Valgardson v Chestnut

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 17 October 2007
• Court: Grand Court (Cayman Islands)
• Date: 17 October 2007

Grand Court

(Smellie, C.J.)

VALGARDSON

and

CHESTNUT

H.G. Robinson and M. Ram for the plaintiff;

Ms. K. Houghton and B.J. Hart for the defendant.

Cases cited:

(1) DaCosta v. R., 1988–89 CILR N–2, applied.

(2) Euro Bank Corp., In re, 2001 CILR 517, referred to

(3) Gammon (Hong Kong) Ltd. v. Att.-Gen. (Hong Kong), [1985] A.C. 1; [1984] 2 All E.R. 503, dicta of Lord Scarman followed.

(4) Hewison v. Meridian Shipping Servs. PTE Ltd., [2003] I.C.R. 766; [2003] P.I.Q.R. P17; [2002] EWCA Civ 1821, distinguished.

(5) Holman v. Johnson (alias Newland)ENR(1775), 1 Cowp. 341; 98 E.R. 1120; [1775–1802] All E.R. Rep. 98, distinguished.

(6) Lim Chin Aik v. R., [1963] A.C. 160; [1963] 1 All E.R. 223; (1962), 106 Sol. Jo. 1028, referred to.

(7) Singh v. Ali, [1960] A.C. 167; [1960] 1 All E.R. 269, applied.

(8) Sweet v. Parsley, [1970] A.C. 132; [1969] 1 All E.R. 347; (1969), 53 Cr. App. R. 221, referred to.

(9) Tinsley v. Milligan, [1994] 1 A.C. 340; [1993] 3 All E.R. 65, dicta Lord Browne-Wilkinson applied.

Legislation construed:

Health Practice Registration Regulations (2005 Revision), reg. 3(10):

‘Where an applicant is a non-Caymanian health practitioner (full-time resident or visiting) he shall provide written evidence at the date of application that he is or will be affiliated with a registered Caymanian health practitioner in the Islands or with one of the registered health care facilities in the Islands.’

Immigration Law (1997 Revision), s.28: The relevant terms of this section are set out at para. 18.

s.34: The relevant terms of this section are set out at para. 19.

Tort-negligence-ex turpi causa non oritur actio-claim not precluded by doctrine if illegality collateral to claim and not relied on in pleading-may award damages for lost earnings due to personal injury caused by defendant”s negligence, even though plaintiff working illegally

Immigration-work permits-working without licence-under Immigration Law (1997 Revision), ss. 28 and 34, working without valid permit is strict liability offence-breach of Immigration Law if Caymanian health practitioner informally sponsors non-Caymanian practitioner for work permit but no direct employment relationship and non-Caymanian practises independently

The plaintiff brought an action against the defendant to recover damages for personal injuries and losses suffered as a result of a road accident caused by the defendant”s negligence.

The plaintiff was riding his bicycle when he was struck by the defendant”s vehicle, sustaining an injury to his right wrist which prevented him from working in his field as a chiropractor. The plaintiff, a Canadian national, had no work permit in his own right, but a permit had been issued to Island Medical Centre, a chiropractic business, as his employer, following representations by it to the Immigration Board that it employed the plaintiff. However, the plaintiff had never been employed by Island Medical Centre but had worked as a sole practitioner at another practice, Island Chiropractic, in which he had bought a 50% share, paying a monthly fee to the principal of Island Medical Centre in return for his ‘sponsorship’ in obtaining a work permit. The defendant alleged that, as this arrangement was contrary to the Immigration Law and Directives, the plaintiff was precluded from recovering damages in respect of his practice in the Cayman Islands on the ground of ex turpi causa non oritur actio, and the present report is limited to the court”s ruling on this issue.

The plaintiff submitted that (a) there was no illegality, or if there were, since he had been unaware that the sponsorship arrangement required a genuine employment relationship, he was not culpable, whereas the

defendant would have to show not only criminal illegality but moral turpitude; and (b) in any event, any alleged illegality was merely collateral to his claim in negligence and he was not relying on it to found his claim.

The defendant submitted in reply that (a) the plaintiff had been working without a valid permit, contrary to the Immigration Law (1997 Revision), s.28, and was guilty of an offence under s.34, and both these sections created strict liability offences; and (b) his claim for loss of earnings should therefore be refused on public policy grounds, as the court should not assist a claimant whose action was based on an immoral or illegal act.

The court also made observations on the informal sponsorship system within the context of the requirement in the Health Practice Registration Regulations (2005 Revision), reg. 3(10) that non-Caymanian health practitioners be ‘affiliated’ with a registered Caymanian health practitioner.

Held, awarding damages to the plaintiff:

(1) The plaintiff had been working illegally since his work permit authorized him to work only for Island Medical Centre and his employment with Island Chiropractic, either as a self-employed partner or salaried employee, was outside the terms of the permit. The offences created by the Immigration Law (1997 Revision), ss. 28 and 34, were strict liability and proof of mens rea was therefore not required, since the presumption that mens rea was essential for a statutory offence could be displaced if the objectives of a statute dealing with issues of social concern could not be effectively promoted without the implication of strict liability. Immigration control and the protection of Caymanians” employment interests were matters of perennial concern in the Islands and this was sufficient to displace the presumption (paras. 21–22).

(2) Nevertheless, the plaintiff”s claim would not be disallowed on the ground of public policy as his lack of knowledge of his wrongdoing precluded the operation of the principle ex turpi causa non oritur actio. Furthermore, the illegality was collateral to his claim in negligence and he did not need to rely on it in order to found his claim for loss of earnings, but only had to show what he would, in fact, have earned. However, it could not be assumed that he would have been allowed to continue to practise indefinitely in the Cayman Islands in breach of the Law, and therefore he could recover for lost earnings here only for the period covered by his existing permit, after which it was assumed that he would have returned to practise in Canada (paras. 26–27; paras. 31–32).

(3) The Immigration Law and Directives required a local doctor to act in reality as an employer, and the informal system of sponsorship that had developed due to the demand for health practitioners” services did not conform with the Law. It was not sufficient that non-Caymanian health practitioners be ‘affiliated’ with a registered Caymanian health practitioner, under the Health Practice Registration Regulations (2005 Revision), reg. 3(10), since such affiliation could not provide a substitute for the employer/employee relationship required by the Immigration Law.

Consideration should therefore be given by the authorities to the affiliation requirement and to the current...