United General of Jamaica Insurance Co. Ltd. v McDonald, Leroy

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO HCV 0836 OF 2005

BETWEEN UNITED GENERAL OF JAMAICA INSURANCE CO. LTD. CLAIMANT

AND LEROY McDONALD DEFENDANT

IN CHAMBERS

Mr. Jeffrey Daley instructed by Blackridge Covington for the clainiant

Mr. Leonard Green instructed by Chen Green and Company for the defendant

February 9 and 24,2006

MISREPRESENTATION, BREACH OF INSLIRANCE CONTRACT, APPLICATION FOR

DECLARATION UNDER SECTION 18 OF THE MOTOR VEHICLE ACCIDENTS (THIRD

PARTY RISKS) ACT AND RULE 10 OF THE CIVIL PROCEDURE RULES 2002

SYKES J

1. On September 29, 2004, there was an accident along the Chichester Main Road in the

parish of Hanover. The bus was owned by Mr. Leroy IYcDonald and driven by his son. The

bus was licensed and insured to carry fifteen passengers. The passengers in the bus have

launched claims against United General Insurance Company (UGI). UGI now seeks two

declarations by a fixed date claim form. The first is that Mr. McDonald misrepresented to UGI

the number of passengers he intended to carry and second, there was a breach of the policy

of insurance because more than fifteen persons were in the bus at the time of the accident.

This is permitted by section 18 (3) of the Motor Vehicle Insurance (Third-Party) Risks Act

(see also Barbados Fire & General Insurance Company v Pinder (1993) 52 W.I .R . 49).

2. In s~~ppoorft its application UGI has filed an affidavit sworn by Miss Julia Roache in

which it is alleged that eighteen persons have filed suit against UGI. These persons, it is

alleged, were in the bus at the time of the accident. The defendant says at paragraph 7 of

his defence that he does not know whether there were eighteen persons in the vehicle

because he was not there. Mr. Daley, like me, finds it odd that the driver was the

defendant's son and yet he (defendant) is unable to say the number of persons inside the