Michelle Ingram v Julian Turner
| Jurisdiction | Cayman Islands |
| Judge | Mr Justice Walters |
| Judgment Date | 08 March 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: 59 of 2017 |
Hon Mr Justice Walters (Actg.)
CAUSE NO: 59 of 2017
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Claim for personal injury, substantial delay, grounds upon which case may be struck out for want of prosecution pursuant to GCR O.18, r. 19, whether notice given to insurers pursuant to section 15 (2) (b) Vehicle Insurance (Third Party Risks) Act (2012 Revision), whether failure to give notice is grounds for dismissal of claim GCR O.18, r. 19 on the grounds that it is an abuse of process.
Mr Delroy Murray of Murray & Westerborg for the Plaintiff
Ms Alice Carver and Mr Colm Flanagan of Nelsons for the Defendant.
These proceedings relate to a claim for damages brought by the Plaintiff in relation to damage to her vehicle and injury alleged to have been suffered by her as the result of a road traffic accident involving a vehicle driven by the Defendant. The accident took place on 31 March 2014. Despite negotiating directly with the Defendant's insurance company, the Plaintiff's claim for personal injury was not settled and on 13 March 2017 she retained attorneys, McGrath Tonner. Proceedings were issued on behalf of the Plaintiff on 29 March 2017, a few days before the expiry of the three year limitation period.
The accident appears to have involved the Defendant's vehicle colliding with the rear of the Plaintiff's vehicle. The Plaintiffs pleaded case (clarified in her reply to defence served over 3 years after the date of the accident) is that she was dazzled by the headlights of an oncoming vehicle and, as a result, “gently” applied her brakes as her view of the road was temporarily impaired. She says that the Plaintiff did not maintain a sufficient braking distance. The Defendant's case is that the Plaintiff braked without warning and a collision could not be avoided. Liability is disputed. There does not appear to be a police report and there were no witnesses whose contact details were taken.
The Plaintiff claims that she has suffered injury to her back and that the injury persists. The precise nature of the injury/ies has not been pleaded or disclosed and the claims for general and special damages have not been particularized. As part of his defence, the Defendant asserts that the Plaintiff had a pre-existing susceptibility or weakness that has caused or exacerbated her current condition.
There has been substantial delay to the proceedings and, despite the Plaintiff changing counsel, the matter has not progressed beyond the close of pleadings, the reply to defence being dated 18 September 2017.
The Defendant's current summons dated 28 October 2021 seeks an order striking out the Plaintiff's claim as an abuse of process and/or for want of prosecution by reason of inordinate/inexcusable delay.
In addition to the question of delay, the Defendant has raised the question of section 15 (2) (b) of the Vehicle Insurance (Third Party Risks) Act (2012 Revision) (the “Act”). I will come back to the detail of that section below but, in summary, it says that it is a condition precedent to liability of an insurer for an accident involving one its insureds that before or within 30 days after the commencement of proceedings relating to that accident, the insurer must be given notice of the bringing of proceedings.
The Defendant's insurer has taken the position that it was not given notice in accordance with the Act. It is asserted that this was the fault of the Plaintiff and her original attorneys. Failure to give notice means that the insurer has the option of declining to accept liability for the accident. It has not yet done so and the current attorneys for the Defendant are instructed by his insurer, but without prejudice to its right to decline liability if the proceedings continue.
The Defendant argues that it is an abuse of process for the Plaintiff to be allowed to continue with her claim in circumstances where as a result of her original attorneys' omission or failure, he may be left personally liable for any damages awarded in her favour as well as for his own legal costs and, potentially, those of the Plaintiff. When Ms Carver for the Defendant was making submissions in relation to the implications of the Act, it became clear from her analysis of the relevant English authorities dealing with the equivalent English statutory provision (Section 152 (1) (A) Road Traffic Act 1988) that those courts have looked at the factual background when considering if adequate notice to insurers has been given. As a result, during the hearing I asked counsel for the Defendant to obtain an affidavit from the Defendant's insurer setting out the contact that it had with the Plaintiff and her attorneys prior to the commencement of proceedings. The hearing was adjourned to allow that to happen and an affidavit dated 3 February 2022 was sworn by Ms Zinnana Ebanks the claims manager of the Defendant's insurer, British Caymanian Insurance Company Limited (“CG BritCay”). I have incorporated her evidence into the more detailed factual summary set out below.
Further to the initial summary above, on 2 April 2014, three days after the accident, the Plaintiff met with CG BritCay and advised it that she had received minor injuries to her lower back and had pains in the head area. She said that her doctor had advised that she had sore muscles from the accident and would have to return in 3 days for him to re-examine her.
On 16 April 2014, the Plaintiff called CG BritCay and confirmed that she was back at work but still in pain. Ms Ebanks of CG BritCay confirms in her affidavit that CG BritCay explained to the Plaintiff the relevant “statute” (I assume the Limitation Act) and injury claim procedure.
Contact between the Plaintiff and CG BritCay continued during 2015, 2016 and into 2017. It appears from Ms Ebanks' affidavit that the Plaintiff continued to keep the insurer updated in relation to her condition and treatment. It also appears that the insurer told her repeatedly that she needed to obtain and provide it with her medical records in order to resolve her claim. CG BritCay also appears to have reminded the Plaintiff repeatedly of the relevant limitation period.
The note from CG BritCay's records for 14 March 2017 set out by Ms Ebanks in her affidavit states that:
“[The Plaintiff] came into office last week w/med records, then called in to the office to say she will be seeking add'l [treatment] as still in pain. Advised of statute coming up and would need to file writ to push claim past statute. Have now received notice of representation from McGrath Tonner.”
The same day, it appears that Ms Ebanks spoke with Mr Tonner, the Plaintiffs counsel who was enquiring about progress with settlement. Ms Ebanks confirms that she told Mr Tonner that there had been no discussion about settlement of the Plaintiff's personal injury claim (it appears that the Plaintiffs claim in relation to damage to her vehicle was settled) as the Plaintiff said that she would be seeking additional treatment. Mr Tonner advised her that he would follow up with her later in the month in relation to settlement.
Ms Ebanks exhibited to her affidavit a number of emails from Mr Tonner dated 13 March and 28 March 2017. The first confirms that McGrath Tonner had been retained on behalf of the Plaintiff and asking for the call that took place on 14 March 2017. He requested a prompt response given the date of the accident but made no mention of an intention to bring proceedings. The second email requested the make, model and registration of the Defendant's vehicle. That information was provided to Mr Tonner and he acknowledged receipt.
Ms Ebanks confirms the position of CG BritCay which is that it was not given any “formal written notice” of the bringing proceedings and nothing was sent to it by registered post to that effect.
Ms Ebanks confirms that, in accordance with her standard practice, on 27 March 2017 she advised the Defendant that if he was served with a writ he should provide a copy to CG BritCay as soon as possible.
As mentioned above, the writ was issued on 29 March 2017. The writ was addressed to the Defendant and it was endorsed with the following:
“And as a Noticed Party to:
British Caymanian Insurance Company Limited
BritCay House, 236 Eastern Avenue,
George Town
P.O.Box 74
Grand Cayman KYI-1102”
For some unexplained reason, the writ was not initially served on either the Defendant or CG BritCay. Instead, Mr Tonner wrote to the Defendant on 6 June 2017 (the “Letter Before Action”) (well outside the period of 30 days as prescribed by the Act) in the following terms:
“We act on behalf of the above named (the “Client”) who was the driver of a Toyota Corolla involved in an accident with a vehicle driven by you on the 31 st March 2014.
The circumstances of the accident are that on the above date our Client was travelling on Smith Road from the direction of George Town in an easterly direction. In the vicinity of Pond Road your vehicle collided with the rear of our Client's vehicle.
Our Client alleges that you caused the accident and that you admitted to having done so (shortly after the accident, at the scene).
On our Client's behalf we are alleging that you were negligent and in breach of your duty of care to other road users, namely our Client, in that you:
a) Failed to keep any or any proper look out;
b) Failed to adequately control your vehicle;
c) Failed to see the vehicle our client was driving, whether in time or at all;
d) Failed to apply your brakes; whether in time of at all,
e) Res ipsa loquitor.
Our Client received damage to her vehicle as a result of the accident. We understand that your insurer, Britcay, has paid for the necessary repairs to our Client's...
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