Bennett v Diaz

• Jurisdiction: Cayman Islands
• Judge: (McMillan, J.)
• Judgment Date: 28 January 2020
• Court: Grand Court (Cayman Islands)
• Date: 28 January 2020

BENNETT

and

DIAZ

(McMillan, J.)

Grand Court, Civil Division (Cayman Islands)

Statutes — repeal — implied repeal — time limit provision in Motor Vehicle Insurance (Third Party Risks) Law 1990, s.17 impliedly repealed by Limitation Law 1991, s.13

Held, ruling as follows:

(1) The plaintiff had satisfied the burden of establishing that there had been an implied repeal. The first and arguably the most important aspect of this matter concerned the historical background. Once it was accepted that the purpose of the Limitation Law was to set out new and consistent periods of limitation in respect of legal proceedings of every description coming before the courts in the Cayman Islands, it followed that whatever was inconsistent with that purpose was likely to be repugnant to it. That proposition was lawful, logical and correct. The second issue was of inconsistency and repugnance. Were the provisions of the Limitation Law so inconsistent or repugnant to the provisions of the Insurance Law that the two could not stand together? The plaintiff had shown that there was repugnance between the two statutes and that the Limitation Law was not a partially reforming statute but a comprehensive reforming statute. In addition, the plaintiff was correct in stating in substance that s.44(1) addressed situations where an action or arbitration period of limitation had been prescribed by order under “any other law,” as distinct from situations, such as the present case, where such other period had explicitly or implicitly been repealed. The defendant had misconceived both the relevant statute law and the relevant common law. As a matter of statutory construction and interpretation, the plaintiff’s case was proven. Thirdly, out of an abundance of caution and taking into account the public importance of the questions raised, it was also necessary to have recourse to the relevant passages from Hansard. The court accepted unequivocally that the Limitation Law was intended to include and to cover personal injury arising out of road traffic accidents, including motor car accidents. The issue of implied repeal was therefore determined and resolved in favour of the plaintiff (paras. 170–182).

(2) Implied repeal arose to give effect to the legislative will and to ensure that it was respected and followed as distinct from being undermined. The burden of establishing an implied repeal was on the party asserting it, in the present case, the plaintiff. Where the provisions of a statute were inconsistent with the provisions of an earlier statute, the earlier provisions might be impliedly repealed by the later. There was a general presumption against implied repeal, the strength of which varied according to the context. The presumption against implied repeal was particularly strong where general provision in a statute covered a situation for which specific provision was made in an earlier statute. In addition to a general presumption against implied repeal, there was a further principle that special statutes were not repealed by general statutes unless there was some express reference to the previous legislation or a necessary inconsistency in the two statutes standing together (paras. 46–49; para. 163).

(3) The general presumption against implied repeal, the strength of which varied according to the context, had been overcome and displaced by the strength of the plaintiff’s case both historically and analytically. The presumption that a general provision in a Law did not cover a situation for which specific provision was made in an earlier Law was likewise overcome and displaced for the same reasons put forward by the plaintiff. The extracts from Hansard provided an aid to statutory construction and the preconditions for their admissibility had properly been met (paras. 167–169).

Cases cited:

(1)Cole v. N.E.M. (West Indies) Ins. Ltd., 2009 CILR 367, not followed.

(2)Cruz-Martinez v. Cupidon, 1999 CILR 177, considered.

(3)Day v. Merren, Cause No. 40/2019, Grand Ct., November 26th, 2019, unreported, referred to.

(4)Ming v. R., 2009 CILR N [28], considered.

(5)Pattinson v. Finningley Internal Drainage Bd., [1970] 2 Q.B. 33; [1970] 1 All E.R. 790, considered.

(6)Pepper v. Hart, [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42; [1992] STC 898; [1993] RVR 127, considered.

(7)Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin); [2003] Q.B. 151; [2002] 3 W.L.R. 247, considered.

(8)West Ham Church Wardens v. Forth Mutual Bldg. Socy., [1892] 1 Q.B. 654, considered.

(9)Woods v. Thompson, Cause No. 229/2015, Grand Ct., July 12th, 2016, unreported, not followed.

Legislation construed:

Limitation Law (1996 Revision), s.2(1): The relevant terms of this sub-section are set out at para. 34.

s.13: The relevant terms of this section are set out at para. 31.

s.39: The relevant terms of this section are set out at para. 37.

s.44: The relevant terms of this section are set out at para. 39.

Motor Vehicle Insurance (Third Party Risks) Law (2007 Revision), s.2(1): The relevant terms of this sub-section are set out at para. 42.

s.3(1): The relevant terms of this sub-section are set out at para. 43.

s.17: The relevant terms of this section are set out at para. 44.

The plaintiff sought damages for personal injuries.

In 2012, the plaintiff was injured in a road traffic accident. She alleged serious injuries. The writ of summons in her action was issued three years and nine months from the date of the accident, which was outside the limitation period in the Motor Vehicle Insurance (Third Party Risks) Law 1990. The plaintiff claimed that her impecuniosity and failures by her previous attorneys resulted in the three-year limitation period expiring. The defendant admitted liability but raised the expiry of the limitation period.

The plaintiff took the view that the relevant provisions of the Motor Vehicle Insurance (Third Party Risks) Law had been repealed by the Limitation Law 1991, giving the court a discretion to consider the justice of the case. She sought a preliminary decision as to whether the Limitation Law 1991 impliedly repealed s.17 of the Motor Vehicle Insurance (Third Party Risks) Law.

Under s.13(4) of the Limitation Law, the ordinary time limit for bringing an action for personal injury was three years. Section 39 of the Law provided that where it was legally permissible and appropriate to do so, the court could exercise a broad equitable discretion to allow an action to proceed having regard to all the circumstances of the case. Section 44(1) of the Law provided:

“44. (1) This Law does not apply to any action or arbitration for which a period of limitation is prescribed by or under any other Law, or to any action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be prescribed by or under any such other Law.”

Section 17 of the Motor Vehicle Insurance (Third Party Risks) Law provided:

“17. Notwithstanding anything contained in any other law or in any rule of law or equity, no action shall be brought in any court by or on behalf of any person after the end of the period of three years from the date on which a cause of action accrued for any injury or damageagainst or in respect of which a vehicle is required to be insured under this Law.”

N. Timms, Q.C. and R. Whittaker-Myles for the plaintiff;

M. Wingrave for the defendant.

1 McMILLAN, J.: This matter arises for consideration pursuant to an originating summons dated November 27th, 2015 and, more particularly for present purposes, pursuant to a summons application dated July 25th, 2017.

2 By originating summons, Carol Angella Bennett (“the plaintiff”) had sought a direction under s.39 of the Limitation Law (1996 Revision) that the provisions of that Law shall not apply to the plaintiff’s action against Henry Michael Diaz (“the defendant”).

3 The plaintiff’s summons application goes further by explicitly seeking as a preliminary finding of the court that “there be a determination of the issue of implied repeal,” meaning deciding whether the plaintiff’s action could be statute-barred pursuant to s.17 of the Motor Vehicle Insurance (Third Party Risks) Law (2007 Revision), or alternatively pursuant to that section and/or pursuant to s.13 of the Limitation Law (1996 Revision). The alternative case was not advanced at the hearing for the reason set out at para. 4 below.

4 It has been agreed by the parties that the sole question for hearing and resolution at this stage is whether or not the Limitation Law 1991 impliedly repealed s.17 of the Motor Vehicle Insurance (Third Party Risks) Law originally enacted in 1990. This is explained more fully below.

5 Although this central issue is approached by counsel in a number of different ways it remains the fundamental question for the court to decide.

Background

6 In view of the narrowness of the issue for determination, the court invited the parties to provide for the assistance of the court a summary of background and agreed facts. The summary will now follow.

7 The plaintiff was injured in a traffic accident which occurred on February 24th, 2012. She was the driver of a Toyota Corolla motor vehicle, registration number Q3213, along Dorcy Drive when she was rear-ended by a Chevy Silverado truck, registration number 137770, owned and driven by the defendant. The claim in these proceedings arises from this accident.

8 The police incident report issued by the crime desk of the Royal Cayman Islands Police Service on February 19th, 2013 indicates that the defendant accepted fault for the accident.

9 At the time of the accident, the plaintiff, a Jamaican national, was a work permit holder residing in the Cayman Islands. Upon the expiry of her term limit in November 2013, the plaintiff returned to Jamaica. She alleges serious injuries.

10 An indorsed writ was issued on November 27th, 2015 in these proceedings following a letter of intent to commence proceedings dated July 15th, 2015, i...