The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A leading QC yesterday said the Bahamas needed to “urgently” address compensation for victims of uninsured drivers, backing judicial calls for “intervention” by the Government and Parliament.

Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, told Tribune Business that the issue merited priority attention simply given that there were “a huge number” of Bahamians who had become the victims of uninsured drivers.

Mr Moree, who represented Insurance Company of the Bahamas (ICB) before the Privy Council, in its successful appeal against a driver “tragically blinded” in a traffic accident with a jitney, said a different verdict would have had “a direct impact” on the Bahamian insurance industry.

The Privy Council ruled that Eric Antonio, the “blinded” driver, was unable to enforce a $521,943 damages judgment against ICB as the insurer of the jitney he collided with.

This was because the jitney’s driver, Stevan Edgecombe, was not among the 11 Convenient City Transit Services employees named on the ICB policy as persons ‘authorised’ to drive the vehicle.

This ‘restricted driver’ clause, which insurers use to limit their payout liability exposure only to accidents involving ‘authorised’ drivers named on the policy, barred Mr Antonio’s claim even though Edgecombe’s “negligence” caused the accident.

Acknowledging “the plight” of victims such as Mr Antonio, who are unable to receive an insurance claim or any other form of compensation, Mr Moree told Tribune Business: “The solution lies in legislative intervention.

“That point was made both in the judgment of the Court of Appeal and the Privy Council’s, and similar sentiments have been expressed in cases involving the same point in other Caribbean countries, including Trinidad.”

Lord Mance, the UK law lord who wrote the Privy Council’s judgment, suggested the Bahamas follow the lead established by the UK and European Union (EU), and create a fund - financed by the insurance industry - that could compensate persons injured in accidents caused by uninsured drivers or persons not authorised to drive the offending vehicle.

The UK compensation fund is called the Motor Insurers’ Bureau, and Mr Moree agreed that the Bahamas could implement a similar solution or “variation” of that model.

“It’s a question of priorities, but there are a huge number of people in our country who have been in accidents caused by someone not insured, or been in a situation where they have been unable to obtain compensation,” Mr Moree told Tribune Business.

“It seems to me to be a fairly urgent matter to address; an important issue that affects a huge number of people. The issue is not to make insurance companies liable when under the policy they are not, but to craft legislative amendments to provide solutions to this situation.”

Mr Moree emphasised that he was not suggesting the Bahamas “replicate” the UK’s Motor Insurers’ Bureau, adding that it provided “a good model” and “a starting point” for further discussions between all stakeholders - the insurance industry, civil society and the relevant government departments.

“It is a matter that deserves some sort of attention at the legislative level,” Mr Moree reiterated.

Victims of accidents involving uninsured and ‘unauthorised’ drivers are currently left to seek compensation through the courts, where cases are often backed up for years due to the ongoing backlog.

In many cases, the culprits lack the necessary funds to compensate their victims - something that appears to have occurred in Mr Antonio’s case with Convenient City Transit Services and its driver, Stevan Edgecombe.

The Privy Council judgment said not a cent of his $521,943 damages judgment, obtained in 2010, has yet been paid, and it is likely the jitney company’s inability to pay that forced Mr Antonio to turn to ICB.

Summarising the plight of Mr Antonio and hundreds of other Bahamians, the Privy Council ruling said “Whether a victim of negligent driving can look to insurers of the negligent driver can be vitally important for the victim.

“But it is a matter over which the victim has commonly no control. It depends upon whether insurance has been arranged by or on behalf of the driver or driver’s employer, and it also depends upon the terms of that insurance, subject to limited statutory qualifications to ensure that these cannot always be relied upon as against a third party victim.

“There are, as a result, cases including the present - as the Board will humbly advise Her Majesty for reasons which will appear - in which the victim has no insurer to which to look.”

Echoing Mr Moree, the Privy Council judgment said that were it to support Mr Antonio, it would “undermine” the insurance industry’s risk mitigation efforts and result in “higher premiums across the board” for Bahamian motorists.

“The solution is not for courts to impose on insurers liabilities which they are not required to bear, either under the insurance cover which they have properly issued, or under current legislation,” the verdict said.

“Insurance is based on an assessment of the risks undertaken, and of the premiums appropriate to cover such risks. Named driver policies are a means by which insureds and insurers identify the cover required and define and limit the premiums payable. They are permissible under current law in the Bahamas.

“To impose on insurers liability for accidents caused by other drivers not named on the relevant policy is to expand the risks, and to undermine the purpose of named driver cover,” the verdict added.

“If such liability is imposed in respect of insurances already issued, insurers will have received no premiums for such risks. In relation to future insurances, higher premiums would have to be charged across the board, and individual motorists will be unable to obtain the benefits of reduced premiums under named driver cover. Some motorists might not be able to afford the resulting increased premiums.”