Earl Gibson and Elma Gibson v Kibwe Mccollin
| Jurisdiction | Barbados |
| Judge | Holder, M. |
| Judgment Date | 06 June 2019 |
| Neutral Citation | BB 2019 HC 13 |
| Date | 06 June 2019 |
| Docket Number | Suit No: Civil Suit No. CV1349 of 2016 |
| Court | High Court (Barbados) |
High Court
Judge(s): Holder, M.
Suit No: Civil Suit No. CV1349 of 2016
Mr. Kenrick Wiltshire, Attorney-at-Law for the Claimants
Ms. Alicia Archer, Attorney-at-Law for the Defendant
Limitation of Actions - Negligence matter — Application for order that s. 20(2) of Limitation of Actions Act did not apply to claimants' cause of action — Delay between accident and defendant being informed of claim — Enlargement of time for filing of cause of action.
On 14th February 2017, the Claimants filed this application with supporting affidavits seeking a direction and/or order under section 52 of the Limitation of Actions Act Chapter 231, that the provision of section 20.(2) of the said Act shall not apply to the Claimants' cause of action on the ground that its application would result in severe prejudice to the Claimants.
Proceedings in the substantive matter commenced by Claim form and Statement of Claim which were filed on 14th October, 2016. In this matter the Claimants are seeking damages for personal injuries and loss which they sustained in a road accident on 19th March, 2013. On that date the First Claimant was driving motor car J505 with the Second Claimant as a front seat passenger, along Charles Rowe Bridge Road, St. George, when the Defendant who was driving XH246 collided with the rear of J505. According to the Claimants the collision was caused solely by the negligence of the Defendant.
In his Defence, the Defendant admitted that the collision occurred on 13th March, 2013 but denied that it was caused solely by his negligence. However he pleaded that the claim had not been filed within the period limited for filing of claims relating to personal injuries.
(a) THE CLAIMANTS' AFFIDAVIT
The Claimants deposed that the police attended the accident and the Defendant admitted that he collided with the rear of their vehicle. They both sustained injuries as a result and the vehicle was damaged.
Shortly after the collision the Claimants' insurers informed them that the Defendant's insurers had admitted liability and had agreed to repair the motor car J505 and to compensate them for their injuries and loss.
The Defendant's insurers compensated the First Claimant for the damage to the car and provided him with a hired car while it was being repaired.
The Claimants were both treated by Dr. Thompson and the First Claimant was also treated by Dr. John Gill. They subsequently retained counsel. They were aware of correspondence between their counsel and the insurers and also that a quantified claim was invited.
They both tried to get the medical reports. They received Dr. Thompson's report dated 30th April, 2016 during the month of May 2016. The First Claimant did not receive Dr. Gill's report.
They stated that the Defendant's insurers were informed of the accident either the same day or the following day and they were led to believe that the claim would have been settled.
(b) MR. WILTSHIRE'S AFFIDAVIT
Mr. Wiltshire deposed that he was retained by the Claimants during the month of April 2013. He contacted the Claimants' insurers who told him that the Defendant's insurers had admitted liability for the accident and had agreed to compensate the Claimants for damage to the vehicle and personal injuries and loss.
He wrote the Claims Manager of the Defendant's insurers on 11th April, 2013 on the matter and sent him a reminder on 3rd May, 2013. He received a response on 13th May, 2013. In spite of the wording he understood it as an acceptance of liability because of his previous dealings with the said company. Also, other insurance companies used similar worded letters which they treat as admissions of liability. He also stated that the language is widely used as such in the legal and insurance professions.
The letter dated 13th May, 2013 stated:
“Thank you for your letter of April 11, 2013 in connection with the above matter.
Our investigations into this matter continues and at the moment we are not in a position to comment on liability.
However in the interest of time and entirely without prejudice to liability, we would be interested to see the quantified claim on behalf of your clients. Do note that this request is not to be considered as an admission of liability.
We look forward to hearing from you.”
He also deposed that the Claimants were under Dr. Thompson's care for about three years. He tried unsuccessfully to obtain the medical reports from Dr. Thompson and Dr. Gill. He called their offices and sent letters. Dr. Thompson's report was received after the limitation period had elapsed, but Dr. Gill's report was not received.
He nevertheless proceeded to quantify the claim without Dr. Gill's report, perhaps to the disadvantage of the First Claimant, and submitted it on 13th June, 2016.
By letter dated 8th July, 2016 he wrote Mr. Adrian Layne, Managing Director of BGI insurers and submitted a letter dated 7th July, 2016 from Alvin Trucking with respect to loss of earnings. On 25th July, 2016 he also wrote Mr. Layne asking for a response.
In the middle of August 2016 he spoke to another employee who informed him that Mr. Layne was absent from work because of an accident. She told him that the Trinidadians would have been in the island within days and he would get an offer shortly.
On 2nd September, 2016, attorney-at-law Ms. Evadne Brewster-Wiltshire telephoned Shawn Ifill, another employee of the Defendant's insurers and he promised to get back to them with a response. When contacted on 6 th September, 2016 Mr. Ifill promised to respond and stated that the claim was under review.
On 7th September, 2016 he received a “Without Prejudice” letter signed by Claims Associate Shawn Ifill in the following terms:
“Thank you for your letter dated July 25, 2016 in connection with the above captioned matter.
Unfortunately, we are unable to assist on this occasion as the Statute of Limitation has expired in this matter and we have closed our files and removed our reserves against these claims.
We trust you appreciate the position.”
Mr. Wiltshire promptly called Mr. Ifill and voiced his disgust. The latter told him to write a letter which he would pass to his supervisors. He hand delivered a letter the said day requesting a response by 25th September, 2016. There was no response so he filed the claim.
The Defendant, responding on behalf of his insurers, admitted that Mr. Wiltshire spoke to the two named employees who promised to discuss the matter with their seniors from the head office in Antigua but they never indicated that there would have been a favourable outcome. In any event the discussions with the employees took place five and six months respectively after the expiration of the limitation period.
He referred to the insurers' letter dated 13th May, 2013 and deposed that liability was never admitted either orally or in writing. He stated that even though the insurers had paid for the repairs to the vehicle and provided a rental car they never promised to settle any further claims.
He also added that the insurers received no further correspondence between the letter dated 13th May 2013 and the expiration of limitation. The next correspondence was the quantified claim which was received three months after the limitation period. Consequently they were entitled to believe that the matter was dropped. He too, not having heard anything further about the matter until he was served with the Claim form three (3) years and seven (7) months after the accident was also entitled to believe that the matter was closed.
Mr. Wiltshire expressed the opinion that it was unreasonable, unconscionable and in bad faith for the Defendant and his insurers to rely on the limitation period as a defence. They were notified of the accident the very day it occurred by the Claimants and by letter dated 11th April, 2013 from the Claimants' Counsel. They repaired the Claimant's car within three weeks and provided a hired car while it was being repaired. They also invited a quantified claim from the Claimants.
He argued that to allow the Defendant and his insurers to rely on limitation would be to allow them to benefit from a windfall to which they were not entitled.
He also said that after the limitation period had expired they accepted the quantified claim and made promises to settle for three clear months. In this regard he blames them for part of the delay in his filing the claim.
He contended that they were fully aware of accident and the Claimants' injuries and that based on the events that occurred it was reasonable for the Claimants and their counsel to infer that liability was accepted.
He stated that the Claimants were under medical care for three years and the quantified claim could not be prepared earlier because the medical reports were not available.
He was of the opinion that the delay could not affect the cogency of the evidence because the parties were still available and the insurers took all “relevant details” and photographs at the scene of the accident.
Mr. Wiltshire also contended that the Defendant was solely responsible for the collision and that the Claimants had a strong case. He said that unlike the Defendant, the Claimants would suffer prejudice if they were not allowed to proceed.
He felt that the insurer's letter dated 13th May, 2013 was a “standard formula” used by insurers generally and the Defendant's insurers in particular even when liability was not in issue. Further, even though the letter did not state that liability was accepted, it did not state that liability was denied. Nevertheless, the court was not prohibited from granting the enlargement of time, however the letter was construed.
He...
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