More Questions Than Answers? Caribbean Jurisprudence on the Duty of Uberrimae Fides
| Author | Lesley A. Walcott |
| Pages | 76-100 |
More Questions Than Answers?
Caribbean Jurisprudence on the
Duty of Uberrimae Fides
Lesley A. Walcott1
1. Introduction
My colleagues have made important contributions on a myriad
of issues relating to administrative law, public international law,
employment law and intellectual property, contributions which cover
a broad range of topics deepening our understanding of Caribbean
the fundamental doctrine of , or utmost good faith, as
manifested in Caribbean jurisprudence.
In evaluating Caribbean jurisprudence, it must be acknowledged
that the doctrine of today bears little resemblance to
that contemplated in 1766.2
complexity and increasing the burden placed on the insured. Despite the
oft-stated mutuality of the duty,3 in reality, it is its imposition on the
insured, rather than the insurer which has contributed to the volume
of case law on point. Regional jurisprudence, while enlightening on the
parameters of the duty of utmost good faith, must be assessed against
the constant thread running throughout the discussion, namely, the
pervasive tension between the insured and the insurer. Certainly in an
environment devoid of statutory/self-regulatory assistance,4 the common
regional jurisprudence depicts a robust enthusiasm for the seminal House
of Lords decision of Pan Atlantic Insurance Co Ltd v Pine Top Insurance
1. This chapter is a condensed version of a paper delivered on 3 April 2008 at the UWI Faculty of
Law’s Commercial Workshop Series.
2. Carter v Boehm (1766) 97 ER 1162, (1766) 3 Burr 1905 (KB). See further R.A. Hasson, ‘The Doctrine
of Uberrimae Fides in Insurance Law – A Critical Evaluation’ [1969] MLR 615.
3. La Banque Financiere de la Cite SA v Westgate Insurance Co Ltd [1991] 2 AC 249 (HL).
4. In the Caribbean there is no comprehensive control of policy terms. Section 155 of the St Lucia
Insurance Act Cap 12:08 [2001 Rev], simply provides that all policies must be in clearly legible
letters. Most regional Insurance Acts contain a provision relating to the misstatement of age.
See, for example, Barbados Insurance Act 1996–32 s 109; Guyana Insurance Act 1998–20 s 132;
Jamaica Insurance Act 2001–26 s 93; Trinidad and Tobago Insurance Act Cap 84:01 s 122(4). The
position in the Caribbean is in stark contrast to that obtaining elsewhere. See further, infra at n 25.
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More Questions Than Answers?
Co Ltd.5 The danger with this however is that there is a tendency to
neatly present this decision as the ‘solution’ and to ignore many of the
2. Statutory Assistance on the Doctrine of Utmost
Good Faith?
whether there exists any statutory assistance on the doctrine of utmost
good faith. The statutory origins of Anglo-West Indian insurance law
lie in the United Kingdom’s Life Assurance Act of 1774,6 the Gaming
Act of 1845,7 the Married Women’s Property Act 18828 and the Marine
Insurance Act 1906.9 This eighteenth and nineteenth century United
Kingdom legislation represents the foundation of Caribbean insurance
law and the extent to which it continues to be relevant today, is dependent
on whether the jurisdiction has embraced the Caribbean Law Institute
(CLI) initiative.10 The CLI Insurance Bill has been implemented in
Barbados,11 Guyana,12 Jamaica,13 and in St Vincent and the Grenadines14
and, perhaps prompted by the current economic crises, more recently
in St Kitts and Nevis15 and the Commonwealth of The Bahamas.16
Representing the stimulus for the emancipation of insurance law from
its colonial roots towards a more indigenous regime, the CLI model has
territories which have enacted the model bill, insurers are subject, inter
alia, 17
statutory funds,18 and share capital,19 while additionally, the regulator’s
5. [1995] 1 AC 501 (HL).
6. 14 Geo 3 c 48.
7. 8 & 9 Vict c 109.
8. 45 & 46 Vict c 75.
9. 28 Geo 3 c 56.
10. In April 1989, the CLI produced a Survey Report on the Status of Insurance Law in the
1990, the CLI established an Insurance Law Advisory Committee. The result was the Caribbean
Law Institute Model Insurance Bill 1993, the Caribbean Law Institute Model Motor Vehicles
Insurance Bill of 1993, the Insurance Association of the Caribbean Revision 2000 (CLI/CLIC 2000),
and the Insurance Association of the Caribbean Revision 2000 (IAC Revision 2000).
11. Barbados Insurance Act (n 4).
12. Guyana Insurance Act (n 4).
13. Jamaica Insurance Act (n 4).
14. St Vincent and The Grenadines Insurance Act 2003-45.
15. Saint Christopher and Nevis Insurance Act 2009-8.
16. Bahamas Insurance Act Cap 347.
17. Trinidad and Tobago Insurance Act (n 4) s 21; Barbados Insurance Act (n 4) s 9; Guyana Insurance
Act (n 4) s 40.
18. Barbados Insurance Act (n 4) s 25; Guyana Insurance Act (n 4) s 46.
19. For example, s 12 of the St Lucia Insurance Act (n 4) stipulates that the share capital for long term
insurance is $1 million dollars for a local company and $2 million dollars for a foreign company.
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