Ronald Chang and Another v Frances Rookwood and Another

• Jurisdiction: Jamaica
• Judge: Morrison, J.
• Judgment Date: 01 July 2016
• Neutral Citation: [2016] JMSC Civ 118
• Docket Number: CLAIM NO. 2008HCV02466 CLAIM NO. 2009HCV04059
• Court: Supreme Court (Jamaica)
• Date: 01 July 2016

[2016] JMSC Civ 118

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Coram: Morrison, J.

CLAIM NO. 2008HCV02466

CLAIM NO. 2009HCV04059

Between

Ronald Chang

1 ^st Claimant/Applicant

and

Natasha Chang

2 ^nd Claimant/Applicant

and

Frances Rookwood

1 ^st Defendant/Applicant

and

Nevado Listz

2 ^nd Defendant/Applicant

Consolidated With

Between

Felicia Vassell

1 ^st Claimant

and

Ayeesha Maxwell

2 ^nd Claimant

and

Ronald Chang

1 ^st Defendant

and

Natasha Chang

2 ^nd Defendant

and

Frances Rookwood

3 ^rd Defendant

and

Nevado Listz

4 ^th Defendant

And Consolidated With

Between

Frances Rookwood

1 ^st Ancillary Claimant/ 3 ^rd Defendant

and

Nevado Listz

2 ^nd Ancillary Claimaint/4 ^th Defendant

and

Ronald Chang

1 ^st Ancillary Defendant/1 ^st Claimant

and

Natasha Chang

2 ^nd Ancillary Defendant/2 ^nd Claimant

and

Advantage General Insurance Company

Respondent

Ms. D. Archer instructed by Kinghorn and Kinghorn for 1 ^st and 2 ^nd Applicants

Mrs. D. Senior-Smith instructed by Oswest Senior-Smith and Company for 3 ^rd and 4 ^th Applicants

Mr. L. Jack Hines for Vassell and Maxwell

Ms. J. Cummings instructed by Archer , Cummings and Co ; for Advantage General Insurance Company Limited

Application for costs and interests — whether Court to order payment of costs litigation at first instance, on appeal and on oral application for costs and interest by Respondent Principles — S 5, 8 and 18(1) of the Motor Vehicle (Third Party Risks) Act

1 At the very outset I wish it to be known that this court was without the case file and as such is totally dependent on the parties for the facts. Nevertheless, I think it is incumbent on me to refer to the Notice of Application to be Appointed Administrator Ad Litem and for An Order to pay Judgment by Instalments filed by Kinghorn and Kinghorn on the 17 ^th March, 2014 and heard by me over numerous dates. On the 23 ^rd day of April 2014 I ordered that Advantage General Insurance Company Limited (AGIC) ‘…do pay out to Frances Rookwood, Felicia Vassell and Ayeesha Maxwell the sums due and payable under the said policy of Insurance to the said persons in satisfaction of the Judgment of the Court in this matter as well as the costs awarded to the said parties within 21 days of the date hereof.’

2 AGIC has taken exception to the referenced order on a number of bases by the filing on May 6, 2014 of a Notice of Application for Court Orders. In this they relied on the affidavit evidence of Ruthann Morrison. The bases are, first, that AGIC was not a party to these actions nor the application in which the Order was obtained. Second, that by virtue of section 18(2)(b) AGIC was not served by either Claimant or Ancillary Claimant with the required Notice of Proceedings within the requisite (10) days of their claim to pay their claims / judgments. Third, that the insured Ronald Chang / Natasha Chang had discontinued their suit filed against AGIC and could only resolve their dispute with the latter by Arbitration as provided by their policy of insurance. Fourth, that the Claimant would not be prejudiced by the granting of this order. It is to be observed that the affidavit failed to comport with Rule 11.18 of the Civil Procedure Rules 2002 in that the Application to set aside filed by AGIC did not advert to the issue of whether ‘a good reason for failing to attend the hearing and that it is likely that had the Applicant attended some other Order might have been made.’ I decline to make any further comment as it is not necessary for the disposal of the issues spawned by this Application.

3 I wish now to advert to the orders which were sought and granted to Natasha Chang in her Notice of Application filed on 17 ^th March 2014. In it she had asked for the following orders to be made -

• ‘1. That there be a stay of execution of the Judgment of the 16 ^th August 2010 in this matter pending the hearing of this Application.

• 2. That Pursuant to Rule 21.7 and 21.8, the Applicant be appointed Administrator Ad Litem for and on behalf of the Estate of Mr. Ronald Chang for the sole and limited purpose of advancing these proceedings.

• 3. That Advantage General Insurance Company Limited be permitted to be heard and participate in these proceedings as an interested party.

• 4. That discloses to the Court the Policy of Insurance in respect of motor vehicle registration number 4633 DR, particularly, the amount under the policy of insurance that Advantage General Insurance Company Limited may be obliged to pay out to third parties who have sustained injuries as a result of a motor vehicle accident involving motor vehicle registration number 4633 DR.

• 5. That Advantage General Insurance Company Limited do pay out to Frances Rookwood, Felicia Vassell and Ayeesha Maxwell the sum due and payable under the said Policy of Insurance to the said persons in satisfaction of the Judgment of the Court in this matter.

• 6. That if the said sum due and payable under the Policy of Insurance is insufficient to satisfy the Judgment herein, the Court do make an Order stipulating how the said sum should be paid to the said Frances Rookwood, Nevado Listz,, Felicia Vassell and Ayeesha Maxwell.

• 7. That if the said sum due and payable under the Policy of Insurance is insufficient to satisfy the Judgement herein, Pursuant to Rule 47.5, the Court makes an Order allowing the Applicant time to pay the balance of the Judgement debt and permitting the Applicant to pay the balance of the Judgement debt in instalments.

• 8. That the costs of this Application be borne by Advantage General Insurance Company Limited.

• 9. That such further and/or other relief as this Honourable Court deems just be granted.’

4 The grounds upon which the Applicant rested her Application are now set out-

THE GROUNDS

• ‘i. Ronald Chang was at all material times the owner of motor vehicle registration number 4633 DR.

• ii. At all material times, and particularly on the 22 ^nd day of September 2007, motor vehicle registration number 4633 DR was insured with Advantage General Insurance Company Limited by dint of Insurance Policy Number 230151/001.

• iii. At all material times, and particularly on the 22 ^nd day of September 2007, the Applicant, Natasha Chang was an authorized driver of motor vehicle registration number 4633 DR and consequently was covered by Insurance Policy Number 230151/001 in respect of her driving of motor vehicle registration number 4633 DR.

• iv. On the 22 ^nd day of September 2007, Natasha Chang was involved in a motor vehicle accident while driving motor vehicle registration number 4633 DR. As a result of this motor vehicle accident. Frances Rookwood, Felicia Vassell and Ayesha Maxwell sustained personal injury and/or loss and damage.

• v. The said motor vehicle accident of the 22 ^nd day of September 2007 is the subject matter of the instant Claim.

• vi. Both this Honourable Court and the Court of Appeal have ascribed liability to the Applicant and Mr. Ronald Chang for the occurrence of the said accident and have awarded and confirmed Judgement in favour of Frances Rookwood, Felicia Vassell and Ayeesha Maxwell

• vii. Mr. Ronald Chang is now dead.

• viii. Advantage General Insurance Company Limited is liable under contractual principles and under The Motor Vehicle (Third Party Risk) Act to satisfy the Judgment made in favour of Frances Rookwood, Felicia Vassell and Ayeesha Maxwell.

• ix. Advantage General Insurance Company Limited has failed and/or refused to pay out the sum payable under the said policy of Insurance in satisfaction of the Judgement debt.

• x. The Applicant is the best person in the circumstances to be appointed Administrator Ad Litem for the limited purpose of advancing this Application for and on behalf of the Estate of Ronald Chang.

• xi. The Applicant is willing to pay the Judgement debt but wishes to have time to pay the said debt and in instalments. The Applicant however first wishes for the sum due and payable under Insurance Policy Number 230151/001 to be paid out to the said Frances Rookwood, Felicia Vassell and Ayeesha Maxwell pursuant to the provision of The Motor Vehicle (Third Party Risk Act.’

THE GROUNDS

5 The circumstances giving rise to the current application for costs and interest (by the second claimant Ms. Natasha Chang) can be tersely stated.

By way of background, Mr. Ronald Chang was the owner of a motor vehicle registered 4633 DR. It was being driven by Ms. Natasha Chang on the 22 ^nd day of September 2007 when it collided into the motor vehicle owned by Frances Rookwood registered 7796 FB and being driven by Nevado Listz, Ms. Felecia Vassell and Ms. Ayeesha Maxwell were passengers in the motor vehicle that was being driven by Nevado Listz.

6 At all material times AGIC were the insurers of Ronald Chang motor vehicle. A report of the accident was made by Mr. Ronald Chang's to them. In the result, AGIC conducted an investigation into the accident and advised the Changs to have the matter settled. However, the Changs who were resolute that Ms. Natasha Chang was not to blame for the accident instructed AGIC not to settle any claim made against Mr. Ronald Chang's motor vehicle policy of insurance made by any third party.

7 In consequence the Changs filed Claim No. 2008HCV02466 against Frances Rookwood and Nevado Listz and the defendants in turn filed a defence and counter claim on 19 ^th day of January 2009 in which they asked for a contribution as well as an indemnity.

8 The passengers in the Rookwood-owned motor vehicles, Felecia Vassell and Ayeesha Maxwell filed a claim against Frances Rookwood and Nevado Listz and against Ronald Chang and Natasha Chang. This is evidenced by Claim No. 2009HCV04059. Subsequently, Frances Rookwood and Nevado Listz filed an Ancillary claim against both Ronald Chang and Natasha Chang. Both...