East (Waltraud) v Insurance Company of the West Indies
| Jurisdiction | Jamaica |
| Judge | FORTE. P . , SMITH, J.A . , K. HARRISON J.A : , FORTE, P . |
| Judgment Date | 29 July 2005 |
| Neutral Citation | JM 2005 CA 50 |
| Judgment citation (vLex) | [2005] 7 JJC 2911 |
| Court | Court of Appeal (Jamaica) |
| Date | 29 July 2005 |
INSURANCE LAW - Motor vehicle
ORDER :
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(1) Appeal is dismissed
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(2) Costs of the appeal to the respondent to be taxed if not agreed.
I have had the opportunity of reading in draft the judgment of K. Harrison, J.A. I agree with his reasons and conclusions and there is nothing useful that could be added.
I agree with the judgment of Harrison, J.A., and there is nothing useful that I could contribute.
Introduction
This is an appeal from the judgment of Miss Justice Smith delivered on the 6 th February 2004, arising from a suit filed by Waltraud East ("the appellant") against Insurance Company of the West Indies ("the respondent") pursuant to section 18(1) of the Motor Vehicles Insurance (Third Party Risks) Act. The question which the appeal raises is whether the learned trial judge was correct in finding that the Respondent had proved that there was a policy limit of $750,000.00 to any claim under the relevant insurance policy for injury to one person as a result of a motor vehicle accident.
The background facts
In 1987, a policy of Insurance was issued by Motor Owner's Mutual Insurance (MOM) to Triple "C" Electrical Construction Company ("the insured") covering liability incurred by the insured in relation to death or bodily injury sustained by an individual in a motor vehicle accident.
On the 19 th November 1987, the appellant's husband was involved in a motor vehicle accident along Moneague main road in the Parish of St. Ann and he was fatally injured. The accident was due to negligence on the part of the insured's driver whilst he was driving motor truck registered CC 357D. MOM was insurer of the insured's motor truck at the material time.
The appellant, who was a passenger in her husband's motorcar was seriously injured in this accident. On the 8 th September 1989, she brought an action in the Supreme Court against the insured and its driver, in order to recover damages in respect of her injuries, loss and expense.
On the 18 th July 2000, she was awarded damages against the insured in the sum of $20,784,964.51 in addition to interest and costs.
In or about 1988, MOM ceased doing business and the Respondent acquired its insurance portfolio.
The Appellant contends that by reason of the provisions of section 18(1) of the Motor Vehicles Insurance (Third Party Risks) Act, the Respondent is liable to pay the amount of the judgment debt, interest and costs. In the circumstances, Attorneys at Law for the Appellant, requested payment of the judgment debt from the Respondent.
The Respondent refused initially to pay the judgment debt. It contended that a copy of the Notice of Proceedings was not served on it. After further discussions however, the Respondent paid the policy limit of $750,000.00 to the Appellant in March 2001. Despite this payment, the Appellant filed suit against the Respondent in the Supreme Court on the 9 th January 2002, in order to recover the balance of the judgment debt.
At the time of trial, the schedule to the policy issued in 1987 was lost. The Respondent relied however, upon secondary evidence. Mrs. Carmen Singh and Mrs. Gretchen Garriques, both insurance executives, gave evidence on behalf of the Respondent with regard to the contents of the lost policy schedule that was in force at the time of the accident.
The appellant was unsuccessful in her claim against the Respondent. The learned trial judge found on the evidence presented, that the Respondent had satisfactorily proved that there was a statutory limit of $2,000.00 and a policy limit of $750,000.00 to a claim under the insurance policy for injury to any one person.
Challenges
The Appellant now challenges the following findings of fact and of law made by the learned judge.
(a) Findings of fact
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(i) That the evidence of Mrs. Carmen Singh who was employed to MOM at the time when the insurance policy was in force is a witness whose testimony can be relied on regarding the policy limit at the time of the accident.
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(ii) That the evidence of the said Carmen Singh that she could not remember any particulars of the policy schedule that was issued immediately before the one in question or the one issued immediately thereafter did not make her evidence unreliable.
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(iii) That the policy in force at the time of the accident was limited to $750,000.00 for death or bodily harm to any one person.
(a) Findings of Law.
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(i) That the Appellant cannot recover more than the statutory limit, or the sum assured under the policy for death or injury to any one person.
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(ii) That the Appellant was not entitled to recover interest as claimed due to the finding of facts that there was a policy limit of $750,000.00 in force at the date of the accident.
The Grounds of Appeal
Ground 1 reads as follows:
"1. The learned trial judge failed to give the correct interpretation of section 18(1) of the Motor Vehicles Insurance (Third Party Risks) Act and thereby came to the wrong conclusion that the Claimant was not entitled to recover more than the limit under the insurance policy which was in force at the time of the accident."
Dr. Barnett did not pursue ground 1 for good reason. The interpretation of section 18(1) of the Motor Vehicles Insurance (Third Party Risks) Act ("the Act") was decided in Global Insurance Company of the West Indies v Johnson and Stewart SCCA 70/99 (un-reported) delivered on the 14 th April 2000. That case held that on a true interpretation of section 18(1) of the Act, it was the statutory minimum and not the policy limit that is the ceiling for recovery by a third party. The Court of Appeal recognized and treated itself bound by the decisions of the Judicial Committee of the Privy Council: see Suttle v Simmons [1989] 2 Lloyd's L.R 227; Matadeen (in substitution for Suresh Matadeen, deceased) v Caribbean Insurance Co. Ltd. Privy Council Appeal No. 46 of 1999 delivered on the 19 th December 2002 (unreported) and Goberdham v Caribbean Insurance Co. Ltd. [1998] 2 Lloyd's L.R 449.
Ground 2
The appellant contends that:
"The learned trial judge wrongly received and admitted oral evidence from the witnesses Carmen Singh and Gretchen Garriques of the contents of the policy schedule which the Defendant/Respondent say (sic) was in force at the time of the accident, and allowed it to influence her mind in coming to her decision that the policy in force at the time of the accident was one which limited coverage to the insured for death or injury to any one person to the sum of $750,000.00."
The reception of secondary evidence and findings by the learned trial judge
Dr. Barnett submitted that a proper foundation was not laid for the reception of secondary evidence. In the circumstances, he submitted that the learned trial judge was in error when she concluded that there was acceptable evidence with regard to the policy limit. He argued that the learned judge had not seen the original or a copy of the insurance policy schedule so several possibilities could arise with regard to the policy limit. First, he says that there maybe an express policy limit that is equivalent to the statutory minimum. Second, there maybe, an express policy limit which is dependent on the agreement negotiated by the parties. Third, there maybe, no policy limit in place. Fourth, if there is a policy limit, it may only be applicable in certain defined circumstances.
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