Administrator General v Jermaine Williams

• Jurisdiction: Jamaica
• Judge: MASTER SHARON GEORGE (Ag.)
• Judgment Date: 19 May 2011
• Judgment citation (vLex): [2011] 5 JJC 1902
• Docket Number: CLAIM NO. 2009 HCV 05364
• Court: Supreme Court (Jamaica)
• Date: 19 May 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2009 HCV 05364

BETWEEN

ADMINISTRATOR GENERAL (Administrator of Estate Rohan Wiggins o/c Rohan Wiggins, deceased)

CLAIMANT

AND

JERMAINE WILLIAMS

DEFENDANT

Ms. Ayana Thomas instructed by Messrs. Nunes Scholefield Deleon & Co. for the Claimant

Mr. Jeffrey Mordecai for the Intervener

Error in procedure-limitation of actions-extension of time to serve claim form - Enlargement of time under The Fatal Accidents Act

1 IN CHAMBERS

MASTER SHARON GEORGE (Ag.)

2 1. The Claimant in her capacity as Administrator of the deceased (Rohan Wiggins) estate on behalf of his dependants and his estate sues the Defendant in negligence and for damages under the Law Reform ( Miscellaneous Provisions) Act and under the Fatal Accident Act, further to a motor vehicle accident on or around the 29th June, 2004, resulting in the death of the said Rohan Wiggins.

3 2. This claim was filed on the 14th October 2009. An application was filed on the 8th September, 2010 for among other things, to which I will return, personal service to be dispensed with and for substituted service based on the claimant's assertion by affidavit evidence, that the Defendant could not be found, and requesting substituted service on the insurers, the intervener in this matter.

4 3. The intervener has not taken issue with whether or not the Court is able to make such an order and so I will assume that the litany of cases both locally and abroad, which establish and rationalize substituted service on an insurer, where the insured cannot be found and even where the Insurer is not in contact with the defendant or able to locate him is accepted by the intervener, Jamaica International Insurance Company Ltd.

5 4. I will therefore now turn my attention to the bones of contention, which are the other matters sought in the Claimant's Notice of Application filed on the 14th October, 2010 and the intervener's contending Notice of Application filed 2nd November, 2010.

6 5. The other matters requested in the Claimant's Notice of Application are:

• (1) That the Claimant be permitted to make a claim out of time, for damages under the Fatal Accidents Act against the Defendant Mr. Jermaine Williams

• (2) That the Claim for damages under the Fatal Accidents Act which is presently incorporated in the Claim Form and Particulars of Claim filed on the 14th of October 2009 be allowed to stand.

• (3) That the validity of the Claim Form and Particulars of Claim be extended for a period of 6 months in order to facilitate service on the Defendant.

7 The Intervener's Notice of Application filed 2 ^nd November, 2010 sought the following:

• (1) Permission to intervene

• (2) That the Claim Form and Particulars of Claim filed on the 14th October 2009 has expired as at the time of the filing of the Claimant's Notice of Application, the 6 month period of validity stated on the Form had expired and therefore the claim should be struck out as having no validity.

8 Permission to Intervene

9 There might have been a possible contention as to the locus standi of the Intervener in the matters, other than the application for substituted service, but by Consent an Order granting Jamaica International Insurance Company Limited (JIIC) permission to intervene was granted thus disposing of the 1st aspect of the Application, without the raising of any issue of locus standi.

10 6. Issues

• 1. The time of the expiration of the claim form is given on the Claim form as 6 months and not 12 months; whether the claimant is now estopped from relying on the usual validity for 12 months as they are seeking to do. If this is so, then the Court would need not consider the other aspects of the Claimant's application and would be left with no alternative but to strike out the claim

• 2. The accident took place on the 29 ^th June 2004. In order to file a claim for damages in relation to the death of the deceased section 2 of the Fatal Accidents Act allows for this to be done within 3 years. The Claim was filed October 2009, some almost 2½ years after the time permitted.

• 3. The Claim was filed within 6 yrs of the limitation period allowed for actions in tort. The parties agree that as no specific provision is made as to a time period for a claim on behalf of the Estate/Dependants, in the Law Reform ( Miscellaneous Provisions) Act that therefore the usual 6 year for actions in tort is applicable. This would therefore make the expiry period 6 yrs from the 29 ^th June 2004 and would take us at a minimum to around the 29 ^th June 2010. They disagree as to when the cause of action accrued. The Claim having been filed in October 2009 is filed in time, under the Law Reform ( Miscellaneous Provisions) Act. This is so whether the cause of action accrued from the date of death or from when letters of administration was granted. The issue which arises is whether it expired by the time the Notice of application was filed for extension of the period in which to serve the Claim Form and if so, the relevance of this factor for the application to extend time to serve the Claim Form.

• 4. Whether as the Claimant submits and the Defendant/ Intervener rejects, the period for calculating the period, begins to run from the date of the grant of Letters of Administration and not the date of the incident/accident (death of the deceased) giving rise to this action.

• 5. Whether the expiry of the limitation period of the Claim under the Fatal Accidents Act, would be further compounded by any expiry of the claim under the Law Reform ( Miscellaneous) Provisions Act prior to any application to extend the Claim Form.

• 6. Whether the Claimant should in the event that the Claims have so expired, be denied the application to extend the period for service of the Claim form as otherwise the Defendant would be prevented from relying on any limitation defence.

• 7. If there be some doubt or dispute as to whether it has indeed expired to deny the application, thereby requiring the Claimant to re-file the Claim, if so desired, and so give the Defendant an opportunity to persuade the Court at that stage that the Claim is indeed statute barred and so raise/rely on any Limitation Defence.

11 7. Factual Position /Submissions Put forward by Applicant

• 1. On 29 ^th June, 2004 Rohan Wiggins met his death as a result of motor vehicle accident allegedly caused by the Defendant, Mr. Jermaine Williams.

• 2. A police report is exhibited as AVWJ to affidavit of Victoria Wiggins, mother of deceased, in support of application.

• 3. The police report of 27 ^th August, 2004 indicates that the Defendant Jermaine Williams was overtaking several vehicles along the Old Harbour Road and in so doing, collided with the vehicle of the deceased.

• 4. The Claimants have also produced police statements from passengers who are said to have been in the vehicle of the deceased at the time of the collision, which supports the police report.

• 5. The deceased was 33 years old at the time of his death and left behind 4 dependants being 2 children as well as his mother and father.

• 6. There was some dispute as to who was the “spouse” of the deceased at the time of his death and the Administrator General had difficulty obtaining information regarding his estate hence the delay in making the application under Fatal Accidents Act prior to 2009.

• 7. Attempts were made to serve the Defendant, Jermaine Williams but the process server was unable to locate him to effect personal service and in the interim the Claim form expired.

• 8. The Defendant was insured to Jamaica International Insurance Company Ltd. at the time of the accident.

• 9. JIIC have negotiated other claims arising out of the same motor vehicle accident.

• 10. Significantly, a letter from the Jamaica Constabulary Force indicates that the Defendant was convicted of Causing Death by Dangerous Driving on 8th December, 2005.

• 11. Difficulties (deponed by Counsel Ms. Thomas) of the Administrator General to administer the Estate included (i) ascertaining the location of relatives of the deceased and obtaining proof of the beneficiaries under the estate in particular proof of paternity and spouse-ship.

• b. Ascertaining whether an application was already made for Letters of Administration by any of the relatives of the deceased.

• c. Ascertaining the place of employment of the deceased and particulars regarding his income.

• d. Two women made separate applications to be declared spouse of the deceased-one woman, a Ms. Monteith retained counsel to bring a claim on behalf of the estate and had thereby entered into negotiations with JIIC in that regard.

• e. It was uncertain whether letters of Administration had been obtained on behalf of the estate of the deceased and on any claim filed in respect of the said motor vehicle accident.

• f. Correspondence passed between the parties, involved, counsel Ms. Thomas of Nunes, Taylor, Deacon and Company and between Mr. Mordecai for JIIC and Scott and Associates, the initial lawyer for Ms. Monteith.

• g. The Administrator General was not advised until May 2009 that neither women were declared “spouse” (No documentary evidence of this was supplied).

• i Thereafter Administrator General obtained letters of Administration (18 ^th June, 2009) (exhibited to affidavit of A. Thomas as ALT4).

• j. Particulars of claim and Claim filed on 14 ^th October, 2009.

• k. No notice of application to extend time filed at this stage due to oversight on the part of Counsel

• l. This was corrected on September 8, 2010 when the subject Notice of Application for Court Orders was filed.

• m. Notice of Proceedings advising of filing of claim under the Law Reform ( Miscellaneous Provisions Act) and under the Fatal Accident Act was filed and served on JIIC on October 16, 2009-(exhibited to affidavit of A. Thomas...