Nicol v Whiteoak

Judgment 1HIS HONOUR : The plaintiff was seriously injured in a boating accident on 16 September 2006 when she was a passenger in a boat then being driven by Steven Whiteoak. Mr Whiteoak was killed in the accident. The owner of the boat was Scott Murray Whiteoak who was insured to cover a legal liability to pay compensation to the plaintiff for her personal injury pursuant to a policy of insurance issued by Club Marine Ltd. The second defendant was the driver of a boat that collided with Mr Whiteoak's boat. 2By notice of motion filed on 14 December 2010, the plaintiff sought a grant of leave to join Club Marine Ltd as a defendant pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 . She also sought leave to file an amended statement of claim. When the matter came before me on 16 March 2011, Mr Goodridge of counsel for the plaintiff informed the Court that the application for leave to join Club Marine Ltd pursuant to s 6(4) was no longer pressed. That appeared to be uncontroversial having regard to evidence that had been filed suggesting that Club Marine Ltd may have had a defence to the claim arising from one of the general exclusions dealing with circumstances where the insured's boat was being driven by a person under the influence of alcohol or drugs. Club Marine Ltd is already a defendant named in the third cross-claim. 3Instead, Mr Goodridge sought leave to file an amended statement of claim, in which Club Marine Ltd was named as a fourth defendant, upon the basis that the plaintiff was entitled to some form of relief against the company by virtue of the operation s 48 of the Insurance Contracts Act 1984 . That section is as follows: " 48 (1) Where a person who is not a party to a contract of general insurance is specified or referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, that person has a right to recover the amount of the person's loss from the insurer in accordance with the contract notwithstanding that the person is not a party to the contract. (2) Subject to the contract, a person who has such a right: (a) has, in relation to the person's claim, the same obligations to the insurer as the person would have if the person were the insured; and (b) may discharge the insured's obligations in relation to the loss. (3) The insurer has the same defences to an action under this section as the insurer would have in an action by the insured." 4Despite this late change to the nature of the plaintiff's application, neither Mr Parker of counsel who appeared for Club Marine Ltd nor Mr Robison of counsel who appeared for the first defendant opposed the matter proceeding before me in the way indicated. 5Paragraphs 7, 8 and 22 of the proposed amended statement of claim are in the following terms: "7. By a policy of insurance numbered N 188295 ("the policy of insurance") dated 20 January 2006, and made between the fourth defendant and Scott Murray Whiteoak, the fourth defendant in consideration of a premium then paid to it agreed for the period between 20 January 2006 and 20 January 2007 to indemnify Scott Murray Whiteoak or any person driving boat registration number UX318N with his permission for any liability to pay compensation for loss or damage, for death or bodily injury arising out of the use of the said boat. 8. The fourth defendant has failed and refused to indemnify Steven Whiteoak and/or his estate. The first defendant was entitled to indemnity under the policy of insurance in respect of the injuries and loss suffered by the plaintiff sustained in the collision.