Simamba v Health Services Authority

• Jurisdiction: Cayman Islands
• Judge: (Kawaley, J.)
• Judgment Date: 17 June 2019
• Court: Grand Court (Cayman Islands)
• Date: 17 June 2019

SIMAMBA

and

HEALTH SERVICES AUTHORITY

(Kawaley, J.)

Grand Court, Civil Division (Cayman Islands)

Civil Procedure — judgments and orders — summary judgment — defendant to establish under GCR O.14, r.12 that plaintiff has no realistic (as opposed to fanciful) prospect of success — plaintiff granted final opportunity to adduce expert evidence to support medical negligence claim

Held, ordering as follows:

(1) The principles governing the court’s discretionary jurisdiction to strike out cases before trial on the ground that further prosecution of the claim would amount to an abuse of process because the claim was bound to fail were well settled. A civil litigant had a right of access to the court but no absolute right to take his case to trial. A defendant had a fair hearing right not to be forced to defend at trial a case which it was possible to determine at the interlocutory stage was bound to fail because it was plain and obvious that the claimant would not be able to prove his case at trial. When considering a strike-out application, it was important to remember that the court had a positive duty to actively manage cases to achieve the overriding objective set out in the Preamble to the Grand Court Rules, namely to enable the court to deal with every cause or matter in a just, expeditious and economical way. Parties had a duty to help the court to further the overriding objective (paras. 10–14).

(2) Where an application was made to strike out under GCR O.18, r.19(1)(a) on the grounds that the pleadings disclosed no reasonable cause of action, no evidence was admissible and the pleaded facts were presumed to be true. The present application, however, to the extent that it relied on the absence of expert evidence, was not an application under O.18, r.19. The “doomed to fail” ground clearly relied on either O.18, r.19(1)(b) (that the claim was frivolous) or r.19(1)(d) (that the claim was bound to fail and therefore an abuse of process). There was no question of assuming the plaintiff’s pleaded case to be true in relation to the lack of expert evidence. The argument that the defendant was immune from suit under s.12 of the Health Services Authority Law (2010 Revision) was a pure point of law which fell within O.18, r.19(1)(a) and should be approached on the basis that no evidence was admissible and all factual matters pleaded by the plaintiff were true. Further, the discretionary jurisdiction to strike out a case before trial should only be exercised in “plain and obvious” cases (paras. 16–18).

(3) In considering under O.14, r.12 whether to dismiss a plaintiff’s claim on the ground that it had no prospect of success or that the plaintiff had no prospect of recovering more than nominal damages, and enter judgment for the defendant, the test which the defendant had to meet was to establish that the plaintiff had no “realistic” as opposed to a “fanciful” prospect of success. The standard of proof that the defendant was required to meet was somewhat lower than the threshold required to justify striking out. A “merits” strike-out application could only succeed if the defendant demonstrated not just that the plaintiff had no realistic prospect of success but also that it was “plain and obvious” that the plaintiff’s case was boundto fail. In the present case, the critical question on the expert evidence point was not simply whether or not there was a prospect of success based on a summary appraisal of the evidence. The plaintiff argued that if the absence of expert evidence at this stage was fatal to his case, he should be afforded an opportunity to produce the requisite evidence. The court was required to assess not simply the prospects of success based on the present evidential lacuna but also the prospects of the plaintiff being able to adduce the requisite evidence before trial. It was a serious step to grant summary judgment against a claimant who was appearing in person, which should only be taken if clearly appropriate. If the court was not satisfied that there was no realistic prospect of success but merely doubtful about the claimant’s prospects of succeeding, an intermediate case management order should be made rather than finally shutting out the claimant from the seat of justice (paras. 21–27).

(4) It was plain and obvious that the plaintiff’s case was bound to fail without expert evidence from a urologist and a dental surgeon. In the absence of expert evidence, the case was obviously and almost incontestably bad. The court accepted the defendant’s submissions that (a) expert evidence was required to prove that a duty of care to the plaintiff was breached because the treatment he had received fell below a standard of practice regard as proper by a reasonable body of relevant professionals; (b) expert evidence was required to prove that the risks to which the plaintiff complained he was exposed were the sort of risks of which a reasonable urologist should have warned him; and (c) expert evidence was required to prove that the injuries of which the plaintiff complained were to the requisite extent caused by the defendant’s alleged negligence. It was not sufficient to rely on expert evidence from another discipline (pharmacology) or on the doctrine of res ipsa loquitur. The defendant had therefore established that, based on the material presently before the court, the plaintiff had no realistic prospect of success so that the claim was liable to be dismissed under GCR O.14, r.12 or struck out under GCR O.18, r.19 (paras. 43–48).

(5) The plaintiff would be afforded an opportunity to adduce the expert evidence which might materially improve the merits of his claim. Recording a finding that his claim had no realistic prospects of success without affording him that opportunity could only be justified if the court were able to find that there was no realistic prospect of his being able to adduce the relevant evidence. It was not enough to grant summary judgment because the court believed it improbable that the plaintiff would be able to do so. On balance, the court was unable confidently to find that the plaintiff had no realistic prospect of success, taking into account the possibility he might yet be able to adduce expert evidence which would enhance the viability of his claim. Even if the court could find he had no realistic prospect of improving his case, it would in the exercise of its residual discretion afford him a last opportunity to adduce the expert evidence required. The court should not deny justice because of aprocedural deficit in a litigant’s case. The defendant’s application for summary judgment under GCR O.14, r.12 would be refused on this narrow basis and to this limited extent. The same analysis applied with equal force to the strike-out application. A case for striking out had clearly been made out based on the material before the court. The plaintiff had asked the court to exercise its discretion to afford him an opportunity to obtain expert evidence from a urologist and/or dental surgeon. A “merits strike-out” application would only succeed where it was plain and obvious that the plaintiff’s case was hopeless having regard to the evidence the plaintiff was likely to adduce at trial. The court was not prepared to draw the inference that the plaintiff had failed to obtain the requisite evidence because he could not do so; it might be that the plaintiff was subject to financial constraints (paras. 48–54).

(6) In light of the findings on the expert evidence issue, the court would postpone entering a formal decision on the immunity issue under s.12 of the Health Services Authority Law (2010 Revision) as it would fall away if the plaintiff failed to adduce expert evidence. If such evidence were adduced then the parties had liberty to apply for a determination of the further issue of whether s.12 of the Health Services Authority Law (2010 Revision) was an “existing law” under s.5 of the Cayman Islands Constitution Order 2009 which was inconsistent with s.9 of the Bill of Rights and must accordingly be given a modified effect so as to bring it into conformity with the Constitution. The determination of the immunity issue would be adjourned with liberty to apply (paras. 63–65).

Cases cited:

(1)Bolam v. Friern Hosp. Management Cttee., [1957] 1 W.L.R. 582; [1957] 2 All E.R. 118; [1955–95] P.N.L.R. 7, considered.

(2)Chester v. Afshar, [2004] UKHL 41; [2005] 1 A.C. 134; [2004] 3 W.L.R. 927; [2004] 4 All E.R. 587, referred to.

(3)China Shanshui Cement Group Ltd., In re, 2015 (2) CILR 255, followed.

(4)Day v. Governor of Cayman Islands, Grand Ct., Cause Nos. 111 & 184 of 2018, March 29th, 2019, unreported, considered.

(5)Dyson v. Att.-Gen., [1911] 1 K.B. 410, referred to.

(6)Education Minister v. Clemons, Bermuda C.A., Civ. App. 21 of 2016, March 23rd, 2018, unreported, considered.

(7)Grupo Torras S.A. v. Bank of Butterfield Intl. (Cayman) Ltd., 2000 CILR 441, applied.

(8)Hadkinson v. Hadkinson, [1952] P. 285; [1952] 2 All E.R. 567, referred to.

(9)Henning v. Henning, Grand Ct., Cause No. G250 of 2014, unreported, applied.

(10)Lornamead Acquis. Ltd. v. Kaupthing Bank HF, [2011] EWHC 2611 (Comm); [2013] 1 BCLC 73, followed.

(11)MB v. RB, 2012 (1) CILR 232, applied.

(12)McCoy v. Health Servs. Auth., Grand Ct., Cause No. G2/13; September 6th, 2013, unreported, considered.

(13)McGinty v. Glasgow Victoria Hosps., 1951 S.C. 200; 1951 S.L.T. 92, considered.

(14)Meiklejohn v. St. George’s Healthcare NHS Trust, [2014] EWCA Civ 120, referred to.

(15)Omni Secs. Ltd. (No. 3), In re, 1998 CILR 275, considered.

(16)Omni Secs. Ltd. v. Deloitte & Touche, 2000 CILR 102, considered.

(17)Pantelli Assoc. Ltd. v. Corporate City Devs. Number Two Ltd., [2010] EWHC 3189 (TCC); [2011] TNLR 12, followed.

(18)Southdown Regency Dev. Ltd. v. Cayman National Bank Ltd., 2007 CILR N [4], followed.

(19)Swain v. Hillman, [1999] EWCA Civ 3053; [2001] 1 All E.R. 91; [2000] PIQR 51; [2001] C.P. Rep. 16; [1999] CPLR 779, applied.

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