Mecheck Willis v Globe Insurance Company Ltd

 
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[2012] JMSC Civ 68

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV05538

Between
Mecheck Willis
Claimant
and
Globe Insurance Company Limited
Defendant
JUDGMENT-DELIVERED AS ORAL JUDGMENT
Insurance Law
Mangatal J
1

This is a claim in which the Claimant ‘Mr. Willis’ seeks answers to a number of questions and asks for declarations in respect of certain issues arising between himself and the Defendant ‘Globe Insurance’. The first and integral question is this:

Whether Globe Insurance is liable to Mr. Willis under the Motor Vehicle Insurance (Third Party Risks) Act in respect of a judgment of the Supreme Courtin Claim No. 2007 HCV 00460 against Globe Insurance's insured Yvonne Flynn and Patrick Flyn.

2

I shall for the most part, from this point on, refer to the Motor Vehicle Insurance (Third Party Risks) Act as ‘the Act.’

3

Mr. Willis unfortunately received some very serious injuries in a motor vehicle accident on the 27 th of January 2001. At paragraph 3 of his Affidavit in Support of Fixed Date Claim Form, filed 6 th September 2011, Mr. Willis states that the motor vehicle accident was caused by the negligence of Devar McFarlane who was the driver and servant and/or agent of the owners of a motor vehicle registration number 8880BW, that is, Yvonne and Patrick Flynn, at the time of the accident. The accident occurred along the Phoenix Main Road, in the Parish of Saint Ann. According to paragraph 6 of Mr. Willis Affidavit of 6 th September 2011, the judgment that was awarded in the 2007 Suit was awarded against Yvonne Flynn and Patrick Flynn for damages and interest and costs amounting to in excess of $34 Million. Globe was at the material time the insurer of the motor vehicle belonging to Yvonne and Patrick Flynn.

4

After being served with Notice of the Proceedings in the 2007 Claim, Globe's Attorneys-at-Law wrote to Mr. Willis' Attorneys-at-Law who had filed that Suit indicating that they were denying liability to indemnify Yvonne and Patrick Flynn. The reason stated was that it was because the vehicle in question was at the material time being operated in breach of the terms and conditions of the policy of insurance. In response to Mrs. Taylor-Wright's letter to Globe dated 20 th July 2011 enclosing a copy of the Judgment obtained in the 2007 Suit, Globe, by letter dated 25 th July 2011, responded saying that ‘at the time of the accident, the driver of the policyholders' vehicle did not have a driver's licence, and was not authorized/ permitted to drive the vehicle.’ They indicated that they had on that basis denied indemnity to the policyholders. I note that an application for declaratory orders was prior to the filing of this law suit, filed by Globe, in Claim No. 2010 HCV 00942, Globe Insurance Company of Jamaica Limited v. Yvonne and Patrick Flynn. In that Suit Globe sought a declaration that it was not obliged to indemnify the Defendants under the policy against any claims arising out of the accident while the motor vehicle was being driven by Mr. McFarlane, (erroneously referred to as Denver and not Devar McFarlane).

5

The defence to these proceedings is that the driver of the Flynns' motor vehicle, Devar McFarlane, who is deceased, was 16 years of age at the time of the accident, he was not the holder of a valid driver's licence and was therefore not permitted under the law to drive or operate the motor vehicle at the time. This denial of liability to settle the judgment, interest and costs awarded in the 2007 claim is what has led to the filing of the present claim.

6

When this matter first came up for hearing on the 19 th April 2012, I had not had the benefit of reading any written submissions or viewing any of the authorities that were being relied upon beforehand. As a result, I adjourned the matter to the 24 th of April 2012 for 3 hours. I ordered the parties to file and serve written submissions by 10 a.m. on the 23 rd of April 2012. The parties complied, and filed written submissions and provided legal authorities.

7

Unfortunately, when the matter came up on the 23 rd Mr. Johnson, Counsel for Globe, had a personal emergency so the matter was not proceeded with. The matter was then adjourned to the 22 nd of May at 10 a.m. for 3 hours.

8

In the interim, Counsel Mr. Johnson did a number of things on behalf of Globe. Firstly, he obtained orders ex parte from Gayle J., to issue Witness Summonses for 2 persons. Ex parte, meaning without notice, is a method permissible under rule 33.3 of the Civil Procedure Rules, ‘the CPR’. Amongst the orders made were that witness summonses be issued requiring the attendance of Gertrude McFarlane, and David McFarlane at the hearing on the 22 nd of May. Mr. Johnson had also filed an Affidavit on May 14 2012, that Affidavit being the ‘Affidavit of David Arthur Johnson’.

9

Mrs. Taylor-Wright, on the 21 st of May 2012, filed Further Written Submissions, objecting to this late filing of the Affidavit of Mr. Johnson and the calling of the witnesses. At first, Counsel Mrs. Taylor-Wright had made her objections on the basis that the matter was part-heard before me. Mr. Johnson did not share Mrs. Taylor-Wright's view. However, when both Counsel appeared before me, I indicated that it was not at all my understanding that because I had ordered written submissions and they were filed, that this made the matter part-heard. All I had been doing was using my case management powers to better organize the matter and render it capable of being completed in the time allotted, and facilitating a decision being made in the most efficient and timely way. Mrs. Taylor-Wright graciously, (and correctly, in my view), revised her submission, and conceded that the matter was not part-heard. She nevertheless was insistent that it would be unfair to allow the evidence proposed to be admitted at this late stage. I asked Mrs. Taylor-Wright whether, if I acceded to Mr. Johnson's application, she would need more time or need me to adjourn the matter in order to prepare herself. In response, Mrs. Taylor-Wright indicated that she would not require more time. Indeed, just as she had intimated on the 24 th of April 2012, she was prepared to rest upon her written submissions.

10

Mr. Johnson submitted that, for a number of reasons, the overriding objective of dealing with cases justly would be met if the court were to allow the evidence in.

11

I agreed to allow Mr. Johnson to rely upon his Affidavit albeit it was filed late, and I also agreed to allow the witnesses summoned to give viva voce evidence in chambers. In my view Mr. Johnson's Affidavit was not really dealing with any new matters, as it dealt with one of the same points being raised by Globe all along. This was that Devar McFarlane was not the holder of a driver'slicence. Therefore Mr. Willis and his Counsel were not taken by surprise based on the material in the affidavit. Also, it appeared to me that the purpose of receiving the evidence from the witnesses summoned was important in order to deal with some of the real issues in controversy between the parties, i.e. as to the age of Devar McFarlane at the time of the accident. In my view, things have to be put in perspective and dealt with proportionately. To my mind, the relative importance of the evidence to Globe's case, exceeded any inconvenience which the Claimant might suffer. In my view, the inconvenience could be compensated for in costs or by allowing Mr. Willis' Counsel further time, if needed. Mr. Willis would not therefore suffer any undue prejudice. After I made my ruling, I again asked Mrs. Taylor-Wright whether she would need time to respond to the new evidence or to seek further instructions or information, but she again indicated that she would rest on her earlier written submissions.

12

Mrs. Taylor-Wright has made a wide-ranging series of objections to the use of the Affidavits filed on behalf of Globe, this even before the Affidavit of Mr. Johnson filed May 14 2012. She submitted that in all the Affidavits there has been non-compliance with Rule 30 of the Civil Procedure Rules 2002. She submits that the form renders them defective and inadmissible in that they contain hearsay and do not state the sources of information and belief. Mrs. Taylor-Wright also labelled as a defect the fact that the name of the Justice of the Peace on some of Globe's Affidavits ‘remains a mystery’. However, Mr. Johnson countered by pointing to the fact that in Mr. Willis' First Affidavit, i.e. the very first Affidavit in support of the Claim, filed 6 th September 2011, the name of the Justice of the Peace also cannot be made out. I really do not intend to get into those types of issues as I think that there are...

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