Jamaica International Insurance Company Ltd v Administrator General for Jamaica

• Jurisdiction: Jamaica
• Judge: Panton P,Phillips JA,Brooks JA
• Judgment Date: 15 March 2013
• Neutral Citation: JM 2013 CA 26
• Docket Number: APPLICATION NO 22/2012
• Court: Court of Appeal (Jamaica)
• Date: 15 March 2013

[2013] JMCA App 2

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

APPLICATION NO 22/2012

Between

Jamaica International Insurance Company Limited

Applicant

and

The Administrator General for Jamaica (Administrator of the Estate of Rohan Wiggins, also Called Rhoan Wiggins, (Deceased))

Respondent

Jerome Spencer and Hadrian Christie instructed by Patterson Mair Hamilton for the applicant

Miss Tavia Dunn and Miss Ayana Thomas instructed by Nunes Scholefield Deleon and Co for the respondent

CIVIL PROCEDURE - Pleadings - Application to dispense with personal service of pleadings - Application to serve pleadings on applicant - That validity of claim form be extended for 6 months - That the near relations of the deceased be permitted to make a claim under the Fatal Accidents Act for damages for negligence

Panton P

1 Since we announced our decision in this matter, I have had the benefit of reading the draft reasons for judgment written by my learned sister Phillips JA. I am content in saying that the questions posed by my learned sister in paragraph [41] are sufficient to indicate the basis for our decision. I am of the view that every effort should be made to hasten the disposition of this matter. The reason advanced for the delay in this matter would be hilarious, were it not bordering on tragic.

Phillips JA

2 On 19 May 2011 there were two applications before Master George (Ag as she then was) in claim no 2009 HCV 05364 between the Administrator-General for Jamaica (Administrator of Estate Rhoan Wiggins otherwise called Rhoan Wiggins (deceased)), (the claimant in the suit below and the respondent herein) and Jermaine Williams. The first application was filed on 8 September 2010 on behalf of the respondent and claimed the following orders:

• ‘1. That personal service of the Claim Form and Particulars of Claim and all subsequent process herein on the Defendant, Jermaine Williams be dispensed with.

• 2. That the Claimant be permitted to serve the Defendant by serving the Claim Form and Particulars of Claim on the Jamaica International Insurance Company, his insurer's [sic] at the time of the accident.

• 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 of same on the Defendant.

• 4. That the near relations of the deceased be permitted to make a claim under the Fatal Accidents Act against the Defendant for damages for negligence arising out of a motor vehicle accident which occurred on the 29 ^th June 2004.

• 5. Such further order and or relief as this Honourable Court deems fit.’

This application was supported by three affidavits sworn to by Alvira Wiggins, Anthony Bentley and Ayana Thomas.

3 The other application before Master George was filed on behalf of the applicant herein, on 2 November 2010, and asked for the following orders, that:

• ‘1) Jamaica International Insurance Company Limited, having been served with The Claimant's Notice of Application for Court Orders dated September 8, 2010, be permitted to intervene;

• 2) The Claim Form and Particulars of Claim filed herein on October 14, 2009 stand struck out as having no validity.’

4 The learned master ruled as follows:

• ‘(1) Order granted in terms of paragraphs 1 —4 of the Claimant's Notice of Application filed September 8, 2010.

• (2) Paragraph 2 of the Intervener's application filed on November 2, 2010 dismissed. (Paragraph 1 previously granted).

• (3) Permission to appeal granted.

• (4) Claimant to serve Defendant by serving JIIC within 7 days of this order and proceedings be stayed for 30 days thereafter.

• (5) Costs agreed to the Claimant in the sum of $ 30,000.00

5 The notice of appeal, however, was not filed in time in accordance with the provisions of the Court of Appeal Rules (CAR) and so the applicant was forced to file an application for court orders on 9 February 2012 asking that it be permitted to file its notice of appeal within seven days (paragraph 1), with costs of the application being costs in the appeal (paragraph 2). The application was vigorously opposed and that was the matter that was before us for determination. On 1 March 2013, we made the following orders:

• ‘1. Paragraph 1 of the notice of application to extend time to file notice of appeal dated and filed 9 February 2012, is granted.

• 2. Costs of the application to the respondent.’

We promised to provide reasons for the orders granted. This is a fulfillment of that promise.

6 The application for extension of time was based on five grounds, which read thus:

• ‘1. The Applicant was granted leave to appeal the decision of Master George (Ag) on May 19, 2011 in Claim No. 2009HCV 05364 but has to date not filed its Notice of Appeal.

• 2. The delay in filing the Notice of Appeal, which is not excessive, was due to a misunderstanding on the part of the Applicant's current Attorneys-at-Law and ought not to be attributed to the Applicant.

• 3. The Applicant's prospective appeal has a real prospect of success and the prejudice to the Respondent were leave granted as prayed would be minimal, particularly in a context where the Respondent was guilty of far more lengthy delays in the proceedings in the court below.

• 4. The overriding objective favours the grant of the orders herein.

• 5. This application is made pursuant to Part 1 of the Civil Procedure Rules, 2002 and Rules 1.7(2)(b) and 1.11(2) of the Court of Appeal Rules, 2002.’

7 This application was supported by three affidavits namely, those sworn to by Trevor Patterson, Jeffrey Mordecai and Treveen Little. The respondent filed an affidavit in response which was sworn to by Ayana Thomas.

The proceedings below

8 The claim form and particulars of claim were filed on 14 October 2009, the claimant claiming in her capacity as administrator of the estate of Rohan Wiggins and on behalf of the dependants of his estate, Javian Wiggins, born on 10 December 1991 and Brittany Wiggins, born on 4 May 2002, minor children of the deceased, against Jermaine Williams damages for negligence and interest under the Law Reform (Miscellaneous Provisions) Act (LRMPA) for the benefit of the estate of the deceased. The deceased had died on 29 June 2004 at the age of 33 years, as a result of a motor vehicle accident which occurred on 29 June 2004 along the Old Harbour Road in the parish of Saint Catherine. It was alleged that as a result of the accident the deceased's life expectancy had been shortened and his estate had suffered loss and damage and had incurred expenses. There was also a claim made pursuant to the Fatal Accidents Act (FAA) brought on behalf of the said minor children, dependants of the deceased, as it was pleaded that the deceased was an affectionate and dutiful father, and by his death his dependants would have been deprived of the deceased's support. Particulars of negligence and of special damages were duly set out.

9 Subsequent to the filing of the originating proceedings, the applicant was served the notice of proceedings, which had been filed in court as required by the Motor Vehicles Insurance (Third-Party Risks) Act. The respondent's said application referred to in paragraph [2] herein, filed on 8 September 2010, was served on the applicant's attorneys-at-law on 23 September 2010. The application was supported firstly by the affidavit of Anthony Bentley sworn to on 29 October 2010 who deposed to his unsuccessful efforts to effect service of the claim form, particulars of claim and other accompanying documents prescribed by the Civil Procedure Rules (CPR) on Mr Williams at his known place of abode at 851 Willowdene Thruway Spanish Town in the parish of Saint Catherine. Mr Bentley stated that he had made several attempts in the month of December 2009 to locate Mr Williams but had found no-one there. He had also made several inquiries in the area up to June 2010 and had been unable to obtain any information as to his whereabouts. He therefore returned the documents to the attorneys for the respondent. This affidavit was filed on 1 November 2010.

10 The affidavit of urgency of Alvira Wiggins, mother of the deceased, was also sworn to on 29 October 2010. It spoke to the death of her son in the motor vehicle accident and attached the police report of the accident dated 27 August 2004 and a letter of 13 January 2006 from the Jamaica Constabulary Force attaching statements of passengers in the deceased's vehicle at the time of the collision. The letter, which was written by the superintendent of police of the St Catherine North Division, in respect of the estate of Rhoan Wiggins, stated that Mr Williams had been convicted of the offence of causing death by dangerous driving for which a fine of $100,000.00 or nine months imprisonment had been imposed. The statements were from Jennifer Monteith who claimed to be the fiancé of the deceased and who had been seated in the front passenger seat of the deceased's motor car. In her statement she said that she had seen a motor vehicle approaching the deceased's car while overtaking another car around a corner at a fast speed. There was a collision; she felt the impact of the same and could not recall anything else. She was taken to the hospital. She received injuries to her head, chest and her right leg which had been broken in two places.

11 The second statement was from Mr Dennis Wiggins, the brother of the deceased, who was seated in the rear of the car. He too suffered injuries to his face, mouth, neck, chest, right leg and his right arm had been broken.

12 The third statement was from Corporal Wilfred James who had investigated the motor vehicle accident. His statement contained information about the width of the road, the damaged vehicles, and his visit to the Spanish Town Hospital...