, Wesley James, J. ordered that the default judgment be set aside. The matter was eventually set for case management conference on October 3, 2003 and at that time the learned judge, Marva McIntosh, J ordered that "there be a trial of the issue of the limitation of this Action under the Public Authorities Protection Act ("the Act") on a date to be fixed by the Registrar". When that issue came up for trial on the morning of 16 ^th February. 2005, counsel for the plaintiff applied for an adjournment on the basis that she was not prepared to proceed, as she had been unable to complete the research necessary. That application was denied, but I agreed that the plaintiff would have some time to prepare and we would commence at 12 noon On the resumption. Mrs Francis for the defendant submitted that the action was time-barred by virtue of section 2(1) of the Act. That section provides -

Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance, or execution, or intended execution, of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty, or authority, the following provisions shall have effect:

(a) the action shall not lie or be instituted unless it is commenced within one year next after the act complained of.....

3 It was submitted that "this section relates to the limitation period applicable to the commencement of an action, prosecution or other proceedings against the Crown such as the instant matter". Counsel for the defence cited the Privy Council decision YEW BON TEW v KENDERAAN BAS MARA [1982] 3 ALL E.R. 833 , as authority for the proposition that the right to rely on the provisions cited above, is an "accrued right", by virtue of which the Crown becomes entitled to resist any action on the basis that it is filed outside the period of limitation. In this regard, it was submitted that the amendment of the Act, in 1995 ¹

, whereby the period of limitation was extended to six (6) years from the date of the act complained of, did not and could not assist the Plaintiff. Counsel also cited the decision of the Jamaican Court of Appeal in MOTION NO: 26 of 2001 in WILBERT CHRISTOPHER v THE ATTORNEY GENERAL. In that case, Langrin J A. said

"The question to be determined in this regard is whether the Public Authorities Protection Amendment Act, 1995 is to have retrospective effect, as the cause of action arose in 1994. Section 25(2) (c) of the Interpretation Act provides that.

Where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not -

(a) revive anything not in force or existing at the time at which the repeal takes effect.

The Public Authorities Protection Amendment Act 1995 s 2 shows no contrary intention and accordingly, the Act is not to have retrospective effect"

4 His Lordship continued

"In the case of Lemuel Gordon v The Attorney General for Jamaica. SCCA 96/94 (unreported) delivered 20 ^th December 1995, Carey J.A. noted that the proper approach to the amending enactment is not to determine whether it is procedural or substantive, but to see whether, if applied retrospectively, it would impair existing rights (Emphasis mine) The (rown's agents when acting in execution of their duties acquire a vested right by reason of the statutory limitation period of twelve months and should be able to assume that they are no longer at risk from a stale claim There is an accrued right to plead the lapse of a limitation period which is in fact an absolute defence"

5 Ms. Francis submitted that the incident having occurred on March 2, 1991, the writ and statement of claim having been filed by the Plaintiff on 17 ^th July 1996. the plaintiff should have filed by March 2, 1992, and was accordingly outside the limitation period of one year. That limitation defence, being a special defence, had been specifically pleaded in the defence filed by the Defendant January 29, 2002 and the Plaintiff would have become aware of this pleading Indeed, the need to specifically plead such special defence is well recognized {See for example, Mitchell v Harris Engineering Co. Ltd. [1967] 2 All E.R. 682 (C. A.)}

6 In anticipation of the submissions on behalf of the plaintiff, counsel for the Attorney General further submitted that it was not necessary either in relation to an action under the Law Reform ( Miscellaneous Provisions) Act, nor the Fatal Accidents Act to await the grant of letters of administration. This was because under the former, the plaintiff could have applied to be appointed in an ad litem capacity while in the latter, the action could have been brought by or in the name of a "near relation". ₂

Plaintiff's Counsel also prayed in aid the provisions of the Crown Proceedings Act, section 8, which protected the Crown from liability in relation to a tortious act "done or omitted to be done by a member of the armed forces of the Crown while on duty as such", such act "causing the death of another person, or for causing personal injury to another person, in so far as the death or...