The Cayman Islands' Grand Court has settled a long-standing controversy which has plagued those injured in road traffic accidents over many years.
In short, by the enactment of Motor Vehicles Insurance (Third Party Risks) Law (1964) (Motor Insurance Law), the legislation established a stand-alone prescribed limitation period of 3 years for an injured party to bring a claim arising from a vehicle accident. This provision endured the 1991 Revision though to its present form in 2012, under s.17 (s.17).
Although this limitation period ultimately corresponded with s.13(4)(a) of the Limitation Law (originally enacted in 1991) for personal injuries (i.e. 3 years from the date of the accident), because claims resulting from a road traffic accident were deemed to be governed exclusively by the Motor Insurance Law, this had historically prohibited injured parties from seeking the court's discretion to extend the period of limitation under s.39 of the Limitation Law.
In a detailed and far-reaching judgment consisting of 45 pages, Mr. Justice McMillan in Bennett v. Diaz (2020) (unreported) (Bennett) determined that the introduction of the Limitation Law impliedly repealed s.17. Consequently, going forward, the Limitation Law now governs personal injury claims arising from road traffic accidents.
The background to the case is only relevant to the extent that the plaintiff failed to issue proceedings within 3 years from the date of a motor vehicle accident. Consequently, she sought the court's discretion to extend the primary period of limitation under s.39 of the Limitation Law.
In response, the defendant admitted liability but pleaded the expiry of the limitation period set out in s.17, and predictably denied the applicability of ss. 13 and 39 of the Limitation law.
The central question before the court was whether the Limitation Law, when originally enacted in 1991, impliedly repealed s.17. If so, this would enable the Court to consider its jurisdiction to exercise a power under section 39 of the Limitation Law for those injured in a motor vehicle accident.
The Legal Framework and Historical Perspective
It is important to understand that before the introduction of the Motor Insurance Law in 1964, there was no limitation period for torts or other wrongful acts relevant to personal injury in the Cayman Islands. Therefore the 1964 legislation was a means to introduce some form of limitation of actions concerning those injured by the negligence of other road users.
The Motor Insurance Law was revised in 1991 (8th March) and although the first Limitation Law was enacted 4 months later in July 1991, the formal text of s.17 (unchanged from the 1964 legislation) remained in situ.
S.17 states as follows:
 "Notwithstanding anything contained in any other law or in any rule of law or equity, no action shall be brought in any court by or on behalf of any person after the end of the period of three years from the date on which a cause of action accrued for any injury or damage against or in respect of which a vehicle is required to be insured under this Law."
Notably, the introduction to s.17 clearly expresses that its
provisions, which includes the period of limitation, prevail over
any other law, rule or equity (see also below, s.44 of the
The Cayman Islands first introduced specific legislation concerning the limitation periods for claims by virtue of the Limitation Law 1991. Concerning personal injury matters, the following provisions under Part II apply:
13(1) This section applies to any action for negligence, nuisance or breach of duty......where the damages claimed by the Plaintiff ....include damages in respect of personal injuries....(3)
An action to which this section applies shall not be brought after the expiration of the period applicable with subsection (4) or (5).(4)
Except where subsection (5) applies, the period applicable is three years from-
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
Part III of the Limitation law addresses discretionary exclusion of time limits:
39(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
(a) Section 13 or 16 prejudices the plaintiff or any person who he represents; and
(b) Any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
Accordingly, s.39 permits the court to exercise a broad equitable discretion to allow an action to proceed despite the limitation period prescribed by s.13.
Section 44 of Part IV provides a 'savings' provision as follows:
44(1) This Law does not apply to any action ...........for which a period of limitation is prescribed by or under any other Law.........
Thus, the combination of S.17 and Section 44 of the Limitation Law resulted in the Grand Court previously considering itself bound to determine that in a personal injury claim arising from a motor vehicle, the Limitation Law did not apply.1
The Plaintiff's Fresh Approach: Hansard and Application of Pepper v. Hart  AC 583
Faced with the conventional course by the court in the application of s.17, the Plaintiff sought to argue that when the Limitation Law was introduced, it impliedly repealed the provision under s.17.
In order to progress this submission, the Plaintiff sought to cite references from Hansard during the original debates of the Limitation Law. However, this of itself proved to be a legal obstacle.
By s.11 of the Legislative Assembly (Immunities, Powers and Privileges) Law (2015 Revision) (Legislative Assembly Law), permission was required from the Speaker before any evidence could be adduced in court relating to debates or proceedings in the Legislative Assembly. Formal permission was refused2 and as a consequence, the Plaintiff thereafter successfully applied for leave to bring judicial review proceedings.
The substantive hearing was contested and over the course of a two day hearing, the Attorney-General argued, inter alia, that s.26 of the Legislative Assembly Law excluded the jurisdiction of the court in respect of the permissive power. This was rejected by the Grand Court which ultimately declared that ss.11 and 26 were unconstitutional and of no effect.
Equipped now with the text of the material Hansard debate3 , the Plaintiff was required the leave of the court to admit the same into evidence, the purpose of which was to assist the court in the construction exercise concerning the context in which the Limitation Law was passed and the 'mischief' that the legislation was intended to address.
In summary, the general principles set out in Pepper v. Hart state that subject to any question of Parliamentary privilege (which, in effect, had been resolved within the judicial review proceedings), the rule excluding reference to Parliamentary material as an aid to statutory construction should be relaxed so as to permit such reference where:
- legislation was ambiguous or obscure or led to absurdity,
- the material relied upon consisted of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as was necessary to understand such statements and their effect, and
- the statements relied upon were clear.
Mr. Justice McMillan was therefore required to determine the nature of the material in giving his consideration as to whether it would be of 'real help' in resolving the case and in arriving at a properly informed decision. Although several passages were examined, it was clear that in introducing the Limitation Law 1991, the then Attorney General (as promoter) acknowledged that the legislation was largely drawn on the UK's Limitation Act 1980 and he emphasised the intended application of Section 13 as follows:
"it deals with damages in respect of personal injuries that arise either because of negligence, nuisance, or breach of duty however arising. But the classic action for personal injury is the action for damages arising out of a motor car accident or a road traffic accident where the victim will be claiming against another party, the driver. I mention that as an example, just to bring home, in simple language, what we are talking about. But in fact, those sections apply to all forms of action, however they might arise in which personal injury is the essence of it." [emphasis added]
The Judge concluded that it was beyond doubt what the people of the Cayman Islands were clearly and authoritatively told about the new Limitation Law, its purpose and intention. Furthermore, the Plaintiff had a basis to argue that the apparent inconsistent provisions of s.13 of the Limitation Law and s.17 led to an 'absurdity'. Accordingly, supported by both history and context, the court determined that the conditions for permitting reference to Hansard were satisfied and the issues of construction in the case were of public importance.
Implied Repeal of s.17
There is a general presumption against implied repeal and therefore the burden of establishing the doctrine lies on the party asserting it. Implied repeal is described in Bennion as circumstances where the provisions of an Act are inconsistent with the provisions of an earlier Act, the earlier provisions may be impliedly repealed by the later. In West Ham Church Wardens v. Forth Mutual Building Society,4 Mr. Justice Smith defined the test as:
"......whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later act so inconsistent with or repugnant to the provisions of an earlier act that the two cannot stand together."
Later Lord Justice Laws in Thoburn v. Sunderland City Council stated:5
"The rule is that if Parliament has enacted successive statutes which on the true construction of each of them make irreducibly inconsistent provisions, the earlier statute is impliedly repealed by the later. The importance of the rule is, on the traditional view, that if it were otherwise the earlier Parliament might bind the later, and this would be repugnant to the principle of Parliamentary sovereignty."
The Plaintiff argued that her case met all the criteria for when a statute is repealed by implication:
- The provision in the first statute (s.17) is taken away by the second (Limitation Law), especially in circumstances in which the Legislature is attempting to set out a comprehensive code.
- The two standing together would lead to absurd consequences; or
- The relevant provision of the earlier statute is plainly repugnant to the relevant part of the subsequent statute.
In the context that the Limitation Law was a 'comprehensive reforming statute'6 and that the official record of the Legislative Assembly showed that it was intended to apply to the victims of traffic accidents, the court was persuaded that there was no rationale for distinguishing road traffic accidents.
In his findings, Mr. Justice McMillan had found the extracts from Hansard to be of very considerable value. Whilst acknowledging that it was not the role of the court to 'legislate', implied repeal arises to give effect to the legislative will, and to ensure that it is respected and followed as distinct from being undermined.
As regards the 'savings' provision contained in s.44 of the Limitation Law which addresses situations where a period of limitation has been prescribed by or is set out 'under other law', the Judge concluded that if there was an implied repeal of s.17, s.44 would cease to have any application.
Applying a purposive approach, the learned Judge concluded that the Limitation Law set out new and consistent periods of limitation in respect of legal proceedings of every description coming before the courts of the Cayman Islands. It followed, therefore, that whatever is inconsistent with that purpose is likely to be 'repugnant' in the legal sense of the word.
The court accepted unequivocally that the Limitation Law was intended to include and to cover personal injury arising out of a road traffic accident, including motor car accidents. As such, the introduction of the Limitation Law in 1991 impliedly repealed s.17.
The decision in Bennett has been broadly welcomed by personal injury attorneys representing Plaintiff parties. Under the restrictive provision of s.17, the court had no jurisdiction to extend time or exercise its discretion to disapply tortious time limits for those under a disability; those affected by fraud or mistake; those who discover the true nature of their injury outside of the 3 year period, or in any case in which a court considers it equitable.
With the implied repeal of s.17, traffic accident victims are no longer singled out to deprive them of rules of fairness and justice. Indeed they were expressly given, by the promoter of the Limitation Law Bill, as examples of whom the Limitation Law covered and protected.7
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.