Bilika Harry Simamba v Cayman Islands Health Services Authority
| Jurisdiction | Cayman Islands |
| Judge | Kawaley |
| Judgment Date | 17 June 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 32 OF 2014 |
The Hon. Justice Kawaley
CAUSE NO. 32 OF 2014
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Defendant's application to strike-out or obtain summary judgment on plaintiff's medical negligence claim-GCR Order 14 rule 12-GCR Order 14 rule 12—Health Services Law (2010 Revision) section 12—effect of statutory immunity from suit clause-whether immunity clause inoperative for inconsistency with Bill of Rights in Cayman Islands Constitution Order-judicial precedent-effect of previous decisions of courts of coordinate jurisdiction-sufficiency of expert evidence-whether discretion to strike-out should be exercised before trial-whether further opportunity to cure evidential deficiencies should be granted
The Plaintiff appeared in person
Mr Michael Wingrave of Dentons for the Defendant
The Plaintiff commenced the present action by a Writ of Summons filed with a Statement of Claim on March 6, 2014. He asserted two claims alleging medical negligence on the Defendant's part, described in his pleading as the “Medical Case” and the “Dental Case”, respectively. In a nutshell, the two limbs of the Plaintiff's case may be summarised as follows:
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(a) the Medical Case: the Urologists employed by the Defendant who treated the Plaintiff for a prostrate-related illness negligently prescribed a drug without warning the Plaintiff of adverse side-effects, causing him damage;
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(b) the Dental Case: the Dentists employed by the Defendant who treated him in relation to a cavity treated him negligently resulting in pain and suffering and the avoidable loss of a tooth.
The Defence dated May 30, 2014 admitted the existence of a duty of care to the Plaintiff in respect of each case but made no admissions as to its content or scope. On July 30, 2015, the Plaintiff filed a Summons for Directions. By a Summons dated September 2, 2015, the Defendant sought Orders that:
“1. That the Plaintiff's claim be struck out pursuant to Ord. 14, r.12 of the Grand Court Rules;
2. Alternatively, that the Plaintiff's claim be struck out as an abuse of process pursuant to Ord. 18, r.19 of the Grand Court Rules;
3. In the further alternative, if not struck out, that the Plaintiff amend his Statement of Case to bring it into compliance with the Medical Negligence (Non-Economic Damages) Law 2011…”
The Defendant's Summons was supported by the First Affidavit of Dominika Chrachalova sworn on September 2, 2015, and supported the case for striking-out the Plaintiff's claim on the primary ground that the Plaintiff had in correspondence indicated that he did not intend to adduce further expert medical evidence in support of his claims. Reference was also made to the fact that the Plaintiff claimed damages at the level of $1.7 million despite the Medical Negligence (Non-Economic Damages) Law 2011 limited liability for non-economic loss to CI$500,000.
Before the Defendant's Summons was heard, the implications of section 12 of the Health Services Law as a bar to medical negligence claims against the Defendant was comprehensively addressed by Williams J in Thompson v HSA & Alexander [ 2016 (1) CILR 93], and in Thompson v HSA & Alexander [ 2017 (1) CILR 441] the Bill of Rights implications of the immunity clause were also extensively addressed. Mangatal J sensibly awaited an expected appeal in the Thompson case which would have potentially resolved the immunity issue through a binding decision of the Cayman Islands Court of Appeal. When the appeal in Thompson was discontinued following a settlement, the Defendant's Summons (and the Plaintiff's Summons for Directions), were both revived.
The Plaintiff is a former Cayman Islands Government lawyer who is a resident of the Cayman Islands but has been in Canada since late last year due to medical and family reasons. As a litigant in person he has unsurprisingly not always been able to conduct his case in an entirely dispassionate and objective fashion. The Court accommodated his request to participate in a short case management hearing via video-link, which hearing took place on January 9, 2019. He was abroad and it seemed obvious that requiring his personal attendance at a perfunctory hearing would be disproportionate in terms of the expense he would incur in travelling from Canada. How the Plaintiff would participate in the two-day hearing of the Defendant's Summons was not expressly addressed by the parties or by the Court. Shortly before the hearing fixed for May 6, 2019 with no directions having been given to exempt the Plaintiff from the usual requirement of personal appearance in Court, the Plaintiff formally requested permission to participate remotely.
I declined that request and decided to deal with the Defendant's Summons primarily on the basis of the detailed written submissions filed by the parties. No special reasons were advanced by the Plaintiff to justify the Court taking the unusual course of permitting a party to civil proceedings to participate remotely in circumstances where they are not even represented by counsel before the Court. The Grand Court rules “GCR”) do not contemplate such participation although the Court undoubtedly possesses the inherent jurisdiction to facilitate access to justice by permitting remote participation where declining to do so would effectively nullify access to the Court altogether. Unexpected illness, inability to travel and impecuniosity are the most obvious grounds likely to require the Court to consider permitting remote participation where an adjournment would not be appropriate. In the present case, no administrative arrangements had been made for a video-conference hearing and it was not practicable to do so in any event.
In my judgment, when a litigant fails without good cause to attend a scheduled hearing without having obtained directions to participate remotely from the Court, the Court may in its discretion proceed by default. Instead of treating the Plaintiff as having failed to appear in opposition to the Defendant's application and granting it on an unopposed basis, I decided to deal with the case primarily on the papers. This would ordinarily be a course which would only be adopted on a consensual basis as regards the deciding the merits of a contested application. Nevertheless, I considered that as the application turned primarily on points of law and detailed written arguments had been submitted on both sides, a full oral hearing was not required. The Plaintiff, after all, made it clear in email correspondence with the Court that his primary interest was in the case proceeding rather than being adjourned.
The May 6, 2019 hearing listed in Chambers for two days was consequentially curtailed and lasted for only half an hour. The hearing was recorded and a digital copy of the hearing record was forwarded to the Plaintiff who requested an opportunity to address matters arising from the hearing via video-link. I declined to convene a further hearing until the Plaintiff identified the matters he wished to address. In the event he received the audio recording on May 21, 2019 and requested and was granted until May 28, 2019 to file supplementary submissions. He emailed the Court ‘The Plaintiff's 3 rd Skeleton Arguments’ in which, inter alia, he complained that hearing he had failed to attend was unfair and reiterated his request for an oral hearing by video-link. The Plaintiff was advised that he had no right to a remote hearing but that if he explained why he was unable to appear in person for the scheduled hearing, I would consider directing a half-hour hearing to afford him equal time to address the Court via video-link to afford him the same period of time the Defendant's counsel had been given on May 6, 2019.
In the event, I was persuaded that the Plaintiff did not appreciate that a formal application was required to exempt him from the usual requirements of attending the scheduled hearing. In all the circumstances of the present case I felt that the Plaintiff had not appreciated that his attendance was required and that I could myself have avoided any misunderstanding by expressly raising the mode of his attendance at the directions hearing. The second hearing eventually took place on June 3, 2019 and lasted for over one hour.
The principles governing the Court's discretionary jurisdiction to strike-out cases before trial on the grounds that further prosecution of the claim would amount to an abuse of process because the claim is bound to fail are well settled. A civil litigant has a right of access to the Court but no absolute right to take his case to trial. A defendant has a fair hearing right not to be forced to defend at trial a case which is it is possible to determine at the interlocutory stage is bound to fail because it is plain and obvious that the claimant will not be able to prove his case at trial. Before considering the strikeout jurisdiction, it is important to remember that the Court now has a positive duty to actively manage cases with a view to achieving the overriding objective.
The Preamble to GCR firstly defines the Overriding Objective as follows:
“1.1 The overriding objective of these Rules to enable the Court to deal with every cause or matter in a just, expeditious and economical way.
1.2 Dealing with a cause or matter justly includes, so far as is practicable—
(a) ensuring that the substantive law is effective and carried out;
(b) ensuring that the normal advancement of proceedings is facilitated and rather than delayed;
(c) saving expense;
(d) dealing with the...
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