‘He chose not to participate’
Application to set aside $16m default judgment in accident claim thrown out
A defendant whose application to set aside a default judgment was thrown out earlier this month by the Supreme Court will now have to pay $16 million in damages to an elderly farmer, who was seriously injured in a motor vehicle accident in 2015.
Rayan Wright, the defendant, had failed to respond to a lawsuit which 78-year-old farmer Ansurd Stephens had filed in 2017 after he was hit by a motor car which Wright was driving.
Justice Tania Mott Tulloch-Reid, in ruling against Wright, pointed out that although he was served with the claim, he did not file an acknowledgement of service or take steps to protect himself. She said he only took steps when he was aware that a final judgment was entered against him in December 2018.
“I am not convinced by the defendant that this is an appropriate case to set aside the default judgment, even though I am of the view that the defendant has a real prospect of successfully defending the case. If I were to do otherwise, the prejudice to the claimant would, in my opinion, be greater than the prejudice that the defendant would suffer,” the judge ruled.
The judge referred to the fact that the claimant is now 78 years old and would have to wait another two years or so for a trial date. The judge blamed the defendant’s insurer for not taking an active role in the proceedings, despite the fact that the claimant’s lawyer had notified the insurance company that a suit was filed against the defendant.
Attorney-at-law Jason Jones, who represented the claimant, had opposed the application for the default judgment to be set aside.
“The rules of court are very important. Litigants need to ensure that they adhere to specific timelines that are in place and they need to move with alacrity,” Jones stressed.
He said his client suffered immensely as a result of the injuries he sustained, and was still suffering, and needs to be compensated.
“There are far too many cases before the court where litigants, especially the elderly, are waiting for years for their cases to be disposed of and many times the delays are caused by some defendants who refuse to respond to the claims,” Jones said.
On December 12, 2018, Supreme Court Judge Sonya Wint-Blair had awarded Stephens, who has 19 per cent impairment of the right knee, $2.6 million for future medical expenses. He was awarded $13,680,000 with interest at three per cent from May 20, 2017 to December 12, 2018 in general damages for pain and suffering.
Stephens was also awarded special damages of $161,000 with interest at three per cent from July 2, 2015 to December 12, 2018 in addition to legal costs assessed at $50,000.
CAUSED BY NEGLIGENCE
According to court documents, Stephens said he was sitting on his bicycle along the side of the Lacovia main road in St Elizabeth about 8:30 a.m. on July 2, 2015 when Wright lost control of the vehicle he was driving at high speed and it hit him.
He said the defendant was talking on his mobile phone while he was driving and was distracted. The accident, Stephens told the court, was caused by Wright’s negligence.
Stephens suffered serious injuries to his right leg and left rib.
After the award for damages was made, Wright applied to have the default judgment set aside because he said he had a defence with a real prospect of succeeding. He contended that it was Stephens who rode his bicycle into the path of his motor car.
The defendant denied being served with the claim form and particulars of the claim. He said he only became aware of the claim in June 2019 when his insurer informed him of the judgment and he then filed an application in August 2019 to have it set aside.
Attorney-at-law Suzette Campbell, who represented Wright, asked the judge to find that he was not served with the documents. She said the witness, Mohan Escoffery, who testified that he served the defendant, did not know him before and took no steps to ensure that he was serving the right person by requesting proof of identification.
Justice Mott Tulloch-Reid, in ruling that the defendant was served on May 20, 2017, said she observed both witnesses and considered their manner in the witness box and their forthrightness in answering questions and found Escoffery’s evidence to be more direct and convincing than that of the defendant.
INSURANCE COMPANY AT FAULT
The judge said the insurance company was notified of the proceedings against the defendant, and prior to that, the defendant had informed the company that he was involved in an accident. The judge said if the insurance company had kept abreast of the proceedings, it would have seen that a default judgment was entered and informed its client. The judge said to wait until a final judgment was entered to inform its client meant that the insurer did nothing during the interim.
“The claimant cannot be made to pay for the failures of the insurance company to take steps on their insured’s behalf in the exercise of its subrogation rights,” the judge held.
“I have considered the fact that this claim arose out of a motor vehicle accident that happened on July 2, 2015, seven years ago, and wonder as to the availability of witnesses (passers-by, persons on the scene at the time of the accident and medical doctors) when the trial is to take place,” the judge said.
In referencing the Constitution, the judge said the defendant had a right to be heard and that right was never taken away from him.
“He chose not to participate in the proceedings. Why should I, at this juncture, deprive the claimant of his judgment when the defendant decided that he did not want to participate and only took steps when he was aware that a final judgment had been granted against him?” the judge queried.
The defendant was ordered to pay to the claimant costs of $350,000 assessed for the application.