Donette Thompson (A minor, suing by her mother and next friend, Norene Thompson) v (1) The Cayman Islands Health Services Authority
| Jurisdiction | Cayman Islands |
| Judge | Richard Williams |
| Judgment Date | 24 April 2017 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 190 OF 2013 |
| Date | 24 April 2017 |
and
Hon. Justice Richard Williams
CAUSE NO. 190 OF 2013
THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Mr. Jonathan A.D. Jones Q.C. instructed by Ms. Kim Grandage of Samson & McGrath for the Plaintiff
Mr. Paul Bowen Q.C. instructed by Michael Wingrave of Dinner Martin for the First Defendant
Mr. Paul Bowen Q.C. instructed by Mr. Zachary Hoskin of Mourant Ozannes for the Second Defendant
Mr. Samuel Bulgin Q.C., Attorney General of the Cayman Islands and Ms. Reshma Sharma, Deputy Solicitor General andMs. Rachael Hoare, Crown Counsel for the Intervener
1. This case has raised a significant number of novel legal issues which have not hitherto been considered by the Grand Court in the Cayman Islands. In fact, this may be the first time that a Court in any jurisdiction has had to consider the lawfulness of a statutory provision removing access to civil proceedings in respect of all claims for clinical negligence. Queen's Counsels have expertly assisted this Court by their comprehensive and prodigious oral submissions at the hearings and their opening written submissions covering a very wide range of complex issues. They have carried out an in depth analysis of a significant amount of case law. With this in mind, this judgment will be more detailed than one might have wished and it contains a fuller analysis of a number of cases than one might ordinarily expect.
2. The detailed background to this matter is set out in a comprehensive judgment delivered by this Court on 19 February 2016 (“the Judgment”). I have regard to the content of the Judgment and, although I do not intend to again fully rehearse the same, I feel it helpful to repeat some of the background detail contained therein to put the issues now requiring my determination into context.
3. Donette Thompson (“P”), aged 11, was born on 9 July 2005 at the George Town Hospital (“the Hospital”). The Hospital is maintained and operated by the First Defendant, the Cayman Islands Health Services Authority (“the Authority”).
4. The Second Defendant, Dr. Gilbertha Alexander, was the attending Consultant Obstetrician at P's birth and was an employee of the Authority under a contract of employment dated 11 February 2005. It is agreed that at all material times, the Authority was responsible for the general management of the hospital and the nursing and midwifery care therein.
5. On 26 June 2015, the Attorney General's Chambers confirmed in writing to P that he did not intend to intervene in the proceedings at that stage. The Attorney General played no role at the June/July 2015 hearing. The Attorney General now intervenes pursuant to my order dated 26 June 2016.
6. Norene Thompson is P's mother and next friend. These proceedings were commenced by her Writ of Summons and Statement of Claim filed on 7 June 2013. P sues in respect of her injuries suffered at her birth1 which she alleges in her Amended Statement of Claim were caused by the negligence of staff employed by the Authority, including Dr. Alexander who all owed her a “duty of care to provide reasonably competent medical care.” P's allegations of negligence2 against the Authority's clinicians and Dr. Alexander include:
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a. Failing to respond to a pathological CTG;
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b. Failing to appreciate the urgency of the situation by failing to perform an emergency caesarean section within 30 minutes;
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c. Delivering P with undue force;
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d. Failing to communicate properly with the rest of the medical team so all Parties were aware of the urgency of the situation; and
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e. Failing to perform the Caesarean Section within 30 minutes of the decision at 4:55PM.
7. It is alleged that the Authority is either vicariously liable for the negligent acts and omissions of its servants or agents, including Dr. Alexander, alternatively it is directly liable for those acts of negligence under a non-delegable duty of care. It is claimed that Dr. Alexander is personally liable for failing to provide competent medical care to P.
8. In the alternative, P requested at the earlier hearing that, if the Court were to determine that s.12 of the Health Services Law (2003 Revision) as amended by the Health Services Authority (Amendment) Law 2004 (“s.12”) provides the Defendants with immunity, then “as a last resort” the Court should make a declaration of incompatibility pursuant to s.23 of Part 1, Bill of Rights, Freedoms and Responsibilities, of the Cayman Islands Constitution Order 2009 (“the BOR”). The BOR came into force on 6 November 2012, three years after the appointed day3 and s.23 BOR provides:
“If in any legal proceedings primary legislation4 is found to be incompatible with this Part, the court must make a declaration recording that the legislation is incompatible with the relevant
section or sections of the Bill of Rights and the nature of that incompatibility.”
9. The Authority filed its Defence on 11 July 2013. Dr. Alexander filed her Defence on 30 July 2013.
10. On 20 October 2014 P's attorneys wrote to the Attorney General stating that if the Court were to find that s.12 provided such immunity, then the Court would be asked to make a declaration of incompatibility. They informed the Attorney General of their view that a “blanket immunity” from claims for clinical negligence would amount to a breach of the rights contained in sections 2, 3, 8 and 17 of the BOR.
11. On 26 November 2014, at a directions hearing before Hall J., the Court and the parties defined the terms of the preliminary issues to be determined as follows:
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a) Whether s.12 provides a defence to claims for damages for personal injuries caused by the negligence of the Defendants, unless it is shown that the acts or omissions of the Defendants were in bad faith; alternatively
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b) Whether s.12 must be read and given effect under s.25 of the BOR in a manner that is compatible, so far as it is possible to do so, with P's rights under the BOR and if so, how; alternatively,
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c) Whether a declaration of incompatibility should be made under s.23 of the BOR.
12. P, pursuant to Hall J.'s directions order, filed her Amended Statement of Claim on 9 February 2015. At paragraph 15.2 P plead that in the alternative:
“In so far as the Court determines that section 12 applies to the Plaintiff's claim to damages herein (which is denied), the Plaintiff will seek a declaration that the section is incompatible with Part 1, Bill of Rights, Freedoms and Responsibilities, of the Cayman Islands Constitution Order 2009 and in particular:
a. Section 2: Life
b. Section 3: Torture and inhumane treatment
c. Section 7: Fair trial
d. Section 9: Private and family life
e. Section 17: Protection of children
pursuant to section 23 of the said Order.”
13. On 3 July 2015, leave was given to the Defendants to amend their Defence in the form shown to the Court and to file the same by 14 July 2015. The Authority filed its Amended Defence on 11 July 2015. Dr. Alexander filed her Amended Defence on 10 July 2015.
14. In its Amended Defence the Authority denies that it, its servants or agents were negligent and it withdrew its admission that it owed a duty of care to P by reason of s.12. Dr. Alexander similarly denies that she was negligent or that she owed a duty of care to P.
15. At the hearing I did not accept P's submission that the Court should be applying s.12 of the Health Services Authority Law 2012.6 I found that the Health Services Law (2003 Revision), as amended by the HSAL 2004, was the applicable version of the HSAL as it was the version of the Law that was in force at the time of P's birth. I was satisfied that the preliminary issue for determination at the hearing concerned the Defendants' pleaded Defence that P's claim was barred by s.12, which provides that:
“Neither the Authority, nor any director or employee of the Authority, shall be liable in damages for anything done or omitted the discharge of their respective functions or duties unless it is shown that the act or omission was in bad faith.”
16. In the Judgment I ruled on the first preliminary issue, namely whether s.12 excluded the Defendants from any liability in negligence in respect to P's injuries. I reached the same conclusion as Panton J. did in Charles McCoy v Cayman Islands Health Services Authority & Dr Jha Cause no. G2/137, namely that the wording of s.12 was clear and unambiguous and, in the absence of bad faith, the section excluded liability in negligence. This clear and unambiguous exclusion from liability in the section restricted the scope to read and give the section effect under s.25 (1) BOR8 which provides that:
“In any case where the compatibility of primary or subordinate legislation with the Bill of Rights is unclear or ambiguous 9, such legislation must, so far as it is possible to do so, be read and given effect in a way which is compatible with the rights set out in this Part.”
The reasons for my decision are contained in the detailed Judgment and it is not necessary to set them out again herein.
17. Part 3 of the Preliminary Issue required determination as to whether s.12 infringed P's rights under ss. 2, 3, 7, 9 and/or 17 of the BOR. P contended that s.12 as interpreted by the Defendants (and now by this Court) is incompatible with the above rights. She contends that the consequences are:
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(i) she will be unable to bring a civil claim against the Defendants;
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(ii) she will not be able to establish civil liability for injuries;
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(iii) she will not be...
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