Miguel Angel Gomez Martinez Plaintiff v The Proprietors, Strata Plan No. 46 (Plantation Village) Defendant
| Jurisdiction | Cayman Islands |
| Judge | The Hon. Anthony Smellie |
| Judgment Date | 29 July 2013 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 320 OF 2007 |
| Date | 29 July 2013 |
The Hon. Anthony Smellie, CHIEF JUSTICE
In Chambers
The Defendant brings this application for an order striking out the Plaintiff's claim on the ground of inordinate and inexcusable delay in the prosecution of the claim.
The claim is one by which the Plaintiff seeks compensation for ongoing medical costs and expenses incurred as the result of the Defendant's failure to secure health insurance for him while he was in its employment and, he also claims, as required by the Health Insurance Law (‘the Law’).
It appears from his pleadings that the Plaintiff started employment with the Defendant on 9th August 2002. He was engaged to carry out general janitorial tasks at Plantation Village with responsibility for maintenance and repair of the grounds and equipment.
He states that when he commenced employment with the Defendant he can recall having signed documentation for his employment but was not given copies.
A Mr. Jim Fraser was the manager of the Defendant at the time and, as far as he Plaintiff knew and recalls, had full authority to make representations to him on behalf of the Defendant.
The Plaintiff's understanding from Mr. Fraser was that, in keeping with the Law, the Defendant would obtain health insurance for him (as was provided for any other employee) and would pay its portion of the premium and the portion that he should contribute would be deducted from his salary.
He recalls filling out a health insurance application form with the assistance of Mr. Fraser (English not being his first language — as a native of Cuba). This application was in a small booklet format and was returned to the Defendant but again, he was not provided with a copy.
His understanding was that thereafter the Defendant made regular deductions from his salary by way of his contributions to his health insurance premium, as it did for contributions to the pension scheme also mandated by law for all workers in the Cayman Islands. Although he could not read English, he saw on his pay slip that there were two deductions from his salary each month and so assumed that these were the deductions required for pension and health insurance. He tenders six of his pay slips in evidence. He now appreciates that they show confusingly from his point of view, that both deductions are described as pension contributions (while there was only ever one pension plan) but no explicit reference to health insurance.
Repeated requests from his former attorneys to the Defendant's attorneys for disclosure or explanation of what became of his salary deductions have gone unanswered, as have requests for disclosure of the insurance policies the Defendant should be expected to have had in place at the relevant times.
These times include occasions in October 2003 when the Plaintiff attended at the George Town Hospital for treatment and when he informed the Hospital staff that he was covered (as he said he then believed) by the insurance provided by his employer the Defendant.
On 7th May 2004, the Plaintiff, then 46 years old, suffered a heart attack whilst at work. This was the first of a number of infarcts. He was told on that first occasion that he required urgent overseas treatment. Arrangements were being made for him to be airlifted to Houston, Texas, when it was discovered that he was not covered by any health insurance plan. It was, to his dismay, explained at the Hospital overseas referrals office that he would have to pay for the necessary surgery and for the treatment he had already received.
As he knew that he could not afford to pay for the treatment he then urgently needed in Houston, he at that stage feared for his life. He made desperate enquiries with the National Health Insurance Commission, the Labour Board, the Cayman Islands National Insurance Company (‘CINICO’), the Government Social Services Department and with the Defendant, seeking funding. He hoped, at least, to have the necessary operation, if not in Houston, then in Cuba where it would be less expensive.
After the intervention of the Labour Board, the Defendant agreed to provide USD 14,585 to cover the costs of treatment at the Institute of Cardiology and Cardiovascular Surgery in Cuba.
The Plaintiff says that he took this as an acknowledgement of responsibility for his coverage on the part of the Defendant but this assumption was falsified by itssubsequent refusal to provide further funding and ultimately, by the filing of its Defence in this action.
Subsequent provision of coverage for him by CINICO has become the subject of a promissory note for repayment, a liability that has grown significantly and continues to grow, as the Plaintiff continues to require and undergo surgery and other treatment. It is a liability for which he also claims indemnity from the Defendant.
It is also a part of the Plaintiff's case that had insurance coverage been in place from the outset as it should have been, he would have once and for all received the comprehensive treatment that his condition required and the need for subsequent surgical interventions would have been avoided. The permanent impact of his illness upon his health — said now to have rendered him unemployable and uninsurable — would have been avoided. This gives rise to his claim for general as well as special damages, the latter to include past as well as future costs of medical treatment.
In direct response to the Defendant's strike out application, Mr. Allen argues on his behalf that the debilitating impact of his illness — diagnosed as coronary heart disease and hypertension — and the several episodes of surgery and other treatment, have hampered and delayed the prosecution of his claim.
Apart from that excuse for the delay, Mr. Allen also argued that the Defendant has itself contributed to the delay by its refusal to disclose the insurance policy (and any other related documentation) that was in place at the time when the Plaintiff was in its employment. These documents, he submits, would likely put the lie to the Defence — which is that the Plaintiff, uniquely and peculiarly among its employees — failed to provide the necessary information to the Defendant and opted instead to obtain hisown insurance coverage. That, says the Defendant, explains the failure to disclose the insurance policy — one does not and never existed in respect of the Plaintiff.
On behalf of the Defendant, Mr. Dunne argues that the onus that has rested throughout upon the Plaintiff to advance his claim in a timely fashion has been entirely ignored by the Plaintiff. No alleged failure of disclosure on the part of the Defendant can excuse such inordinate delay. The Grand Court Rules provide a mechanism for compelling a party to meet its disclosure obligations and the Plaintiff could have invoked those rules if it was serious about prosecuting its claim. Alleged failure on the part of the Defendant to give disclosure can therefore provide no excuse for the inordinate delay.
There plainly has been inordinate delay in the prosecution of this claim, as revealed by the chronology set out in the table following:
| DATE | ACTION |
| 27 July 2007 | Writ Issued |
| 1 August 2007 | Writ served |
| 14 August 2007 | Defence filed |
| 23 August 2007 | Reply filed |
| October/November 2007 | Correspondence between parties re medical records |
| January 2008 | Written authority to obtain Medical Records from doctors given to Defendant by Plaintiff |
| 13 March 2008 | Notice of Intention to Proceed issued by Plaintiff |
| 12 October 2009 | Second Notice of Intention to proceed issued |
| December 2010 | Interim payment requested by Plaintiff but refused by Defendant |
| 21 December 2011 | Mr. Allen comes onto the record for the Plaintiff in place of Mourant Ozannes |
| January 2012 | Interim payment again requested and refused |
| 24 January 2012 | Third Notice of Intention to Proceed |
| 19 February 2013 | Defendant issues summons seeking dismissal for want of prosecution |
In short, says Mr. Dunne, this action was commenced almost six years ago (on 27th July 2007), during which time the Plaintiff has failed to progress the matters beyond the stage of pleadings. Worse, it has been nine years since the realization of his cause of action if, as the Plaintiff asserts, he became aware on 7th May 2004 that he was uninsured.
Such delay, says Mr. Dune, is both inordinate and inexcusable within the meaning of the case law and the Grand Court Rules (‘GCR’). It will also result in serious prejudice to the Defendant if the case is allowed to proceed because it is to be inferred that the ‘memories of its witnesses’– their ability to recall crucial conversations engaged in when the Plaintiff was recruited in September 2002, would have faded. The case law does recognize that such an inference may be drawn. See for exampleCranston v Mothersill and Mothersill 2004–05 CILR 417 and Benoit v Hackney LBC, unreported, Feb. 11, 1991 CA Transcript No. 91/0116 the latter of which is noted in the Hong Kong Civil Procedure Code 2012 Edition (at 25/L/7) as having decided that:
‘In a case of prolonged culpable delay following long delays in serving of proceedings, the court may readily infer that memories and reliability of witnesses has further deteriorated in the period of culpable delay.’
That period here, says Mr. Dunne, has been the six years since the issuance of the writ which came three years after the realization of the cause of action. He cites another risk of prejudice — that which he says has arisen from the claim having been swollen by the accumulation of interest on the sum of the medical bills in the meantime...
To continue reading
Request your trial