Mon | Oct 23, 2017

Appeal Court nudges Parliament

Published:Sunday | June 28, 2015 | 12:00 AMBarbara Gayle
Police at the scene of a two-vehicle collision in downtown Kingston recently.

The Court of Appeal has recommended the introduction of a compensation scheme for persons injured by the actions of uninsured drivers of motor vehicles.

The recommendation was made recently when the court threw out an appeal in which Mecheck Willis was seeking to claim a Supreme Court award of $34 million from Globe Insurance Company of Jamaica Ltd.

Willis had been seriously injured in a motor vehicle accident in 2001, but in 2012 Justice Ingrid Mangatal ruled in the Supreme Court that Globe was not liable to pay him because the driver did not have a licence.

Driven by 16-year-old

At the time he was injured, the motor car was being

driven by 16-year-old Devar McFarlane, who lost control of the vehicle and collided with a car being driven by Willis.

McFarlane died as a result of the accident and Willis, a 40-odd-year-old higgler, suffered serious injuries to his legs and has not been able to work since then.

Willis sued Patrick and Yvonne Flynn, owners of the motor vehicle, for negligence and was successful in getting a Supreme Court award of $34 million against the couple. However, he was not able to recover the money from them so he sued Globe, the insurer of the Flynns' motor car.

Globe, which was represented by attorney-at-law David Johnson, filed a defence that the driver was 16 years old at the time of the accident, was not the holder of a valid driver's licence and was, therefore, not permitted under the law to drive or operate the vehicle.

Following the Supreme Court's ruling, attorney-at-law Marvalyn Taylor-Wright, who represents Willis, argued that the Government should ensure that legislation was in place to protect persons who made claims under the Motor Vehicle Insurance (Third Party Risks) Act.

Taylor-Wright took the case to the Appeal Court where president Justice Seymour Panton, Justice Hillary Phillips and Justice Marva McDonald-Bishop heard the appeal.

The judges ruled that the driver was not legally permitted to drive a motor vehicle, therefore there was "no valid insurance policy in place at the time of

the unfortunate accident that

has had such catastrophic

consequences on the life of the appellant".

According to the judges, it would be wrong to impose on an insurer a liability that the insurance policy did not purport to cover.

"It seems to me that situations such as this require the intervention of the State in the form of the creation of a fund that would provide for innocent, unfortunate victims such as the appellant," said Justice Panton.

"It is most unfortunate that no facility exists in Jamaica to satisfy the judgment in this claim," added Justice Panton.

Justice Phillips noted that in Great Britain there is legislation to protect innocent third parties from the actions of uninsured drivers with the Motor Insurer's Bureau (Compensation of Victims of Uninsured Drivers) Agreement.

First in the region

"While I recognise that, unfortunately, there is no institution of this type in Jamaica, the Jamaican legislature ought to take the crucial novel step of being the first in the region to implement such a scheme in order to cure the social evil created when unlicensed drivers cause personal injury, property damage or death to innocent third parties for which there is no compensation," said Justice Phillips.

Taylor-Wright, in commenting on the outcome of the case, said she gave it her best shot.

"But it is really a social evil that has not been addressed by Parliament," said the lawyer who led the fight for Willis.

According to Taylor-Wright, she is happy for the directive given by the court for the Government to address the issue, as there are many persons who are injured like Willis, and who cannot get any compensation.