Archer v UBS

• Jurisdiction: Cayman Islands
• Judge: (Quin, J.)
• Judgment Date: 23 September 2009
• Court: Grand Court (Cayman Islands)
• Date: 23 September 2009

Grand Court

(Quin, J.)

ARCHER

and

UBS (CAYMAN ISLANDS) LIMITED

H. Hamilton, Q.C., B.E. Frankson and Ms. K. Reid for the plaintiff;

Cases cited:

(1) Allen v. Ebanks, 1998 CILR 190, followed.

(2) Gaca v. Pirelli General Plc, [2004] 1 W.L.R. 2683; [2004] 3 All E.R. 348; [2004] P.I.Q.R. Q5; [2004] EWCA Civ 373, applied.

(3) Hogan v. Bentinck West Hartley Collieries (Owners) Ltd., [1949] 1 All E.R. 588; [1949] L.J.R. 865, dicta of Lords Reid and MacDermott followed.

(4) Iron & Steel Holdings & Realisation Agency v. Compensation Appeal Tribunal, [1966] 1 W.L.R. 480; [1966] 1 All E.R. 769, considered.

(5) Lane v. Laing Constr. Ltd., [2006] C.L.Y. 3163, considered.

(6) McIlgrew v. Devon County Council, [1993] C.L.Y. 1487, considered.

(7) Mahony v. J. Kruschich (Demolitions) Pty. Ltd.UNK(1985), 156 C.L.R. 522; 59 ALJR 504; 59 ALR 722, considered.

(8) Parry v. Cleaver, [1970] A.C. 1; [1969] 2 W.L.R. 821; [1969] 1 All E.R. 555; [1969] 1 Lloyd”s Rep. 183; (1969), 113 Sol. Jo. 147; 6 K.I.R. 265, referred to.

(9) Roberts v. Bettany, [2001] N.P.C. 45; [2001] EWCA Civ 109, considered.

(10) Saunders v. Hammersmith & Fulham London Borough Council, [1998] C.L.Y. 1570, considered.

(11) Webb v. Barclays Bank Plc, [2002] P.I.Q.R. P8; [2001] Lloyd”s Rep. Med. 500; [2001] EWCA Civ 1141, referred to.

Tort-causation-novus actus interveniens-medical treatment-chain of causation not automatically broken by premature medical treatment-only if so grossly negligent to be completely inappropriate response to injury-original injury might carry risk that treatment may be negligently given

Tort-personal injuries-damages-quantification-court to use English case law and guidelines from Judicial Studies Board as starting point with increase to account for higher cost of living in Cayman Islands

Tort-personal injuries-damages-insurance moneys-when assessing plaintiff”s damages, court to deduct any payout received from employer”s insurance scheme if contributions entirely paid for by employer-plaintiff not treated as having contributed merely because scheme organized for his benefit-not entitled to be put in better financial position than if injury had not occurred

The plaintiff brought an action against her employer, the defendant, claiming damages for negligence and, alternatively, for breach of statutory duty owed under the Labour Law (2001 Revision).

The plaintiff slipped on the stairs at her workplace and sustained injuries to her back. She consulted a neurosurgeon about her continuing pain and he carried out a spinal fusion operation. The operation left the plaintiff completely disabled and unable to work, with no likelihood of her condition improving. Her lifestyle was also severely affected by her limited mobility and continual pain which restricted her quality of sleep, ability to exercise and her social life. The defendant had placed the plaintiff on its group disability scheme, the premiums of which were entirely paid for by the company. The plaintiff received regular payments from the scheme which were backdated to the date of her accident.

The plaintiff submitted that (a) the defendant had been negligent in failing to ensure that the staircase was safe by complying with the Standard Building Code for the Cayman Islands and thus breached its common law duty of care to ensure she was reasonably safe in using the premises; (b) it had breached its statutory duty owed to her under the Labour Law; and (c) her medical treatment had been reasonable and did not constitute a novus actus interveniens. The plaintiff sought damages for her pain, suffering and loss of amenities resulting from her accident

(US$300,000) as well as for psychological damage, past and future lost earnings, loss of pension contributions and expenses, including those for medical treatment and home care.

The defendant denied that it had been negligent or in breach of its statutory duty and that, in any case, it was not liable since any continuing injury suffered by the plaintiff was caused and exacerbated by the unnecessary and unjustifiable invasive medical treatment which operated as a novus actus interveniens. The defendant further submitted that (a) the damages claimed were over-estimated on the basis of previous authorities and the relevant guidelines; and (b) any damages for loss of earnings and pension contributions should be reduced to take into account the payments she had received from the disability scheme because she was not entitled to be put into a better financial position than she would have enjoyed had the accident not occurred.

Held, determining that the treatment did not constitute a novus actus interveniens and awarding the plaintiff damages against the defendant:

(1) When considering whether a later act of a third party broke the chain of causation and thus constituted a novus actus interveniens, the court would need to consider whether (i) the intervening conduct of the third party was such as to render the original wrongdoing merely a part of the history of the events; (ii) the third party”s conduct was deliberate or wholly unreasonable; (iii) the intervention was foreseeable; and (iv) the conduct of the third party was wholly independent of the defendant. Medical treatment, even if premature, did not automatically break the chain of causation and would only do so when it was so grossly negligent to be a completely inappropriate response to the injury. Moreover, the original injury might also be regarded as carrying some risk that the treatment might be negligently given. The plaintiff here had acted reasonably in accepting the treatment of the surgeon and this had been reasonably foreseeable to the defendant, whose agents had been fully informed of the treatment she was receiving. The surgeon”s conduct was not deliberate or unreasonable and his conduct was not such as to render the original wrongdoing merely a part of the history of events. The doctor was therefore not guilty of gross negligence and his operation on the plaintiff did not constitute a novus actus interveniens. Since the defendant was negligent and in breach of its statutory obligations for failing to ensure its staircase complied with the Standard Building Code and the treatment of the doctor did not constitute a novus actus interveniens, the plaintiff would be awarded damages for her injuries (para. 11; paras. 36–45).

(2) When assessing damages for pain, suffering and loss of amenities, the court would use the English case law and the guidelines from the Judicial Studies Board as a starting point with an increase to account for the higher cost of living in the Cayman Islands because of the absence of an income tax. Having reviewed the authorities in the context of the plaintiff”s case, she would be awarded CI$65,000 as damages for pain, suffering and loss of amenities (para. 52).

(3) When calculating the damages, the court would have to deduct any income she had received from her employer”s disability scheme because damages were meant to be compensatory and she could not be put into a better position than had the accident not occurred. The essential factor in determining if these payouts would be deducted was whether the premium had been paid for by the claimant. Contribution would not be inferred from the fact that the employer had arranged the insurance for the benefit of the plaintiff. Since the contributions had been entirely paid for by the defendant, the payouts from the scheme would fall to be deducted from her damages for loss of earnings and further deductions would be made from her damages for lost future earnings to account for the pension contributions she would have had to make (paras. 57–59; paras. 65–66).

(4) Moreover, in the absence of actuarial tables specific to the Cayman Islands, the court would rely on the Ogden Tables to determine the appropriate multiplier to calculate future lost earnings-in this case, the appropriate multiplier for a 48-year old female with a pension age of 60 was determined as 10.22. The plaintiff was also awarded the costs of home care, medical treatment and a variety of other miscellaneous expenses, though not for pension contributions which were covered by the disability scheme, to make the total award nearly CI$350,000 (paras. 61–62; paras. 68–69; paras. 78–79).

N.P. Dunne for the defendant.

1 QUIN, J.: On July 11th, 2003, the plaintiff, Mrs. Brenda Archer, issued a writ of summons, the endorsement to which stated that-

‘the plaintiff”s claim is (a) as a former employee under a written contract of employment and an acceptance and release with the defendant, UBS (Cayman Islands) Ltd., dated July 9th, 1987 and April 25th, 2002, respectively, for damages for negligence on the part of the defendant as employer, owner and occupier of the premises known as UBS House, 227 Elgin Avenue, Grand Cayman [herein after referred to as “the premises”], where the plaintiff worked, for failing to take reasonable care to make the premises as safe as reasonable care and skill could have made them; (b) for damages for personal injury and consequential loss and/or damages suffered by the plaintiff on July 13th, 2000 when, whilst at work, she slipped and fell while walking down an uncovered cement staircase at the premises owned and occupied by the defendant; (c) in the alternative, for damages for breach of statutory duty imposed on the defendant by ss. 58 and 60(d) of the Labour Law (2001 Revision) in failing to ensure so far as is reasonably practicable the health, safety and welfare at the workplace of the employee-the said Brenda J. Archer.’

2 On July 25th, 2005, the plaintiff filed her statement of claim in which she claimed damages for injuries, loss and damage by reason of the breach of statutory duty owed by the defendant to the plaintiff, pursuant to ss. 58 and 60(d) of the Labour Law, and by reason of the negligence of the defendant, its servants or agents.

3 The particulars of...