CGI Consumers' Guarantee Insurance Company Ltd v Valentine Stevenson
| Jurisdiction | Barbados |
| Judge | Madam Justice Jacqueline Cornelius |
| Judgment Date | 27 October 2022 |
| Neutral Citation | BB 2022 HC 38 |
| Docket Number | NO. CV 1176 OF 2011 |
| Court | High Court (Barbados) |
| Year | 2022 |
The Honourable Madam Justice Jacqueline Cornelius, Judge of the High Court.
NO. CV 1176 OF 2011
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Leslie F. Haynes, Q.C., appearing on behalf of the Claimant.
Ms. Verla De Peiza appearing on behalf of the First Defendant.
Sir Richard L. Cheltenham, K.A., Q.C., Ph.D. in association with Ms. Shelly Ann W. Seecharan appearing on behalf of the Second Defendant.
On the 29 th day of November 2007, Sherleen Ordeen Thomas was walking along the Speightstown Bypass Road in St. Peter. She was struck by a motor vehicle driven by Mr. Stevenson, the First Defendant. At the time his driver's licence had expired, since the 30 th day of June 2007. She died. Following the Independence Day Holiday, the First Defendant went to the offices of the Barbados Licensing Department and on paying the required fee, his licence was backdated to reflect a continuous period of coverage. Naturally, the estate of Ms. Thomas, represented by the Second Defendant, sued Mr. Stevenson for damages occasioned by the death of Ms. Thomas, which was allegedly due to his negligent driving. The insurance company, the Claimant, now seeks to avoid the contract of insurance and seeks the following declarations:
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i. Against the First Defendant, a Declaration that the Claimant is not liable to indemnify the First Defendant, pursuant to a policy of motor insurance numbered PC22938 issued by the Claimant to the First Defendant, in respect of any legal liability of the First Defendant for the death of Sherleen Ordeen Thomas, Deceased, caused by an accident on the 29 th day of November 2007 involving motor vehicle registration number L2393, owned and driven by the First Defendant, and the Deceased; and
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ii. Against the Second Defendant, a Declaration that the Claimant is not liable to satisfy any judgment obtained in favour of the Second Defendant against the First Defendant in High Court Action (or any other action) pursuant to section 43(1) of the Road Traffic Act, Cap. 295 of the Laws of Barbados (“the RTA”), in respect of the aforesaid accident.
The main issue for this court is whether the Claimant is liable to indemnify the First Defendant in accordance with section 38A of the RTA against the claim of the Second Defendant in light of the “exemption clause” outlined in Insurance Policy no. PC22938.
The Court declines to make the declarations prayed for, not being satisfied that the Claimant has successfully contracted out of its liabilities under the RTA.
A quick but more detailed rehearsal of the agreed facts is necessary. CGI Consumer's Guarantee Insurance Co. Ltd. (“the Claimant”) is a company carrying on insurance business including motor vehicle insurance within the meaning of the Insurance Act, Cap. 310 of the Laws of Barbados.
Valentine Stevenson (“the First Defendant”) is the owner of a 1997 Nissan Sunny motor vehicle bearing registration number L-2393 and is the First Defendant in this matter.
Andre Thomas (“the Second Defendant”) is the Administrator of the Estate of Sherleen Ordeen Thomas, Deceased, having obtained Letters of Administration to the Deceased's Estate on the 2 nd day of July 2008 and is the Second Defendant in this matter.
In June 2006, the Claimant issued a policy of motor insurance numbered “PC22938” (“the Policy”) to the First Defendant covering a period of twelve (12) months ending on the 11 th day of June 2007. This ‘third party’ policy served to indemnify the First Defendant against all sums incurred should the First Defendant become legally liable for death, bodily injury, or damage to property caused by or in connection with the ownership or use of the said motor vehicle pursuant to section 38 of the RTA.
On the 12 th day of June 2007, the policy was renewed for a further twelve (12) months until the 11 th day of June 2008 and the First Defendant was issued with a Certificate of Insurance by virtue of section 38(7) of the RTA.
On the 30 th day of June 2007, the First Defendant's driver's licence expired and up until and including the 29 th day of November 2007, the First Defendant had not renewed the licence in accordance with section 76(1) of the RTA.
On or about the 29 th day of November 2007, at approximately 10:30 pm, the First Defendant was driving his motor vehicle L-2393 and was travelling along the Speightstown By-Pass road in the parish of St. Peter. At that time, Pedestrian Sherleen Ordeen Thomas, Deceased, was walking with a colleague along the said By-Pass road. Subsequently, the First Defendant's vehicle struck the Deceased who sustained injuries and later died.
On the next business day, the First Defendant renewed his driver's licence with the Barbados Licensing Authority ‘backdating’ the renewal to cover the date after expiry - 1 st July 2007 pursuant to section 76(3)(b) of the RTA.
Moreover, on the 26 th day of November 2010, the Second Defendant instituted High Court proceedings, Claim No. CV 1613 of 2010 against the First Defendant claiming damages, interest and costs as a result of the death of the Deceased on the 29 th day of November 2007, which was allegedly caused by the negligent driving of the First Defendant.
However, the Claimant has refused to accept liability under the terms of the said policy and maintains that it is entitled to avoid liability for any judgment obtained by the Second Defendant on the ground that the First Defendant was not the holder of a valid driver's licence at the date of the accident.
The statement of Agreed Facts and Issues which was filed by the Parties set out the issues as follows:
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i. Whether on a proper construction of the Policy, failure of the First Defendant to renew his driver's licence pursuant to section 76(1) of the RTA resulted in the First Defendant not holding or obtaining a valid driver's licence on the date of the accident? If so,
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ii. Whether on a proper construction of the Policy, the exclusion clause referred to in paragraph 8 of the Claimant's Agreed Statement of Facts and Issues applies as to exempt the Claimant from liability to indemnify the First Defendant in respect of any liability for the death of the Deceased?
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iii. Whether the Claimant was obliged in accordance with section 43(2)(c) of the RTA to cancel the Policy prior to the date of the accident in order to avail itself of the protection of the said exclusion clause? And if so,
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iv. Whether the Claimant not having cancelled the Policy is obliged pursuant to section 43(1) of the RTA to satisfy any judgment obtained by the Estate of the Deceased?
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v. Whether the exclusion clause restricted the cover of the First Defendant under the Policy, with respect to liabilities required to be covered by a motor vehicular policy of insurance, thereby rendering the said exclusion clause void pursuant to section 48(1) of the RTA?
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vi. Whether public policy considerations apply so as to render the exemption clause null, void and of no effect?
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vii. Whether section 76(3)(a) or (b) of the RTA provide that a driver's licence, which has expired before the date of the accident and was so expired on the date of the accident, could be treated as valid on the date of the accident by paying the renewal fee therefor?
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viii. Whether in the circumstances, the Claimant is liable to indemnify the First Defendant in respect of any legal liability of the First Defendant for the death of Sherleen Ordeen Thomas caused by the accident? and/or
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ix. Whether in the circumstances, the Claimant is liable to satisfy any judgment in favour of the Second Defendant against the First Defendant in any action in respect of the accident, pursuant to section 43(1) of the RTA?
The crux of the argument for the Claimant, contained in the written and oral submissions, is that on a strict construction of the Policy, the Claimant's indemnification is excluded in accordance with RTA 76(1) where a driver does not hold a valid driver's licence. Section 76(1) of the RTA sets out the criteria for which a driver's licence is to be deemed as valid or invalid and in relation to validity, a driver's licence is valid for one (1) year from the date of issue, and is renewable for a further period of one (1) year (or at the request of the holder, for a period of three (3) years) in the month in which the holder was born on payment of such fee as the Minister of Finance, by order, prescribes.
They argue that since the First Defendant's driver's licence expired on the 30 th day June of 2007 he was not the holder of a valid driver's licence in accordance with section 76(1) of the RTA and therefore the exclusion clause contained in the Policy applies to exempt liability. The relevant section ‘Exclusions Which Apply to Section II’ reads as follows:
‘2. The driver does not hold or is disqualified from holding or obtaining a valid driver's licence or if the driver is entitled to indemnity under another policy.’
In relation to whether it was the duty of the Claimant to cancel the Policy in accordance with section 43(2)(c) of the RTA, it is the argument for the Claimant that the Claimant was not duty bound to cancel the Policy prior to the date of the accident in order to avail itself of the protection of the exclusion clause mentioned in paragraph 15 above. This is because the relevant issue in the case, at all material times, is whether the Policy, due to the applicability of the said exclusion clause, was on risk (or in force) at the date of the accident. Moreover, Counsel argues that the Claimant's failure to cancel the Policy prior to the date of the accident does not oblige it...
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