Cox et Al v Motor & General Insurance Company Ltd

• Jurisdiction: Barbados
• Judge: Williams, C.J.
• Judgment Date: 04 April 1985
• Neutral Citation: BB 1985 HC 21
• Docket Number: Civil Suit No. 326 of 1982
• Court: High Court (Barbados)
• Date: 04 April 1985

Supreme Court. High Court

Williams, C.J. (Acting)

Civil Suit No. 326 of 1982

Cox et al

and

Motor & General Insurance Co. Ltd.

Appearances

Mr. Alair Shepherd in association with Mr. Sanguinette for Defendant.

Miss Valda Blenman and Miss Faith Seale for Plaintiffs.

Insurance - Motor Vehicle — Third Party Insurance. Plaintiffs sustained injuries as a result of a motor accident in which the vehicle was being negligently driven by an employee — Plaintiffs successfully brought actions against the owner of the vehicle and its driver — The plaintiffs subsequently brought an action against the defendant insurance company seeking payment by them of the amount and costs of judgments entered against the employer on the basis that he was insured by the defendant — Whether on the date of the accident a policy of insurance was properly in existence and in force — Court found that the defendant was liable under section 9(1) of the Motor Vehicle Insurance Act since a policy was effected by the employer with the plaintiff company and a certificate of insurance was issued in the employer's favour and antedated — Whether it was lawful for the defendant to antedate the policy and the certificate so as to provide cover in respect of a period which had already expired when the documents were issued — Court found that it was not illegal to antedate the policy and since the insurers had taken not steps under section 9(1) of the Act to invalidate the policy, the policy was valid and the insurers were liable by virtue of section 43(1) of the Act — Judgment given for plaintiffs.

JUDGMENT:

1 On the 2 ^ND of January 1980 the plaintiffs, Dorothy and Sandra Cox, were walking along Tudor Bridge, St. Michael, when they were struck and knocked down by a vehicle, which was being negligently driven by Carlston Marshall, the servant or agent of Frederick Gittens. They sustained personal injuries and suffered loss and expense.

2 On the 8 ^th of September 1980 they brought actions in the High Court, Nos. 630 and 631 of 1980, against Marshall and Gittens to recover damages in respect of the injuries, loss and expense and on the 28 ^th of October 1981 judgment was entered for them against Gittens and Marshall. The plaintiff Dorothy Cox got judgment for $50,000 general damages with interest thereon at 8°/ per annum from the 8 ^th of September 1980 until payment and $16,368.72 special damages with interest thereon at 4% per annum from the 2 ^nd of January 1980 to the 28 ^th of October 1981 and 8% per annum from the 28 ^th of October 1981 until payment. The plaintiff Sandra Cox got judgment for $3,000 general damages and $20 special damages with a similar order for interest.

3 Both plaintiffs were awarded their taxed costs and on the 15 ^th of December 1981 costs were taxed at $13,103 for the plaintiff Dorothy Cox and $2,436 for Sandra Cox. The defendant Motor and General Insurance Company Limited, is a limited liability company incorporated in Trinidad and Tobago and registered under the Insurance Act Chapter 310 of the Laws of Barbados. On the 7 ^th of January 1983 the plaintiffs issued a writ against the defendant seeking, inter alia, payment by the defendant of the amount and costs of the judgments entered against Frederick Gittens, and the costs of the proceedings, on the basis that Frederick Gittens was insured by the defendant under a policy of insurance issued by the defendant. The relevant portions of the plaintiffs' Statement of Claim are as follows: –

• “4. By a policy of insurance dated the 22 ^nd day of October 1979 and issued by the defendant as insurers within the meaning of the Motor Vehicle Insurance Act Cap. 292 of the Laws of Barbados to one Frederick Gittens the defendant in consideration of the payment of the premium then paid by Frederick Gittens to them agreed for the period of 1 year from the 22 ^nd day of October 1979 to insure Frederick Gittens in respect of any liability which might be incurred by Frederick Gittens his servants and/or agents in respect of the death of or bodily injury to any person caused by or arising out of the use on the road of a Motor Vehicle Registration number MD419 of which Frederick Gittens was registered owner, being such a liability of third party risks as is required to be covered by a policy of insurance under section 3 (1) of the said Act.

• 5. The defendant in pursuance of section 4 (7) 7 of the Act delivered to Frederick Gittens in respect of the policy a certificate of insurance in the prescribed from …………

• 8. On or about the 8 ^th day of September 1980 the defendant was served with a notice of proceedings pursuant to the Motor Vehicle Insurance (Third Party Risks) Act in respect of the aforementioned cases, receipt of which was acknowledged by the Manager of the defendant company.”

4 In paragraph 12 it is pleaded that by reason of the provisions of section 9 (1) of the Act the defendant is liable to pay to the plaintiffs the amounts of the judgments, interest and costs but the defendant has failed and refused and still fails and refuses to pay the plaintiffs those sums or any part thereof.

5 In the Defence paragraphs 4 and 5 of the Statement of Claim are denied and paragraphs 8 and 12 are not admitted. In paragraph 9 of the Defence it is pleaded as follows –

“9. If, which is denied a certificate of insurance was issued by the Defendant to one Frederick Gittens then the Defendant will state that the said cover note was issued after the date of the accident and back dated, on information received from Mr. Charles Kellman who was at all material times the broker for the said Frederick Gittens. The Defendant therefore contends that such purported issuance of the said certificate of insurance was illegal and therefore invalid.”

6 At the trial the following documents were admitted by consent, namely,

• (a) notices of proceedings in suits Nos. 630 and 631 of 1980, each bearing the date 8 ^th of September 1980, issued by the attorneys at law for the plaintiff and addressed to the defendant (Exhibits A1 and 2). Stamped on each notice is a stamp which Vernice Cummins, a witness for the defendant who testified that she worked for the defendant as an insurance clerk from 1976 until 1983, identified as the defendant's stamp and a signature which she identified as that of Mr. Yearwood, the defendant's manager at the time. Each notice was headed “Notice of Proceedings pursuant to the Motor Vehicle Insurance (Third Party Risks) Act, 1952” and in each notice the attorneys at law for the plaintiff for and on behalf of the plaintiff gave notice pursuant to section 9 of the Act that the plaintiff had on the 8 ^th of September 1980 begun an action in the High Court against Frederick Gittens and Calston Marshall the owner and driver respectively of the motor van registration number MD 419 insured with the defendant under a policy of insurance issued by the defendant in respect of the said motor van. Each notice stated that the action was for the recovery of damages arising out of the negligence of Calston Marshall as servant and/or agent of Frederick Gittens on the 2 ^nd of January 1980 on Tudor Bridge Road, St. Michael;

• (b) certified copies of the judgments in Suits Nos. 630 and 631 of 1980 (Exhibits B1 and 2);

• (c) a cover note dated the 22 ^nd of October 1979 (Exhibit D) and issued by the defendant's attorney/ manager to the following effect –

  “Mr. Frederick Gittens having proposed for insurance in respect of the motor vehicle described in the schedule below (Toyota Hiace) and having paid the sum of …o… dollars the risk is hereby held covered in the terms of the company's usual form of comprehensive policy...