Bahamas Telecommunications Corporation et Al

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Sawyer, J.
• Judgment Date: 02 May 1994
• Docket Number: No. 1325 of 1990
• Date: 02 May 1994

Supreme Court

Sawyer, J.

No. 1325 of 1990

E. Charles Moss Gas Co. Ltd. Et Al.

and

Bahamas Telecommunications Corporation et al

Appearances:

Mrs. C.A.E. Lashley for the plaintiffs

Mrs. T. Hanna-Bellot for the defendants.

Statute - Interpretation — Public Authorities Act, Cap. 58 (Bahamas)— Whether first defendant a public authority for the purposes of Cap. 58 by virtue of Bahamas Telecommunications Corporation Act, Cap. 277, s. 10(2) of — Whether the act of negligence complained of was done “in the execution or intended execution” of the first defendant's statutory functions and/or duties under Cap. 277 — 5.2 of Cap. 58 — Whether first defendant estopped from relying on the protection of Cap. 58.

Sawyer, J.

1 This action which commenced almost four years ago (28th September 1990) was apparently set down for trial by a notice of trial which was filed since October 26th, 1992.

2 After the action had reached that stage, counsel for the defendants, by a summons filed December 4th, 1992 applied to the Registrar under Order 18 rule 19 of the Rules of the Supreme Court, 1978, to strike out the Statement of Claim on the grounds that (the same discloses no reasonable cause of action and are (sic) frivolous and vexatious and under the inherent jurisdiction of the Court for an order that the plaintiffs (action be dismissed and that the costs of and occasioned by this application and of this action be paid by the plaintiffs' to the defendant (sic) to be taxed if not agreed.”

3 That summons was apparently heard by the Deputy Registrar who, on 19th November 1993 dismissed the application.

4 On 24th November, 1993 i.e., just within the 5-day period limited by the rules for appealing, a notice of appeal was filed on behalf of the defendants.

5 A notice of hearing for that appeal was filed on January 10th, 1994. That notice indicated that the hearing of the appeal which had been previously set for 21st April, 1994 had been changed to 11th April, 1994, no doubt so as to allow that interlocutory matter to be heard by the Court prior to the date which was already fixed for the hearing.

6 It appears that subsequent to the filing of that notice, due to no action of any party in this action the matters which had been fixed for 11th April, 1994 were apparently all vacated because that was the date on which the branch of the Supreme Court in Grand Bahama was scheduled to be “opened”. However, that proposed date was subsequently changed but not, apparently, in time for the appeal to be reinstated.

7 Be that as it may, when this action came on for trial, Mrs. Hanna-Bellot applied for an adjournment of the trial so that the defendants' interlocutory appeal could be heard and disposed of because it was not the fault of the defendants that that had not been done before the date for trial and also if the defendants were successful in their appeal it would dispose of the whole action.

8 Mrs. Lashley objected to the adjournment on the grounds that to grant an adjournment would further delay the trial and that the matters raised by the Notice of Appeal could equally be raised by way of preliminary objection at the trial so that there would be no injustice done to the defendants by refusing to grant the adjournment.

9 I accepted Mrs. Lashley's submission about that because it seemed to me that no injustice would be done to the defendants if the same matters which were intended to be raised on the appeal were raised by way of preliminary objection. Furthermore as one of the defendants was a public corporation (i.e. an emanation of the state) and was seeking to rely on section 2 of the Public Authorities Protection Act (Ch. 58) (“the act”) I felt that in any case the defendants' submissions should be heard in open Court rather than in chambers particularly in view of when the original application was first mooted in relation to the application to set the action down for trial. I therefore refused the adjournment. Later (i.e. on 19th April, 1994) Mrs. Hanna-Bellot stated that she thought I had “ordered” her to proceed by way of preliminary objection. Needless to say, I made no such order and that fact was pointed out to Mrs. Hanna-Bellot and that it was open to her as counsel to decide what course she wished to adopt.

10 Mrs. Hanna-Bellot then submitted in effect that the plaintiffs' action is hopeless and that it ought to be dismissed because the defendants have an unanswerable defence under section 2 of the act as read with section 10(2) of The Bahamas Telecommunications Corporation Act (Ch. 277) (“the Batelco Act”). Hereafter I shall refer to the 1st defendant as “Batelco”.

11 As I understood Mrs. Hanna-Bellot's submissions (and without quoting her verbatim) they amounted to this: Even if' there was an admission of liability by Batelco as there was a dispute as to the quantum of damages which was to be paid to the plaintiffs, in the absence of an express waiver of the protection of the act the plaintiffs cannot in law succeed in their claim and the doctrine of estoppel relied on by the plaintiffs would not apply so as to take the action out of the protection of the act because even if there was an acceptance of liability by Batelco there was likely to be a dispute as to quantum of damages or at any rate there was no agreement as to the quantum of damages and there must be acceptance of both those things or an express waiver of the protection of the act before the doctrine of estoppel could apply.

12 Mrs. Hanna-Bellot referred to a number of decisions of persuasive authority in support of her submissions.

13 Mrs. Lashley in reply, relied on the doctrine of estoppel to displace the limitation defence as pleaded by the defendants in their defence filed on August 14th, 1991 (i.e. during the long vacation of the Court). As I understood Mrs. Lashley's submissions (without repeating them verbatim here) it was that the defendants ought not to be allowed to shelter behind the act because Batelco represented that it would pay for all the damages which were occasioned to the plaintiffs and there was no evidence to suggest that Batelco ever intended to renege on that representation. The effect of the representation and other conduct of Batelco and its insurers — J.S. Johnson & Co. Ltd. — was to lull the plaintiffs into the belief that once a replacement truck was found the plaintiffs would be paid.

14 Mrs. Lashley referred to a number of decided cases to support her submissions.

15 But before dealing with the law I need to refer to the relevant parts of the pleadings and the “evidence”.

16 The present issue was raised because in their defence, after denying negligence, pleading contributory negligence on the part of the 2nd plaintiff, the defendants plead:–

“5. The plaintiffs' alleged cause of action herein arose more than six months before the date of the commencement of this action and accordingly the plaintiffs' claim herein is barred by the provisions of the Public Authorities Protection Act Chapter 58.”

17 By their amended reply filed on 18th April, 1994, the plaintiffs pleaded to that averment as follows:–

“3. The defendants are estopped from relying on the limitation in the Public Authorities Act.

PARTICULARS

• A. The defendants advised the plaintiffs that their claim would be paid after they had determined what the whole claim was.

• B. The defendants advised that the plaintiffs could not receive payment for their claim as they determined what the various items were.

• C. The defendants advised that only one payment could be made, and if the plaintiffs wanted and accepted payment, such payment would have to be in full and final settlement of their claim, irrespective of additional expenses and losses.”

18 The evidence relied on by Mrs. Hanna-Bellot was contained primarily in an affidavit sworn by one Timothy Ingraham of J. S. Johnson & Company Ltd. on 10th August, 1993 and filed on 13th August, 1993, paragraphs 2 – 6 of' which read as follows:–

• 2. I have read the affidavit of Eldica Moss sworn herein on the 22nd June, 1993. I never stated or in any way suggested to Ms. Moss that J. S. Johnson would settle her claim in the amount proposed by her. It was always the practice of J. S. Johnson to evaluate all claims submitted before committing to pay any particular sum and this practice was adhered to in this case.

• 3. By letter dated 7th September, 1989 Ms. Moss submitted a claim for a total of $25,177.50. There is produced and shown to me marked ‘TI.1’ a copy of the said letter from Ms. Moss. We evaluated the claim and concluded that it was excessive as the plaintiff was claiming the cost of a new truck.

• 4. On the 3rd October, 1989 Ms. Moss visited the offices of J. S. Johnson and an offer of $12,500.00 was made to her for the loss of her truck. This offer was made on the basis that the truck was a 1987 model and after applying a depreciation of 20% per year, the market value of the truck at the date of the accident was $12,500.00.

• 5. This offer was rejected in clear terms by Ms. Moss on the basis that J. S. Johnson was responsible for supplying Moss Gas with a new truck. I heard nothing further from Ms. Moss until we received a copy of the Writ of Summons from our insured.

• 6. I have never either expressly or impliedly represented to Ms. Moss that it would not be necessary for her to institute Court proceedings.”

• Mrs. Lashley relied on the evidence contained in an affidavit sworn by Ms. Eldica Moss on behalf of the plaintiffs on 22nd June 1993 and filed 23rd June 1993. Paragraphs 2 – 14 of that affidavit read as follows:–

• 4. That I communicated with Mr. Claude Hanna of Batelco who advised me that Batelco would settle all outstanding costs relating to the accident.

• 5. That I attempted to replace the truck belonging to the first plaintiff with urgency as without it the plaintiff's business was severely handicapped, and we were...