The Insurance Company of The West Kndies (Cayman) Ltd Plaintiff v Victoria Jane Banks First Defendant Susan C. Yee (Widow and Executrix of Richard Douglas Martin, Deceased) Second Defendant
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Robin McMillan |
| Judgment Date | 05 March 2015 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No: G 464/2012 |
| Date | 05 March 2015 |
Mr. Justice Robin McMillan (Actg.)
Mr. Thomas Lowe Q.C. instructed by Mr. William Jones of Ogier for the Plaintiff
Mr. Paul Murphy of Stuarts Walker Hersant Humphries for the First Defendant
Mr. Matthew Dors of Ritch & Conolly for the Second Defendant
In these proceedings The Insurance Company of the West Indies (Cayman) Limited 1 (‘the Plaintiff”) seeks a declaration that it was entitled to avoid a Policy of Insurance entered into with Victoria Jane Banks (‘the First Defendant’) on the ground that a renewal of the Policy was obtained through the non-disclosure of a material fact, viz., that the First Defendant was facing pending prosecutions, and a declaration that the Plaintiff has duly avoided the Policy.
The issue is set out in these terms in paragraphs 4 and 5 of a Note Pursuant to GCR O. 34, r 10(1)(e):
‘ 4. Section 15(3) of the Law states that:
No sum shall be payable by an insurer under subsection (1) [which requires insurers to satisfy judgments against persons insured in respect of third party risks], if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given he has obtained a declaration that, apart from any provision contained in the policy, he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular, or if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it…’.
5. The trial will accordingly be concerned with whether the First Defendant's failure to disclose the fact that she was facing the Motoring Prosecutions at the time of renewal of the Policy constituted a material non-disclosure within the meaning of section 15(3) of the Law, which entitled the Plaintiff to avoid the Policy.’
A helpful narration of the background is provided in the Plaintiffs Skeleton Argument 4 dated 26 February 2015, which irrelevant part states as follows:
‘ 1. These are the submissions of the Plaintiff (‘ICWI’) in proceedings concerning the avoidance of a motor insurance policy taken out by the First Defendant (‘Miss Banks’), the benefit of which would otherwise be available to Second Defendant (‘Miss Yee’).
On 22 May 2009 Miss Banks completed a Motor Vehicle Proposal Form (see Core Bundle Tab 5, Exhibit ‘TIL-1, pp13–14), in which she confirmed, inter alia, that no person who would drive the subject motor vehicle (the ‘Vehicle’): (1) had been fined, (2) had their licence endorsed/revoked, or (3) had been prosecuted, for a motoring offence in the past 5 years.
3. Later on 22 May 2009 ICWI issued the Policy to Miss Banks for twelve months from 22 May 2009 to 21 May 2010 (see Core Bundle Tab 5, Exhibit ‘HL-1’, pp16, 19).
4. Unbeknown to ICWI a number of prosecutions for motoring offences (the ‘Motoring Prosecutions’) were initiated against Miss Banks ‘in about mid 2010’ (see Core Bundle Tab 14 §22), including charges in. indictment 05818 of 2010 for:
(1) careless driving;
(2) driving under the influence of alcohol; and
(3) using a vehicle with an expired licence.
5. It is accepted that at the time Miss Banks completed the Proposal Form she did so honestly. Indeed had the Motoring Prosecutions been live at that time the Proposal Form, would have contained an active misrepresentation.
6. ICWI agreed to reinstate the then lapsed Policy on 21 June 2010 from that day to 20 June 2011 (Core Bundle Tab 5, Exhibit ‘HL-1’, pp26–29):
(1) There was therefore a period of some 4 weeks between 21 May 2010 and 21 June 2012 during which the Policy had lapsed and Miss Banks was uninsured during that time.
(2) In addition during that year the Policy lapsed on a number of occasions for non-payment of premiums and had to be reinstated (see Core Bundle Tab 5, Exhibit ‘HL-1’, pp32, 34 and witness statement of Miss Banks Core Bundle Tab 14 §14).
7. On 15 June 2011 ICWI agreed that the Policy woidd be extended for the period 21 June 2013 to 20 June 2012 (see Core Bundle Tab 5, Exhibit ‘HL-1’, p39).
8. It is common ground that Miss Banks was not asked to complete a further proposal form on reinstatement or renewal of the Policy.
9. It is also common ground that Miss Banks never disclosed the Motoring Prosecutions when the Policy was renewed both in June 2010 or June 2011.
10. The Vehicle was involved in a collision on 30 November 2011. The collision tragically resulted in, inter alia, the death of Mr. Martin.
11. The Summary Court of the Cayman Islands circulated its Traffic Court hearing list on 14 May 2012 which provided, inter alia, that Miss Banks was facing the Motoring Prosecutions (see Core Bundle Tab 5, Exhibit ‘HL-1, p43)
12. ICWI wrote to Miss Banks on 30 July 2012 (see Core bundle Tab 5, Exhibit ‘HL-1’, p44) to advise her that it was avoiding the Policy on the basis of the non-disclosure of a material fact, namely the nondisclosure of the fact that the First Defendant was facing the Motoring Prosecutions.
13. On 14 November 2012 Miss Yee, as widow and executrix of the Estate of the late Mr. Martin, issued a Writ and began an action (Cause Number 453 of 2012) against Miss Banks and a Mr. Patrick Ramon Brooks-Dixon (‘Mr. Brooks-Dixon’), claiming damages on the ground that the death of the late Mr. Martin was caused by Mr. Brooks-Dixon's negligent driving of the Vehicle (see Documents Bundle, tab 60).
14. On 22 November 2012 ICWI issued the Writ of Summons and Statement of Claim (see Core Bundle Tab 1) and gave notice to Miss Yee of the Miss Banks' Non-Disclosure (see Core Bundle Tab 2). Miss Banks filed a Defence on 4 January 2013 (Core bundle Tab 3) and Miss Yee was added to these proceedings by consent (Core Bundle Tab 4).
15. On 18 February 2013 Miss Banks pleaded guilty to two of the Motoring Prosecutions, namely driving under the influence of alcohol and using a vehicle with an expired licence. The charge of careless driving was left on the file (see Core bundle Tab 5, Exhibit ‘HL-1’, p45 and Core Bundle Tab 14 §23).’
In addition, in formal terms paragraphs 1–12 of the Statement of Claim dated 22 November 2012 are admitted in the Defence which correctly is dated 4 January 2013. Paragraphs N12 state:
-
‘ 1. The Plaintiff is an insurer within the meaning of sections 2 and 15 of the Vehicle Insurance (Thirty Party Risks) Law (2012 Revision) (the ‘Law’).
-
2. The Defendant is a resident of the Cayman Islands.
-
3. On 22 May 2009, the Plaintiff, in consideration of the payment of a premium of six hundred and forth six Cayman Islands dollars and thirty five cents (CI$646.35)(as a first quarterly instalment of a total premium of CI$2,020.68), issued to the Defendant a policy of motor vehicle insurance bearing policy number “34594221 1” (the ‘Policy’), by which the Plaintiff agreed that for the period of twelve (12) months from 22 May 2009 to 21 I May 2010 it would, inter alia, indemnify the Defendant in the event of an accident caused by or arising out of the use of the Defendant's Chevrolet Trailblazer motor vehicle, registration number 132 916 (the ‘Vehicle’), against all sums including a third party claimant's costs and expenses which the Defendant should become legally liable to pay in respect of:
-
(a) death of or bodily injury to any person, subject to a maximum sum payable of CI$1,000,000.00; and
-
(b) damage to property, subject to a maximum sum payable of CI$250,000.00 arising out of one event.
-
-
4. The foregoing liability is such liability as is required to be covered by a policy of insurance under section 4(1) of the Law.
-
5. The Plaintiff made the contract of insurance on the basis of and in reliance upon the truth of a proposal form and declaration competed by the Defendant dated 22 May 2009 (the ‘Proposal Form’). In the Proposal Form the following question, amongst others, was put to the Defendant under the section headed ‘THE DRIVERS (INCLUDING THE PROPOSER)’:-
‘ (e) To the best of your knowledge in the past five (5) years has any person who will drive the motor vehicle: (1) been fined, (2) had their licence endorsed / revoked, (3) been prosecuted for a motoring offence?
After the said question, the Proposal Form contained boxes marked “Y” and “N” for the proposer to tick its answer “yes” or “noand also further boxes for details to be proved in the event that the proposer answered “yes” to the question.
-
6. The Defendant answered “no” to the question set out in paragraph 5 above by ticking the box marked “N” next to that question.
-
7. As stated in paragraph 3 above, the Plaintiff duly issued the Policy, for the period 22 May 2009 to 21 May 2010. In May 2010, the Defendant failed to ask the Plaintiff to renew the Policy, and the Policy therefore expired on 21 May 2010.
-
8. On or about 21 June 2010, the Defendant sought to reinstate the then lapsed Policy, and the Plaintiff agreed to reinstate it for the period 21 June 2010 to 20 June 2011. The Defendant duly paid to the Plaintiff a renewal premium of CI$543.99 (as a first quarterly instalment of a total premium, of CIS1,683.96) and the Plaintiff duly renewed the Policy for an additional twelve (12) months and delivered to the Defendant a Certificate of Insurance for the period 21 June 2010 to 20 September 2010 (on the basis that further certificates would be issued as and when the remaining quarterly instalments were paid). This renewal of the Policy was confirmed by way of an endorsement (Endorsement No. 1153503) to the Policy dated 21 June 2010.
-
9. On or about 15 June 2011, the...
To continue reading
Request your trial