Sophia Edwards v Dr Sareth De Alwis-Seneviratne
| Jurisdiction | Cayman Islands |
| Judge | Kirsty-Ann Gunn |
| Judgment Date | 29 June 2018 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G 222 of 2014 |
| Date | 29 June 2018 |
Hon. Justice Kirsty-Ann Gunn (Actg)
CAUSE NO. G 222 of 2014
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Personal injury — split trial and credibility — strike out/dismissal of part of claim of battery
Mr Keeble for the Applicant/Respondent
Miss Mullen for the Respondent/Plaintiff
This judgment concerns the Defendant's application brought by Summons dated 20 th November 2017 for an order —
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(I) Striking out/dismissing paragraph 24(b) of the Plaintiff's Amended Statement of Claim alleging battery pursuant to GCR Order 18 r.19(1)(a) and/or (b), Order 14 r.12 or Order 14A; and
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(II) For a split trial, with a “preliminary and fundamental determination of factual issues in dispute between the parties”.
I refused both applications and undertook to provide my reasons in writing. These are given now.
For the purposes of this application it is only necessary to briefly outline each party's case.
The Plaintiff's case is that Dr Charles admitted her to CTMH with abdominal pain on 31 st November 2012. After several days in hospital she was diagnosed with tumours. Dr Charles contacted the Defendant who agreed to surgically remove these. The Plaintiff asserts that she met the Defendant the day before the surgery and they spoke (on 5 th December). She asserts that the Defendant did not discuss the removal of her reproductive organs with her at that time. The Plaintiff was not asked to sign the consent form until shortly before surgery on 6 th December and without any explanation or opportunity to read it. During the surgery the Defendant performed a full abdominal hysterectomy. The Plaintiff asserts that she was not advised that this was what the Defendant had intended to do and she did not agree to this procedure. Furthermore, a full hysterectomy was unnecessary as the Plaintiff's condition was as a result of an ectopic pregnancy and a cyst on her ovaries, not tumours. The Plaintiff asserts that the Defendant ought to have, but failed to diagnose the ectopic pregnancy and treat her accordingly. As a result of these circumstances the Defendant either committed a battery or was negligent. Additionally, the Plaintiff alleges that the Defendant maintained the false diagnosis even after the surgery and she only discovered the true diagnosis from Dr Charles some weeks later.
The Defendant accepts that he performed the hysterectomy. He denies that he met the Plaintiff prior to surgery on 6 th December or that he diagnosed her condition. His case is that Dr Charles contacted him on the day of the surgery requesting his assistance. That is when Dr Charles advised him of the diagnosis. When he attended CTMH the Plaintiff was in a critical state, close to collapse and needed emergency surgery. The Defendant asserts that he explained the hysterectomy procedure and the consequences of the procedure to the Plaintiff and that she consented to the procedure. Consequently, he was neither negligent in his care of the Plaintiff nor did he commit battery.
Mr Keeble, on behalf of the Defendant, submitted that paragraph 24.b of the Statement of Claim should be struck out because —
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(a) The Plaintiff has not pleaded the basis for “misrepresentation”
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(b) “Misrepresentation” in this instance means “misdiagnosis”. Therefore the substance of this allegation is negligent misdiagnosis, not battery. Negligent Misdiagnosis is pleaded at paragraph 15 of the State of Claim and paragraph 24b is therefore duplicitous.
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(c) Mr Keeble submitted that consent obtained as a result of misdiagnosis is still valid consent and therefore the doctor is not committing a battery. Mr Keeble relies on the decisions in Chatterton v Gerson [1981] QB 43, Hills v Potter [1983] 3 All ER 716, Abbas v Kenny 31 BMLR 157 and Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1984] 1 QB 493 in support of his client's position. The argument that there was no “genuine consent” has no basis in law/has no prospect of success.
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(d) It is an unwarranted second attempt to plead battery which is pleaded at paragraph 24.a;
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(e) That the allegation of battery as pleaded in 24.b. is unsustainable in law:-
“ Battery
24. In the premises:
(a) the Plaintiff did not consent to the said Surgery, being the removal of her cervix, uterus, both fallopian tubes and both ovaries; and
(b) the consent she did provide for the removal of two tumours from her abdomen was obtained by misrepresentation of her condition and was not a genuine consent.”
For the same reasons Mr Keeble asserts that paragraph 24.b constitutes an abuse of process and/or is frivolous and vexatious.
Miss Mullen on behalf of the Plaintiff opposed the application and submitted that —
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(a) Strike Out applications should be used in instances where most or all of the other party's case will be struck out, rather than a narrow and discreet issue which will not significantly impact on the conduct of the proceedings, as is this case.
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(b) Paragraph 24.b is not the entirety of the Plaintiffs claim for battery. Therefore, even if paragraph 24.b is struck out, the issue of battery will remain an issue to be determined at trial. Consequently, the Defendant's application is inconsistent with the overriding objectives that applications should be made with consideration to what is just, expeditious and economic.
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(c) The Defendant misrepresented to the Plaintiff, both before and after the surgery, that she had cancer. Misinformation, whether or not innocently given, and withholding information which is sought by the patient may well “vitiate consent”. Reliance was placed on the dictum in Re: T (Adult: Refusal of Treatment) [1993] FAM 95). The Plaintiff believed that the tumours were to be removed which she consented to. She was not told of, nor had she consented to, a full abdominal hysterectomy, thereby constituting battery.
GCR Order 18 r19 provides that at any stage the Court may strike out any pleading or part of a pleading on the ground that it —
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(a) discloses no reasonable cause of action or defence (subsection (1)(a));
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(b) may prejudice, delay or embarrass the trial of the action (subsection (1)(c)); and
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(c) is otherwise an abuse of the process of the court (subsection (1)(d)).
The Court should exercise its jurisdiction to strike out in the most plain and obvious cases (see Kalley v Manus 1999 CILR 566).
The Court must consider ‘whether the statement of claim discloses an alleged cause of action which has some chance of success’ ( Drummond Jackson v BMA [1970] 1 WLR 688). The mere fact that the case is weak and not likely to succeed is no ground for striking it out ( Moore v Lawson (1915) 31 TLR 418; Wenlock v Moloney [1965] 1 WLR 1238; [1965] 1 All ER 871). Therefore, the threshold for “reasonable course of action” is low. If the matter requires a detailed scrutiny of documents or assessments or the evidence, the Court will leave those matters to be determined at trial ( Cayman Health Ltd v Trincay Medical Services, 23 rd July 2013)
Where the application involves a prolonged and serious argument, the Court should decline to proceed with the argument unless it not only harbours doubts about the soundness of the pleadings, but in addition, is satisfied that striking out would obviate the necessary trial or substantially reduce the burden of preparation for trial. Williams & Humbert Ltd v W&H Trade Marks (Jersey) Ltd [1986] AC 368; [1986] 1 All E.R. 129 and In the Matter of Omni Securities Ltd (No.3) 1998 CILR 275).
In order to succeed on an application under Order 14 r.12 the Defendant has to show that the Plaintiff's claim is unsustainable ( Re Omni Securities Ltd (No. 3). The purpose of such an application is to save cost and time. If the Plaintiff can show more than a faint possibility of succeeding then the application fails.
Order 14A provides that the Court may determine any question of law summarily if —
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(a) the 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.
If the application requires an examination of the facts then the Court should not exercise its discretion under Order 14A ( Brown v Green Thumb Nursery [ 1994–95 CILR N-7]).
It is apparent that Paragraph 24.b will require a more detailed examination than is appropriate for a summary dismissal/strike out application.
Much will turn on the use of the word “misrepresentation” which will require the court to make some factual determinations after hearing evidence, including whether the Defendant withheld the true nature of the Plaintiffs condition, or advised her of a misdiagnosed condition. There may well be a distinction to be drawn between those two propositions, depending on what the court finds to be the true facts surrounding the Plaintiff giving consent. I note that the Court in Sideway and Re T observed that consent is vitiated if it is obtained by fraud or misrepresentation. If the Court finds as a matter of fact that there was a “misrepresentation” as opposed to “communication of a misdiagnosis” then the Plaintiffs claim of trespass as set out in paragraph 24.b may succeed. Paragraph 24.b therefore has some chance of success, albeit, at present, not necessarily a strong one. Paragraph 24.b therefore discloses a course of action.
Striking out paragraph 24.b pursuant to any provisions of Order 18 r.19 is, therefore, not appropriate. For the same reasons I found that it is not appropriate to exercise my discretion under Order 14 r.12 either.
As I have already set out,...
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