Holder v Stoute's Car Rental Ltd and Greene
| Jurisdiction | Barbados |
| Judge | Chandler, J. |
| Judgment Date | 03 December 2015 |
| Neutral Citation | BB 2015 HC 42 |
| Docket Number | 1338 of 2007 |
| Court | High Court (Barbados) |
| Date | 03 December 2015 |
High Court
Chandler, J.
1338 of 2007
Mr. John A. Connell CHB, Q.C. in association with Mr. Branford McG. Taitt, attorneys-at-law for the plaintiff.
Mr. Patterson K. H. Cheltenham Q.C. in association with Ms. Rhea A. Cheltenham, attorneys-at-law for the second defendant.
Civil practice and procedure - Application to be removed as party to an action — Joinder — Estoppel — Leave to continue action on question of quantum — Whether defendant ought to have been removed as a party to the action on ground of no contractual or tortious relationship between the plaintiff and first defendant — Whether application for order for Writ filed to stand renewed for one year be granted against second defendant — Application to strike out first defendant as a party premature — Application dismissed — Limitation of Actions, Cap. 231 — s. 20(2), s. 52(1), s.53.
On or about the 22nd day of July 2004, a vehicular accident occurred along Highway 1 in the vicinity of Sunset Crest, Holetown in the parish of Saint James in this Island involving a vehicle, registration number O 272, driven by the plaintiff and motor vehicle registration number H 192 which at the material time was owned by the first defendant and driven by the second defendant Ben Greene, a tourist. As a result of the collision the plaintiff sustained personal injuries loss and damage.
On the same day the plaintiff notified her Insurer, the Insurance Corporation of Barbados Limited (ICBL) situate at Roebuck Street in the parish of Saint Michael in this Island of the accident. The following day the plaintiff was informed by ICBL that it had communicated with the insurer of the motor vehicle registration number H 192, United Insurance Company Ltd. (now called Massy United Insurance Limited) situate at Lower Broad Street in the City of Bridgetown (“the Insurer”).
The plaintiff submitted a quotation to start the process of having the car repaired and the cost was settled by the Insurer. The cost of repair in the sum of $2,241.56 was paid for by the Insurer on or about February 17th, 2005. By letter dated April 27th, 2005 to the Insurer's Claims Manager, the plaintiffs' attorney-at-law, Mr. Taitt, informed the Insurer that he was instructed that the said accident was caused by the negligence of the said Ben Greene in driving, managing and controlling the said vehicle and that Ben Greene was a non-national visitor to the island and that he accepted liability at the scene of the accident. Mr. Taitt also stated in his letter that he was informed that liability had been accepted in this matter. In that letter Mr. Taitt also inquired of the Insurer if it would be prepared to advance funds to the plaintiff upon production of the relevant bills in order that her medical treatment may continue without any interruption.
The Insurer responded to Mr. Taitt by letter dated 4th May, 2005 stating that the circumstances surrounding this accident had been reported to it and asked that Mr. Taitt quantify and submit the plaintiff's claim supported by medical evidence. It further confirmed that it was prepared to entertain the request to advance funds and asked that the bills be forwarded for its consideration. The Insurer also requested permission to have the plaintiff medically examined by Mr. Arthur Edghill of the Diagnostic Clinic situate at Beckles Road in the parish of Saint Michael in this Island.
Correspondence by letters continued between the plaintiff's attorney-at-law and the Insurer. The Insurer was informed of and paid for medical expenses incurred on behalf of the plaintiff for the total sum of $10,756.20. On the 20th day of July 2007 a generally endorsed Writ of the plaintiff against the defendants and a Notice of Proceedings was served on the Insurer on the 24th day of July, 2007. By letter of 7th August, 2007 the Insurer acknowledged receipt of the Notice of Proceedings against the defendants.
On the 25th day of June 2008 a certified copy of the Writ of Summons was duly served on the first defendant. It was not served on the second defendant because the second defendant could not be located. On July 21st, 2008 the Writ against the second defendant expired.
On or about October 19th, 2009, an Acknowledgment of Service was filed on behalf of the first defendant. By letter dated 12th October, 2009 the Insurer forwarded to Mr. Taitt an unsigned report dated September 24th, 2009 authored by the plaintiffs tutor Dr. Lyndon Waterman of the University of the West Indies. This report had been recommended by Dr. Edghill, a medical practitioner to whom the plaintiff had been referred by the Insurer. In 2009 Mr. Taitt received a medical report from Dr. Jeffrey Gay dated May 15th, 2008. On the 6th day of April 2010 Mr. Taitt received the aforementioned report from Dr. Lyndon Waterman duly signed. An updated version of the medical report from Dr. Gay dated May 15th, 2008 was received by Mr. Taitt on October 21st, 2011.
A quantified claim dated December 19th, 2012 was sent to the first defendant's attorney-at-law, who responded by letter dated 20th December, 2012 claiming that, in the absence of service of the writ on the second defendant or an extension of time for service by the Court, the writ had died due to the failure to serve the second defendant within the one year window. Interestingly, the letter did not deny liability for the accident by the Insurer.
On July 19th, 2013 the first defendant applied to the Court, by way of Summons (the defendants' summons), seeking the following relief:
(i) An order that the first defendant be removed as a party to the action, on the ground that there is no contractual or tortious relationship between the plaintiff and the first defendant and consequently, the first defendant is not a proper or necessary party to the action.
On the 24th September, 2013 the plaintiff filed an Affidavit in Reply to the first defendant's Application and averred the following:
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(i) The first defendant's application is unwarranted.
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(ii) Furthermore, the first defendant's application is premature and or improperly before the Court.
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(iii) In any event the first defendant's application must fail ab initio for failure to disclose sufficient grounds.
By way of Summons filed on August 15th, 2013 (the plaintiff's summons) the plaintiff applied to the Court seeking the following orders:
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(i) The defendants are estopped from relying on the provisions of section 20(2) of the Limitation of Actions Act Chapter 231 of the Laws of Barbados;
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(ii) The provisions of section 20(2) of the Limitation of Actions Act Chapter 231 of the Laws of Barbados shall not apply to this action;
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(iii) The Writ of Summons filed herein and issued on the 20th July, 2007 shall stand renewed for one year as against the second defendant;
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(iv) The plaintiff shall be at liberty to serve the renewed Writ of Summons on the second defendant outside of the jurisdiction or by substituted service by way of advertisement in a local Newspaper;
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(v) Leave is granted to the plaintiff to continue her action on the question of quantum only as liability had earlier been admitted or conceded by or on the behalf of the defendants or by virtue of the conduct by or on behalf of them;
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(vi) The plaintiff be at liberty to amend the Writ of Summons filed herein and issued on the 20th July, 2007 by adding or substituting United Insurance Co. Ltd as a defendant to the action;
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(vii) Such further or other orders as the Court may deem fit.
The plaintiff filed an affidavit in support of her application on 16th August, 2013 the salient points of which are as follows:
- That I am the plaintiff herein. 2. That on or about the 22nd day of July 2004 I had brought motor vehicle registration number O 272 which I was driving to a complete stop along Highway 1 in the vicinity of Sunset Crest Holetown in the parish of Saint James in this Island when my said motor vehicle was struck in the rear by motor vehicle registration number H 192. 3. When I got out my vehicle the driver of the said motor vehicle registration number H192 identified himself to me as Ben Greene, a tourist, apologised for colliding with me and acknowledged that it was his fault. He also admitted liability in the presence of the Police. 4. As a result of the collision I sustained injuries loss and damage. 5. On the same day I notified my Insurer the Insurance Corporation of Barbados Limited situate at Roebuck Street in the parish of Saint Michael in this Island. The following day I received a call from my said Insurer indicating that it had communicated with, and liability had also been accepted by, the Insurer for the owner of motor vehicle registration number H 192, United Insurance Company Limited situate at Lower Broad Street in the City of Bridgetown (hereinafter referred to as ‘the Insurer’) and to submit the quotation to start the process of having the car repaired and the cost settled by the Insurer. 6. I complied with that and all of the requests made of me by my Insurer pursuant thereto. 7. That cost of repair was the sum of $2,241.56 which I am aware was ultimately paid for by the Insurer on or about the 17th day of February 2005. Attached hereto and marked “Exhibit KH1” is a copy of the receipt confirming the same. 8. I retained Mr. Branford McG Taitt attorney-at-law shortly thereafter in April of 2005 to act on my behalf for the purposes of claiming compensation for my injuries loss and damage. 9. As a result of the injury I was unable to work and advised Mr. Taitt that I could no longer afford to pay for my medical treatment. I therefore instructed' him to request and facilitate payment by the Insurer which he did. 10. I am aware that Mr. Taitt then and thereafter interacted with the...
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