JUDGMENT OF AMISSAH J.A.
The plaintiff brought this action in negligence against the defendants. It was tried, and on 23 October 1967 judgment was given awarding damages against the defendants including the first defendant. This motion has now been brought by the State Insurance Corporation and the first defendant to have the judgment set aside on the ground that the first defendant was not notified of the hearing and therefore was deprived of an opportunity of being heard. If that is so, the prejudice which the first defendant suffered was aggravated by the fact that findings were made against him.
The State Insurance Corporation were not parties to the action. But they base their application on the authority of Windsor v. Chalcraft [1939] 1 K.B. 279, C.A. that as insurers of the first defendant, they are under a statutory liability to pay the plaintiff the amount of the judgment and therefore were entitled to be heard on such an application. That was a running-down action in which the plaintiff notified the defendant's insurers that he had issued a writ against the defendant. The defendant entered no appearance, and judgment was given against him by default. A summons was taken out for the assessment of damages before a master on which occasion the defendant again made no appearance. No notice was given to the insurers that the writ had been served, or that the case had been set down for trial. They therefore applied to have the case set aside and succeeded. The insurance legislation in England in this respect is not very different from that in this country. Section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), makes the [p.64] insurers liable for the damages and costs awarded against a negligent assured. There is a slight difference in the time within which the insurers should be notified of the proceedings as a condition of their liability. The plaintiff is required in England to notify the insurers of the defendant within seven days of the commencement of the action against the defendant. The requirement in this country is notice within fourteen days of the commencement of the proceedings. The basis of the decision is that as the insurers were under a statutory liability to meet the judgment debt of the assured they were entitled to be heard on an application to set aside a judgment in default. That should apply to the circumstances of the present case as the State Insurance Corporation are under a similar statutor
