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By Cecil R. Jaipaul, Honorary memeber of the Insurance Institute of St. Vincent and

the Grenadines

MEH NAH NO MEK ME AH TELL YO DIS

 

Recently, about 3,000 kilometers away, in the 8,867.2 square miles Caricom country of Belize, with a population of 366,954 (2016), Madam Justice Shona O. Griffith of the Supreme Court, decided the case of Geon Hanson v. Home Protector Insurance Co. Ltd [2017] (released 18th day of January, 2017).  In this case, the Claimant Geon Hanson, was by virtue of Judgment in Supreme Court, awarded damages for personal injuries in excess of the statutory $50,000, as well as interest on that sum and costs. The Defendant insurer, Home Protector Insurance Co. Ltd. was the insurer of the at fault driver and thereby liable under a policy of third party insurance for the damages awarded to the Claimant. The Insurance Company acknowledged its liability under the Judgment but only to the extent of the statutory limit of $50,000. The Claimant also sought payment of the interest and legal costs which were awarded to him, alleging that section 19 of the Belize Motor Vehicle Insurance (Third Party Risks) Act, entitled him to recover the interest and costs over and above the sums awarded to him as damages. The only issue for decision in this case was one of law – that being the interpretation of section 19 of the Act – namely, whether the limit on liability applied inclusive of interest and costs.

Meh nah no mek me ah tell yo dis

 

Well, this case is of importance to the 150.2 square miles Caribbean islands of Saint Vincent and the Grenadines and is population of 109,642 (2016 world bank), because it allows us to draw a comparison between the Belize and Saint Vincent and the Grenadines legislations and see how the court will likely interpret it:

Cecil Jaipaul is an Insurance Consultant and Mediator, and author of 'The Eductor' newletter.  He can be contacted at crjaipaul@rogers.com

The Educator - May 2017

 

BELIZE MOTOR VEHICLE INSURANCE (THIRD PARTY RISKS) ACT

19.–(1) If, after a certificate of insurance has been issued under section 4(3) of this Act, in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under section 4(1)(b) or (c) of this Act (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgment…… (Judge’s emphasis)

19.-(4) If the amount which an insurer becomes liable under this section to pay in respect of a liability of a person insured by a policy exceeds the amount for which he would, apart from the provisions of this section, be liable under the policy in respect of that liability, he shall be entitled to recover the excess from that person. (Judge’s emphasis)

SAINT VINCENT AND THE GRENADINES MOTOR VEHICLES INSURANCE (THIRD PARTY RISKS) ACT

8. Duty of insurers to satisfy judgements against persons insured in respect of third party risks

 

(l) Where, after a certificate of insurance has been issued in favour of the person by whom a policy has been effected, judgement in respect of any liability required to be covered by a policy, has been entered, then, notwithstanding that the insurer may be entitled to avoid, cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section and to any limitations on the total amount payable under the policy in consequence of that subsection, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability in addition to any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgements. (My emphasis).

 

(5) If the amount that an insurer becomes liable under this section to pay to any person exceeds the amount that he would, apart from this section, be liable under the policy in respect of that liability, he is entitled to recover the excess from that person. (My emphasis)

Closer to home, nine years ago, in the 35.14 square miles island of Anguilla with a population of 15,000 (2016), the High Court, in Jackilyn Henry McGibbon v. National General Insurance Corporation N.V. [2008], considered the insurer’s obligation to pay the policy limit including interest and costs. Let us compare the Anguilla and Saint Vincent legislative provisions:

ANGUILLA MOTOR VEHICLES INSURANCE

(THIRD PARTY RISKS) ACT

 

“6 (1) If after a certificate of insurance has been issued under section 3(4) in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under section 3(1)(b) and (c) (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. (Judge’s emphasis).

SAINT VINCENT AND THE GRENADINES MOTOR VEHICLES INSURANCE (THIRD PARTY RISKS) ACT

8. Duty of insurers to satisfy judgements against persons insured in respect of third party risks

 

(l) Where, after a certificate of insurance has been issued in favour of the person by whom a policy has been effected, judgement in respect of any liability required to be covered by a policy, has been entered, then, notwithstanding that the insurer may be entitled to avoid, cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section and to any limitations on the total amount payable under the policy in consequence of that subsection, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability in addition to any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgements. (My emphasis)

In Hanson the Belize Supreme Court, accepted the decision of the Trinidad and Tobago Court of Appeal in the case of Presidential Insurance Co. Ltd. v Stafford (1997) (TT section 10) and other regional jurisprudence (see the August 2017 issue of The Educator), and decided, in addition to the maximum liability of $50,000 as limited by paragraph (iv) of section 4(1)(c) of the Motor Vehicle Insurance (Third Party Risk) Act, the Claimant is entitled to recover both interest on the judgment and legal costs.

 

However, in McGibbon, Madam justice Janice George-Creque, of the Grenada High Court rejected the Trinidad and Tobago Court of Appeal decision in Presidential Insurance Co. Ltd.  v Stafford, where Hamel–Smith JA concurred with Sharma J.A. in concluding that the word “including” meant “as well as”.   George-Creque J: ruled that the amount to which the claimant is entitled to claim from NAGICO, ”whether in respect of damages, interest and/or costs, is limited to the statutory limit of $10,000.”

 

Legal minds may now argue that McGibbon is now dated.

Using the excerpts below, let us now compare the similarities between the Trinidad and Tobago (Revised) and Saint Vincent and the Grenadines legislations:

TRINIDAD AND TOBAGO MOTOR VEHICLES INSURANCE

(THIRD PARTY RISKS) ACT

10. (1) If, after a certificate of insurance has been delivered under section 4(8) to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under section 4(1)(b) (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, in addition to any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgments. (My emphasis)

SAINT VINCENT AND THE GRENADINES MOTOR VEHICLES INSURANCE (THIRD PARTY RISKS) ACT

8. Duty of insurers to satisfy judgements against persons insured in respect of third party risks

 

(l) Where, after a certificate of insurance has been issued in favour of the person by whom a policy has been effected, judgement in respect of any liability required to be covered by a policy, has been entered, then, notwithstanding that the insurer may be entitled to avoid, cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section and to any limitations on the total amount payable under the policy in consequence of that subsection, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability in addition to any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgements. (My emphasis)

Of importance to Saint Vincent and the Grenadines, the Trinidad & Tobago Court of Appeal, in Presidential Insurance directly considered the phrase ‘including costs and interest’ arising in the same manner in the Trinidad equivalent of section 8 (1). Sharma JA posed the issue to be determined in the following terms:-

 

The question is really does the word ‘including’ in the section serve to emphasise that the amount payable by the insurer is limited

to the sum which he is required to pay under the policy and no more, in other words is it restrictive in its meaning? Or is it a word

of extension in that it operates to render the insurer liable to pay costs and interest in addition to the sum; in other words, to mean

‘as well as’?

The answer may be found in a closer examination of the Saint Vincent and the Grenadines Motor Vehicles Insurance (Third Party Risks) Act which states in section 8 (l):

 

the insurer shall, …………, pay to the persons entitled ……… any sum payable thereunder in respect of the liability in addition to any amount payable in respect of costs and any sum payable in respect of interest on that sum

 

While our regional courts are accepting that the third-party claimant is entitled to be paid not only the statutory limit but in addition, costs and interests on that statutory limit, it is on this trend and recent authorities (see a wider analysis in the August 2017 issue of The Educator), that a Claimant in Saint Vincent and the Grenadines will likely seek an order for payment of her claim for damages, up to the policy or statutory limit, in addition legal costs and interest.  

 

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Cecil Jaipaul is an Insurance Consultant and Mediator.  He can be contacted at crjaipaul@rogers.com

 

NOT LEGAL ADVICE. Information made available in this Blog in any form is for information and educational purposes only. It is not, and should not be taken as legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read in this Blog.

HE "PULLED A LINE" ..... A FEW REMINDERS ON THE LAW OF CONTRACT

June 2017

By Cecil R. Jaipaul, Honorary member of the Insurance Institute of Saint Vincent and the Grenadines.

 

Insurance practitioners are aware of the essentials of a valid contract and how they apply to insurance and commercial contracts.  Let us look at some of these essential elements of a contract.

 

Offer and acceptance

Mr. Brian Williams owned a parcel of land at Lower Derrick/La Pompe, Bequia. In 2004, Ms. Merlene Ollivierre and Mr. Brian Williams had an agreement whereby he undertook to sell her the  land for $27,000.00 and she accepted.

 

Consideration

Ms. Ollivierre paid Mr. Williams $21,000.00 by 4 installments of $5,000.00, $14,000.00, $1000.00 and $1,000.00 respectively. She went into occupation of the property in October of that year. Ms. Ollivierre insisted that the agreement was finalized in March while Mr. Williams maintained that it was in July.

 

Capacity to contract

Both Ms. Ollivierre and Mr. Williams are of legal age and sound mind to enter into a contract for the sale of the land.

 

Consensus

Mr. Williams acknowledged the existence of the agreement for sale of the land. In contractual terms, this satisfies the requirements of consensus ad idem.  In particular, it refers to the situation where there is a common understanding in the formation of the contract.

 

However, there were some disagreements after the formation of the contract.  Ms. Ollivierre stated that her agreement with Mr. Williams was that he would execute the deed after she had paid half of the purchase price.

Madam Justice Esco L. Henry said:

... I find that the parties had a contract for the sale and purchase of the subject land. I hold that the two express terms regarding payment was that the purchase price was $27,000.00 and that Mr. Williams would execute the deed in Ms. Ollivierre's favour after she had paid half of the purchase price.

 

While not a factor directly related to the principle of consensus, in assessing the credibility of Mr. Williams, Madam Justice Esco L. Henry said:

 

Mr. Williams struck me as a very „dodgy‟ witness. His demeanour and attitude was testy and not forthcoming. He did not impress as a witness of truth. At one point, he was encouraged to speak up and he responded that he could speak no louder, however during cross-examination he raised his voice on more than one occasion thereby demonstrating that he was less than truthful when he claimed that he could speak no louder. Where his account differs from the other witnesses, theirs is preferred.

 

... I therefore accept Ms. Ollivierre's testimony that she had his consent to go onto the land and carry out the excavation works. I find that he did not put a stop to the excavation as he claimed but rather assisted Ms. Ollivierre and her companions to identify the boundaries by "pulling the line".

 

Legality

The object of the contract was the sale of a parcel of land - a quite legal activity in Saint Vincent and the Grenadines.

 

However, regarding the sale of land, the law stipulates that for a deed to have legal force it must be registered under the Registrations of documents Act.  In this case, Mr. Williams would not have deprived himself of any interest, right or title in the subject property by executing the deed before receiving the final payment. He could have done so and simply showed the executed deed to Ms. Ollivierre to activate the final payment.

 

Breach of contract

Ms. Ollivierre claimed that Mr. Williams breached the contract as he failed to execute the conveyance to her as agreed and she therefore refused to pay him the balance of the purchase price. Ms. Ollivierre seeks special damages of $5,500.00, restitutionary damages or damages for unjust enrichment in the sum of $21,000.00 with interest and costs.

 

In his argument, Mr. Williams claimed against Ms. Ollivierre for specific performance of the contract or alternatively rescission; a declaration that he is entitled to a lien on the down payment; general damages; damages for trespass or alternatively reinstatement in the amount of $40,000.00 for damage caused to the land and costs.

 

Remedy

Madam Justice Esco L. Henry found that by failing to execute the deed before receiving the final payment, Mr. Williams breached the oral agreement.  She ordered Mr. Williams to execute the deed of conveyance to Ms. Ollivierre, and that Ms. Ollivierre pay the balance of the purchase price, both with set timelines and conditions relating to the payment and execution of the deed.

Source: Saint Vincent and The Grenadines High Court Case of  Merlene Ollivierre v. Brian Williams [2017]


Cecil Jaipaul is an Insurance Consultant and Mediator.  He can be contacted at crjaipaul@rogers.com

 

NOT LEGAL ADVICE. Information made available in this Blog in any form is for information and educational purposes only. It is not, and should not be taken as legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read in this Blog.

THE BASICS OF MOTOR CLAIMS INVESTIGATION

May 2017

Background
Around 10:00 pm on the night of September 1st, 2011, Mr. Donald Findlay who lives at Fountain, was on his way home along the main Vigie Highway when his Chrysler motor car was involved in a collision with a Toyota Sprinter motor vehicle driven by Mr. Wendell Walters’. Mr. Findlay claimed Mr. Walters, who lives in Sandy Bay, a remote village on the Eastern side of the island, was  entering the highway from a minor road, heading in the direction of the Arnos Vale roundabout, caused the accident by emerging from a minor road onto the Vigie Highway and collided with his vehicle when it was not safe to do so.  Mr. Findlay  seeks compensation for injuries he allegedly sustained in the accident and for damage to his vehicle.

The Basics

Once a new claim has been assigned, the claims officer should check the following Ps:

  • Policy - did the loss happen within the policy period?

  • Peril - was an insured peril the cause of the loss?

  • Person - is the person seeking indemnity insured under the policy?

If the answer to any of these questions is NO, then, further investigation is required.  This does not mean that the claim should be repudiated - far from it.  Every loss should be fully investigated and documented but, be careful not to create an estoppel.

Theory of the case

Findlay says he saw the lights of the vehicle approaching the junction to the highway when he was about 40 feet away. He said that he slowed down and proceeded to drive towards Fountain. He said that when he arrived at the junction Mr. Walters’ car 'pulled from the minor road into the major road’. He stated that he veered to the extreme left in an attempt to avoid the collision but was unsuccessful. He indicated that Mr. Walters’ vehicle from just past the front door to his rear door and the rear wheel struck the right fender of his car. He claimed that the impact caused his vehicle to swerve off the road and overturn. He explained that the point of impact was on the left side of the highway in his lane and that Mr. Walters’ car had not yet crossed over fully to the other side. He denied that he was speeding or driving recklessly. He indicated that he did not apply his brakes but swerved. He said that Mr. Walters came to his car, called him an angel and thanked him for saving his life by pulling away so far and verbally accepted responsibility for the accident.


Walters says that when he approached the intersection of the road to Belair and Vigie Highway adjacent to Rampi’s Shop, he looked towards the left along the highway to Belmont and towards the right, in the direction of the roundabout and saw no oncoming traffic from either direction. He then proceeded across the highway into the left lane to continue his journey towards the roundabout. He said that Mr. Findlay was driving too fast and failing to control his motor vehicle.  He denied driving negligently and claimed that Mr. Findlay caused the accident by his negligent and reckless driving. He alleged that he had already entered the main highway and crossed into the right lane when Mr. Findlay drove at an excessive speed and collided with his vehicle. He contended that the accident was caused wholly by Mr. Findlay’s recklessness and negligence in that he approached the intersection without slowing down, drove onto the wrong lane, failed to keep a lookout for other road users and failed to manoeuvre his vehicle to avoid the accident or to give adequate warning to other road users.

Credibility

Often, in a court proceeding, resolution of the factual disputes as to the cause of the accident turns largely on the credibility of the witnesses. In this case, both accounts are so divergent that they canot both be true.

The claims officer may consider the following when assessing the credibility of Mr. Walters:

He was evasive and was not forthcoming about the layout of the roadway where the collision took place. His version of what took place is quite unlikely for a number of reasons.  Vigie Highway in the vicinity of the Belair intersection, is a long stretch of road with an unobstructed line of sight of up to 100 yards in opposite directions away from the intersection. For this reason, Mr. Walters would have likely had the same line of sight as did the witnesses who both report that they saw Mr. Findlay’s vehicle approaching.

Mr. Walters was less than truthful in his response. Unless Mr. Walters was distracted or had interruptions in his vision or visibility, he should have been able to see Mr. Walters’ car approaching.

Case Law

In the Saint Vincent and The Grenadines High Court case of O’Neil George v Germaine Baynes [2005], Mr. Justice Bruce-Lyle noted that the provisions of the Motor Vehicle and Road Traffic Act has the following provision:

Every driver of a motor vehicle shall comply with the following rules-

He shall not cross a road or turn in a road or proceed from one road into another road, or drive from a place which is not a road, or form a road into a place which is not a road, unless he can do so without obstructing any other traffic on the road and for this purpose he shall be held to be obstructing other traffic if he causes risk of accident thereto.’

Get out of the office

Whenever possible, the claims officer or adjuster must attend the scene of the accident to "see for themselves" what it looks like; take measurements and pictures and document their files in preparation for potential litigation.   As the years go by, things change and are no longer there to tell the story of what happened on the day of the accident.  For example, this accident happened in 2011 but did not get to court until 2016 and the case decided in  2017.

Judgment

Madam Justice Esco Henry found that Mr. Walters' negligence caused the accident.  She said:

The law imposes a duty on road users to exercise care while travelling on the roads. It imposes a duty on a driver to exercise special care at crossroads. A driver emerging onto a major road from a minor road is obliged to give way to traffic on the major road. A driver on the major road has a parallel duty to exercise care to avoid collision with a vehicle emerging from a side road. No evidence was provided about the speed at which either vehicle was travelling. I cannot speculate. The area of damage to Mr. Walters’ car is consistent with Mr. Findlay’s and his witnesses’ account of how the accident happened. Mr. Walters’ decision to enter the highway at that time, was negligent and fell short of what a reasonable driver would have done in similar circumstances. [References omitted]

It follows that he is liable to Mr. Findlay for the all loss which flowed naturally and reasonably from the accident.

Source: Saint Vincent and The Grenadines High Court case of Donald Findlay v. Wendell Walters [2017]

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NOT LEGAL ADVICE. Information made available in the Educator in any form is for information and educational purposes only. It is not, and should not be taken as legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read in the Educator.

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