Charles McCoy Plaintiff v (1) Cayman Islands Health Services Authority (2) DR. JHA Defendants
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Panton |
| Judgment Date | 06 September 2013 |
| Judgment citation (vLex) | [2013] CIGC J0906-1 |
| Docket Number | CAUSE NO. G2/13 |
| Court | Grand Court (Cayman Islands) |
| Date | 06 September 2013 |
Mr. Justice Panton (Acting)
This is a two-pronged application by the second Defendant (Dr. Jha) to strike out the Writ and the Statement of Claim herein. Firstly, the Applicant seeks an order pursuant to Order 18 rule 19(1)(a), (c) and/or (d) of the Grand Court Rules (GCR), that the Statement of Claim discloses no reasonable cause of action, is frivolous or vexatious, and/or is an abuse of the process of the Court. Alternatively, Dr. Jha seeks a determination under Order 14A of the Grand Court Rules that the claim is barred by virtue of the provisions of Section 12 of the Health Services Authority Law (2010 Revision).
At this point, it may be noted that although the application was thus framed, Counsel for Dr. Jha concentrated his efforts on the alternative order sought — that is, on Section 12 of the Health Services Authority Law. Indeed, he said it was the main plank of his application. I hope I do no disservice to Counsel's submissions by saying that the application under Order 18 r. 19 became the alternative.
In an application to strike out a pleading, the Court is not concerned with the evidence. The court has to assume the truth of the facts contained in the pleading, and then make a determination as to whether that pleading has a reasonable prospect of succeeding:TCB v Arthur Anderson (2008) CILR 486.
In the instant case, the pleading is the Statement of Claim, to which it is now necessary to turn. The endorsement to the Writ reads:
‘The Plaintiff claims against the Defendants to recover damages for negligence in that the Second Defendant, an employee/servant or agent of the First Defendant, failed to undertake the proper diagnostic methods and negligently did not treat the Plaintiff appropriately, rendering services well below the proper standard of care required of him on or about March 2007 and continued to not treat the Plaintiff appropriately until 2008’.
On 9 April 2013, the Plaintiff filed a claim in negligence against the Health Services Authority and Dr. Jha. The Plaintiff claims that in or about March 2007, that is, six years ago, he attended at the office of Dr. Jha, an employee of the Authority, and complained of shortness of breath. Dr. Jha examined him and advised him to have and x-ray of his chest done. He complied, and Dr. Jha examined the x-ray and informed him that his chest was normal, and sent him home.
The Plaintiff suspected that he was being adversely affected by mould at his workplace, and bought a filter on 16 March 2007. He then went to see Dr. Mohanty who referred him to Melissa Shaw, a respiratory therapist.
On 5 May 2008. the Plaintiff told Dr. Jha that he believed ‘the respiratory systems were related to mould’. Dr. Jha ordered a ‘Rhast Panel’ blood test for the Plaintiff, and told him he would get in touch with him if anything was wrong. Dr. Jha did not communicate the result of the test, but the Plaintiff ascertained the result from another source. It showed that the Plaintiff was being affected by mould at the workplace. On 5 July 2008. the Plaintiff was attended to a Dr. Fiona Robertson who prescribed ‘some allergy medicine’.
The Chief Medical Officer, at the request of Dr. Mohanty, referred the Plaintiff to Mt. Sinai Hospital where he was diagnosed with bronchopulmonary aspergilliosis.
The Plaintiff alleges that Dr. Jha ‘was negligent in his duty of care and not communicating to the Plaintiff as to the test results and not referring the Plaintiff to a Specialist’.
The Plaintiff claims not only that Dr. Jha failed to diagnose his illness but also that Dr. Jha and the Health Services Authority's ‘servants and employees’ by their negligence caused his illness.
Mr. Keeble submitted that Section 12 of the Health Services Authority Law exempts employees of the Authority from liability in damages for their actions or omissions unless it can be proven that the action or omission was in bad faith. There is no allegation of bad faith in the Statement of Claim; hence, Dr. Jha's actions cannot be the subject of a claim, Mr. Keeble submitted. The section, he said, provides a complete defence.
The prerequisites under Order 14A((1) have been met, accordingly to Mr. Keeble. The question is suitable for determination without a full trial, and such determination will finally dispose of the entire action.
The Health Services Authority incontrovertibly provided health care to the Plaintiff in the exercise of its statutory duties, through its employee, Dr. Jha, and there are no other necessary or material facts in issue, said Mr. Keeble. He said also that it was worthy of note that there were other substantial identical statutory exemptions from liability for acts or omissions of the Cayman Islands Government agencies, servants and employees in respect of the discharge of their functions, save where ‘bad faith’ is shown. In this regard, he listed eleven such statutes.
As regards the application under Order 18 rule 19, Mr. Keeble submitted that the stated particulars fail to make out a cause of action in that there is nothing to indicate negligence on the part of Dr. Jha.
The response of Mr. Phillip Ebanks, Counsel for the Plaintiff, is as follows: Section 12 of the Health Services Authority Law does not prevent persons from suing the Authority or its employees in negligence. ‘Bad faith’, he said, is a matter of evidence, and by pleading ‘negligence’, the question of ‘bad faith’ becomes a live issue. He referred the Court to Lord Steyn's Judgment inThree Rivers DC v. Bank of England (No. 3) (2003) 2 AC 1, and to Goodman v. Harvey (1836) 4 A & E 870. In citing these cases, Mr. Ebanks submitted that gross negligence may be evidence of bad faith.
Mr. Ebanks submitted that striking out a pleading was a severe measure that should be done with extreme caution. ‘The development of the common law’, he said, ‘requires a reluctance to strike out an action’.
Order 14A rule 1 reads thus:
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‘(1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that —
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(a) such question is suitable for determination without a full trial of the action; and
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(b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein.
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(2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.
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(3) The Court shall not determine any question under this Order unless the parties have either —
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(a) had the opportunity of being heard on the question; or
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(b) consented to an order or judgment on such determination.
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(4) Nothing in this Order shall limit the powers of this Court under Order 18, rule 19 or any other provision of these Rules.’
Section 12 of the Health Services Authority Law reads thus:
‘Neither the Authority, nor any director or employee of the Authority, nor any Committee member, shall be liable in damages for anything done or omitted in the discharge of their respective functions or duties unless it is shown that the act or omission was in bad faith’.
It is well settled principle in the interpretation of statutes that unless a...
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