Thompson (by her mother as next friend) v Health Services Authority and Alexander

• Jurisdiction: Cayman Islands
• Judge: (Williams, J.)
• Judgment Date: 19 February 2016
• Court: Grand Court (Cayman Islands)
• Date: 19 February 2016

Grand Court, Civil Division

(Williams, J.)

THOMPSON (by her mother as next friend)

and

HEALTH SERVICES AUTHORITY and ALEXANDER

J. Jones, Q.C. and Ms. K. Grandage for the plaintiif;

P. Bowen, Q.C., S. Symons, Mrs. P.-G. Golaub-Symons, S. Dickson and Mrs. A. Coe for the first and second defendants;

Cases cited:

(1) Att. Gen. v. HornerELR(1884), 14 Q.B.D. 245, referred to.

(2) Att. Gen. (Belize) v. Belize Telecom Ltd., [2009] 1 W.L.R. 1988;

[2009] 2 All E.R. 1127; [2009] UKPC 10, dicta of Lord Hoffmann considered.

(3) B, In re, 1999 CILR 460, followed.

(4) Bullard v. Croydon Hosp. Group Mgmt. Cttee., [1953] 1 Q.B. 511; [1953] 2 W.L.R. 470; [1953] 1 All E.R. 596, distinguished.

(5) D v. Home Office, [2006] 1 W.L.R. 1003; [2006] 1 All E.R. 183; [2005] EWCA Civ 38, considered.

(6) Elliott v. Cayman Islands Health Servs. Auth., 2007 CILR 163, distinguished.

(7) Everett v. Griffiths, [1921] 1 A.C. 631, considered.

(8) Floral Fantasy v. Brackin, Eastern Caribbean Sup. Ct. (St. Vincent & Grenadines High Ct.), Claim No. 17 of 2012, July 5th, 2012, unreported, dicta of Joseph, Ag. J. applied.

(9) Fothergill v. Monarch Airlines Ltd., [1981] A.C. 251; [1980] 3 W.L.R. 209; [1980] 2 All E.R. 696; [1980] 2 Lloyd”s Rep. 295, dicta of Lord Diplock followed.

(10) H.M. Treasury v. Ahmed, [2010] 2 A.C. 534; [2010] 2 W.L.R. 378; [2010] 4 All E.R. 829; [2010] Lloyd”s Rep. F.C. 217; [2010] UKSC 5, dicta of Lord Phillips of Worth Matravers followed.

(11) Inco Europe Ltd. v. First Choice Distrib., [2000] 1 W.L.R. 586; [2000] 2 All E.R. 109; [2000] 1 All E.R. (Comm) 674; [2000] 1 Lloyd”s Rep. 467; [2000] CLC 1015, 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, distinguished.

(14) Mersey Docks & Harbour Bd. (Trustees) v. GibbsELR(1866) L.R. 1 H.L. 93, referred to.

(15) Pepper (Inspector of Taxes) v. Hart, [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42; [1992] STC 898, followed.

(16) R. v. A (No. 2), [2002] 1 A.C. 45; [2001] 2 W.L.R. 1546; [2001] 3 All E.R. 1; [2001] 2 Cr. App. R. 21; [2001] H.R.L.R. 48, referred to.

(17) R. v. Canada S.S. Lines Ltd., [1952] A.C. 192; [1952] 1 All E.R. 305; [1952] 1 Lloyd”s Rep. 1, referred to.

(18) R. (Quintavalle) v. Health Secy., [2003] 2 A.C. 687; [2003] 2 W.L.R. 692; [2003] 2 All E.R. 113; [2003] 1 F.C.R. 577; [2003] UKHL 13, dicta of Lord Bingham of Cornhill considered.

(19) R. (Spath Holme Ltd.) v. Environment Secy., [2001] 2 A.C. 349; [2001] 2 W.L.R. 15; [2001] 1 All E.R. 195; (2001), 33 H.L.R. 31, dicta of Lord Nicholls of Birkenhead considered.

(20) R. (Westminster City Council) v. National Asylum Support Serv., [2002] 1 W.L.R. 2956; [2002] 4 All E.R. 654; [2002] H.L.R. 58; [2002] UKHL 38, dicta of Lord Steyn considered.

(21) Robinson v. Northern Ireland Secy., [2002] UKHL 32, considered.

(22) Savarin v. WilliamsUNK(1995), 51 W.I.R. 75, dicta of Floissac, C.J. applied.

(23) Stovin v. Wise, [1996] A.C. 923; [1996] 3 W.L.R. 388; [1996] 3 All E.R. 801; [1996] R.T.R. 354, referred to.

(24) Wilson v. First County Trust Ltd. (No. 2), [2004] 1 A.C. 816; [2003] 3 W.L.R. 568; [2003] 4 All E.R. 97; [2003] 2 All E.R. (Comm) 491; [2003] H.R.L.R. 33; [2003] UKHL 40, referred to.

(25) X (Minors) v. Bedfordshire County Council, [1995] 2 A.C. 633; [1995] 3 W.L.R. 152; [1995] 3 All E.R. 353; [1995] 2 FLR 276; [1995] 3 F.C.R. 337, referred to.

Legislation construed:

Health Practice Law 2002, s.15(2): The relevant terms of this sub-section are set out at para. 93.

Health Services Authority Law (2003 Revision), s.3: The relevant terms of this section are set out at para. 71.

s.5: The relevant terms of this section are set out at para. 72.

s.12, as amended by the Health Services Authority (Amendment) Law 2004, s.2: The relevant terms of this section are set out at para. 7.

s.12A, as inserted by the Health Services Authority (Amendment) Law 2004, s.3: The relevant terms of this section are set out at para. 73.

s.32: The relevant terms of this section are set out at para. 74.

Health Services Authority (Amendment) Law 2002, s.12: The relevant terms of this section are set out at para. 82.

Public Health (Scotland) Act 1897, s.166: The relevant terms of this section are set out at para. 103.

Medicine—negligence—exclusion of liability—Health Services Authority and employees clearly exempted from liability for medical negligence by Health Services Authority Law (2003 Revision), s.12—exclusion not limited to discharge of duties under Law but includes all acts and omissions of Authority—as no ambiguity in s.12, reference to legislative history and presumptions impermissible

Statutes—interpretation—legislative history—impermissible to refer to legislative history if statute clear and unambiguous—statement made during legislative process only to be considered if made by minister and itself clear and unambiguous

The plaintiff sought damages from the defendants for injuries caused to her as a result of the negligent medical care given to her at her birth.

The plaintiff was born in 2005 in a hospital run by the first defendant; the second defendant was the consultant obstetrician at the birth. It was alleged that the negligent care given by the defendants to the plaintiff at the time of her birth resulted in a number of serious injuries, including quadriplegia, microcephaly, cortical blindness and global developmental delay.

Proceedings were brought by the plaintiff”s mother as her next friend, seeking damages from the defendants; they agreed that they had acted negligently, but submitted that s.12 of the Health Services Authority Law (2003 Revision) (as amended by the Health Services Authority (Amendment) Law 2004, s.2) excluded any liability in negligence.

The plaintiff submitted that (a) s.12 did not expressly or clearly exclude liability in negligence, as was confirmed by the lack of any discussion in the Legislative Assembly regarding medical negligence during the enactment of the Law; (b) the immunity from liability granted by s.12 was limited to situations in which the Health Services Authority (‘the Authority’) or its employees were discharging their duties pursuant to s.5 of the Law, and as the second defendant was acting pursuant to her contract of employment and not the Law it could not be said that the immunity applied; (c) an exclusion of liability for negligence was inconsistent with ss. 3(3), 12A and 32(2) of the Law, indicating that s.12 should not be

construed as excluding liability for negligence; (d) exclusion of liability would also be inconsistent with other legislation, including the requirement in the Health Practice Law 2002 for operators of medical facilities to insure themselves against claims for malpractice; (e) UK case law and legislation indicated that liability was only to be excluded when defendants performed their duties according to the relevant legislation, and negligent performance of such duties could not be said to be done in accordance with the legislation; and (f) the presumption of legality required the court to uphold the individual”s right to commence legal proceedings unless s.12 contained clear wording removing the right to sue.

The defendant submitted in reply that (a) the plain meaning of s.12 was that liability in negligence was excluded; (b) the exclusion of liability extended to any acts or omissions of the Authority or its employees, and, in any event, the medical care given to the plaintiff had been performed pursuant to the duties imposed on the Authority by the Law; (c) ss. 3(3), 12A and 32(2) were not inconsistent with an exclusion of liability for negligence; (d) a requirement to take out malpractice insurance was not inconsistent with an exclusion of liability as insurance was required by all medical practitioners in the Islands, reducing the premiums payable, whereas liability was only excluded for the Authority; (e) the UK case law and legislation indicating that liability was not excluded when defendants negligently performed their statutory duties was not relevant as s.12 of the Law was in broader terms than the British legislation; and (f) the presumption of legality did not apply as s.12 was unambiguous and clear.

Held, ruling as follows:

(1) The Health Services Authority Law (2003 Revision), s.12, as amended by the Health Services Authority (Amendment) Law 2004, s.2, clearly exempted the Authority and its employees from liability for medical negligence if they acted in good faith, and there was no ambiguity or absurdity justifying a contrary interpretation. As the legislation was unambiguous, it was not permissible to rely on ministerial statements regarding s.12 in order to interpret it, and, in any event, the legislative history indicated that immunity from civil proceedings was to be given to the Authority and its employees. Further, the ministerial statements relied upon by the plaintiff were not sufficiently clear or unambiguous to indicate that her construction of s.12 ought to be preferred. To admit a statement made during the legislative process, the court had to be satisfied that (a) the legislation was ambiguous; (b) the statement was made by a minister; and (c) the statement was itself clear and unambiguous (para. 54; para. 68; para. 83; paras. 85–86; para. 89; para. 91; para. 118).

(2) The exclusion of liability granted by s.12 was not limited to circumstances in which the Authority or its employees were discharging their duties under the Law, as indicated by the amendment of s.12 in 2004 to omit the words ‘under this Law,’ which extended the exclusion of liability to include all the acts and omissions of the Authority or its

employees. In any event, the fact that the Authority”s employees acted according to their contracts of employment did not indicate that they were not simultaneously...