TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
H.C.A. Cv. S-726 OF 2005
CAPITAL INSURANCE COMPANY LIMITED
Before The Honourable Mr. Justice Stollmeyer
Mr. K. Neebar for the Plaintiff
Mr. L. Sanguinette for the Defendant
By Summons of 6th July 2005 the Plaintiff sought judgment in default of defence.
The short issue for determination was whether the Plaintiff had satisfied the
requirements of Section 10(2) of the Motor Vehicles Insurance (Third-Party
Risks) Chap. 48:51. In effect, the provisions of the Act require that an insurer
have notice of the bringing of proceedings by a plaintiff arising out of a motor
vehicular accident. Without such notice, an insurer is not liable under a policy of
insurance it has issued.
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The Plaintiff was injured as a consequence of a motor vehicular accident on 24th
August 1984. That is not in dispute, nor is it in dispute that the Defendant was the
insurer of motor vehicle TT 1377 driven at the time by Shaim Bocas.
On 15th July 1988 the Plaintiff instituted HCA 1798 of 1988 against the owner
and driver of that vehicle and obtained judgment against them on 25th October
1995. By the present proceedings he claims against the Defendant as the insurer
damages exceeding $1,100.000.00 as a consequence of that earlier judgment, as
well as the costs of those proceedings.
It is not disputed that the Defendant was notified of the accident and of the
Plaintiff's claims. The issue is whether the notification received by the insurer
was sufficient in all the circumstances to make it liable. The Plaintiff relied on
1. a letter from the Plaintiff to the Defendant dated 22nd January
2. a letter of 3rd April 1986 from his then attorneys, R.T. Peña & Co,
to the Defendant;
3. a letter of 22nd March 1988 from the Plaintiff's then attorneys,
Montano & Co., to the Defendant.
Those letters read as follows:
"1986 January 22
Capital Insurance Limited
38 Cipero Street
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I was involved in an accidence on 1984 August 24 with vehicle No. TT-
1377 insured by your Company and driven by SHARON BOCAS.
As a result of the said accident I was forced to retire from the services of
Trinidad and Tobago Petroleum Company Limited (formerly Trinidad-
Tesoro Petroleum Company Limited) on Medical Grounds.
I have been discharged from the San Fernando General Hospital and
assessed at eighty per-cent (80%) Parmanent Partial Disability by Dr. P.
Owing to the nature of my injury it is impossible to find gainful
employment. I am therefore asking for the sum of Three Hundred and
Fifty-Six Thousand, Nine Hundred and Twenty-Four Dollars
($356,924.00) in full settlement of my claim (see appendix I).
Enclosed please find copy of Medical Report and Notice of Termination of
/s/ Percy Fraser
"3rd April, 1986.
Messrs. Capital Insurance Limited,
38 Cipero Street,
We act on behalf of our client Percy Fraser.
We are instructed that on the 24th August, 1984 our client sustained
certain injuries as a result of the negligent driving of vehicle TT 1377 by
you insured SHARON BOCAS. We are further instructed that our client
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wrote to you in connection with this matter on the 18th November, 1985
and on the 22nd January, 1986 but that to date he has had no response
from your goodselves. We enclose copies of the correspondence for your
ease of reference.
We shall be grateful for your early response in this matter as our client is
undergoing severe pain and suffering and is therefore anxious for
R.T. Peña & Co."
"The Capital Insurance Co. Ltd.,
38 Cipero Street,
Re: H.C.A. No. 1325 of 1988
Percy Fraser –v- St. Rose Ranghell
And Shaim Bocas______________
We act for Mr. Percy Fraser, the Plaintiff in the above action.
Please be informed that we have filed a Writ of Summons on behalf
of our client for damages for negligence arising out of an accident on 24th
August, 1984 on the Siparia Erin Road, Santa Flora. Attached hereto is a
sealed copy of the said Writ of Summons and the Statement of Claim for
Please be guided accordingly
MONTANO & CO.
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The Defendant does not deny receipt of any of these letters.
In essence, Mr. Sanguinette's submission was that each of these letters had to be
take on their own and not together.
Additionally, and as a matter of law, he submitted that an insurer must not only be
given notice of the claim, but must be made aware that if the claim is not settled
then legal proceedings will follow. None of these letters, he submits, satisfies
these two pre-requisites.
The Plaintiff's letter of January 22 1986 sets out his claim but does not threaten
legal proceedings if settlement is not forthcoming. R.T. Peña & Co's letter of 3rd
April 1986 takes the Plaintiff no further.
Finally, Montano & Co's letter of 22nd March 1988 might give details of the
claim, and does threaten legal action but it is not a notice of intended proceedings.
It is notice that proceedings have begun, submits Mr. Sanguinette, but those
proceedings were subsequently abandoned and Montano & Co's letter cannot give
any legitimacy to the proceedings which were subsequently instituted i.e. HCA
1798 of 1988.
In short, Mr. Neebar's submission was that the combination of these three letters
not only gave details of the claim to the Defendant, but made it clear that legal
proceedings had been instituted. The fact that the first proceedings were
abandoned and subsequent proceedings instituted makes no difference.
I was satisfied that as a matter of law an insurer must be made aware of a claim
and that legal proceedings would be instituted if there was no settlement. As a
matter of fact, I was satisfied that the Defendant was well aware of claim. That is
indisputable. I was also satisfied that by Montano and Co's letter of 22nd March
1988 the Defendant was aware of legal proceedings. The Defendant knew that it
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had been sued in HCA 1325 of 1988 and it was never given any indication that
the Plaintiff was no longer pursuing his claim or that legal action. The Defendant,
however, took no steps to protect itself or safeguard its position.
One, but not the only, purpose of notice being given to an insurer under Section
10 of the Act is to enable it to institute proceedings e.g. to obtain a declaration of
nullity. By allowing notice to be given prior to the institution of legal
proceedings, the Act clearly requires the insurer to be put on notice, but it does
not require a plaintiff to give to an insurer full details of the legal proceedings
subsequently instituted. See e.g Ceylon Motor Insurance Association Limited v.
Thambugala  AC 584 at 593, where it was said it is not necessary to
specify precisely the action although the name of the court might be given.
I found it a very fine distinction to draw by saying that in the present case the
Defendant did not know, or have notice, of legal proceedings as a consequence of
the Plaintiff's claim not being settled. That is the totality, the conjoint effect, of
the correspondence it received. It took no steps to protect its position in relation
to the first action (HCA 1325 of 1988). To my mind, the long established dual
requirements of notice had been satisfied i.e. notice of the claim and notice of
In the circumstances I gave judgment for the Plaintiff and ordered payment to the
Plaintiff of $200,000.00 (being the statutory limit of the Defendant's liability)
with interest thereon at 6% from 26th October 1995 to 28th September 2000, and
thereafter at 12% to judgment. I also ordered the Defendant to pay the Plaintiff's
costs of this action and of HCA 1798 of 1988 (as Attorneys agreed would be the
correct order) and ordered a stay of execution of 21 days.
4th October 2005
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