Arinna Nazli Respondent/Claimant v Mount St. John'S Medical Centre Board Uretha Gasper Applicants/Defendants [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Tabor, M,Charlesworth Tabor |
| Judgment Date | 28 August 2013 |
| Judgment citation (vLex) | [2013] ECSC J0828-3 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO. ANUHCV2013/0006 |
| Date | 28 August 2013 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Master Charlesworth Tabor (Ag.)
CLAIM NO. ANUHCV2013/0006
Civil Procedure Rules 2000 (CPR 2000) — application to strike out statement of claim under CPR 26.3 (1) (c) — limitation of time for bringing action under section 2 (a) of the Public Authorities Protection Act, Cap. 352 of the Laws of Antigua and Barbuda — action in contract and negligence — personal injuries to patient — date when time begins to run — statutory duty or authority.
Tabor, M (Ag.): This is an application by the defendants filed on 13th February, 2013 for an order pursuant to Rule 26.3 (1) of the Civil Procedure Rules ( CPR) 2000 to strike out the claim form and statement of claim of the claimant filed on 4th January, 2013. Affidavits in support of this application were filed on the same date by Mr. Milton Pringle, Chairman of the Mount St. John's Medical Centre Board; and Ms. Uretha Gasper, nurse and certified midwife at Mount St. John's Medical Centre.
The defendants filed submissions in support of the application to strike out the statement of claim on 9th April, 2013; while the claimant filed submissions in response on 23rd May, 2013.
The ground of the application to strike out is that the action is an abuse of the process of the court in that it is statute barred having being filed after the expiry of the six month limitation period stipulated by section 2 (a) of the Public Authorities Protection Act, Cap. 352 of the Laws of Antigua and Barbuda (PAPA).
The issues which fall to be determined by the court are:
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(a) Whether the Mount St. John's Medical Centre Board is "a public authority" within the meaning of PAPA?
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(b) Is the act complained of by the claimant an act done pursuant to or in execution of any Act or public duty by the defendants?
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(c) Whether the Mount St. John's Medical Centre Board is entitled to protection under PAPA?
The first defendant, Mount St. John's Medical Centre Board, was incorporated in 2009 to be responsible for the administration, management and organization of the Mount St. John's Hospital. The second defendant is and was at all material times a nurse and midwife of the first defendant assigned to manage the claimant and the delivery of the claimant's first baby.
The claimant was born on 28th January, 1982 and is a self-employed tutor offering after school lessons to students. On 11th April, 2012 the claimant was admitted to the Obstetrics and Gynecology Department of the Hospital at 39 weeks gestation to deliver her first baby. For the services provided by the first defendant to facilitate the delivery, the claimant agreed to and paid for the same between 23rd February, 2012 and 1st May, 2012.
An implied term of the agreement between the claimant and the first defendant and its servants or agent was the duty to exercise all reasonable care, skill and competence in managing the claimant and the delivery of her baby. The claimant is alleging breach of this agreement as a result of personal injuries which she suffered arising from the negligence of the second defendant on 12th April, 2012.
The claimant has identified the following as the particulars of the breach of the agreement:
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(1) Failure to establish a proper Obstetrics and Gynecology Department to provide obstetrics services to the claimant.
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(2) Failure to establish any or any proper protocols for the management of the claimant during the delivery of her first baby.
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(3) Failure to ensure that the second defendant was adequately supervised whilst she was managing the claimant.
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(4) Failure to ensure that the claimant was properly managed by the second defendant or another servant or agent of the first defendant.
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(5) Failure to ensure that the claimant was medically examined by an Obstetrician and/or Gynecologist having undergone an episiotomy at the hands of the second defendant.
The claimant has identified the following as the particulars of negligence:
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(1) Failing to take any or any proper or effective measures whether by way of examination, tests or otherwise to ensure that the claimant's cervix had dilated sufficiently before delivery.
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(2) Failing to perform an episiotomy with the standard of care, skill and competence expected of a nurse/midwife.
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(3) Wounding the claimant.
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(4) Failing to take proper care of and/or to assist in postpartum care of the claimant.
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(5) Failing to exercise any standard of care in suturing the wound created by the negligently performed episiotomy.
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(6) So far as the same may be necessary, the claimant will rely on the doctrine ofres ipsa loquitor.
The claimant has identified the following as the particulars of her injuries:
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(1) Wounding of the labia in the performance of medio-lateral episiotomy.
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(2) Dehiscence of a left medio-lateral episiotomy.
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(3) Bacterial vaginitis.
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(4) Severe scarring and disfiguration of the labia.
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(5) Severe pelvic pain and difficulty with ambulation.
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(6) Immobility.
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(7) Muscle atrophy.
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(8) Post-traumatic stress disorder.
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(9) Inability to care for and bond with her first newborn baby.
As a result of the foregoing, the claimant is asking the court for the following relief:
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(1) Damages for breach of contract.
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(2) Damages for personal injuries caused by the negligence of the defendants.
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(3) Special damages in the sum of $23,713.00.
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(4) Interest pursuant to section 27 of the Eastern Caribbean Supreme Court Act, Cap. 143.
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(5) Such further or other relief as this Honourable Court deems just.
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(6) Costs.
The power of the court to strike out a statement of case is provided for by Rule 26.3 (1) of the CPR 2000 which states as follows:
"In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that —
(a) …..
(b) the statement of case or part to be struck out does not disclose any reasonable ground for bringing or defending a claim;
(c) the statement of case or part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings; or
(d) the statement of case or part to be struck out is prolix or does not comply with the requirements of Part 8 or 10".
The striking out of a statement of case or defence is a draconian step which a court would only take in exceptional circumstances. InBaldwin Spencer v The Attorney General of Antigua and Barbuda et al(Civil Appeal No. 20A of 1997) Dennis Byron CJ (Ag.), as he then was, restated the seminal test that should be applied by the court on an application to strike out when he said:
"This summary procedure should only be used in clear obvious cases, when it can be seen on the face of it, that a claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court…. Striking out has been described as 'the nuclear power' in the court's arsenal and should not be the first and primary response of the court".
In his judgment in the interlocutory appeal inTawney Assets Limited v East Pine Management et al(BVI High Court Civil Appeal No. 7 of 2012) Mitchell JA (Ag.) in underscoring the need why the court should proceed cautiously when dealing with an application to strike out noted that:
"The exercise of this jurisdiction deprives a party of his right to a trial and of his ability to strengthen his case through the process of disclosure, and other procedures such as requests for further information. The court must therefore be persuaded either that a party is unable to prove allegations made against the other party; or that the statement of case is incurably bad; or that it discloses no reasonable ground for bringing or defending the case; or that it has no real prospect of succeeding at trial".
InCitco Global Custody NV v Y2K Finance Inc.(BVI High Court Civil Appeal No. 22 of 2008) Edwards JA in dealing with an application to strike out noted that:
"Striking out under the English CPR, r 3.4 (2) (a) which is the equivalent of our CPR 26.3 (1) (b), is appropriate in the following instances: where the claim sets out no facts indicating what the claim is about or if it is incoherent and makes no sense, or if the facts it states, even if true, do not disclose a legally recognizable claim.
Also, inIan Peters v Robert George Spencer(Antigua and Barbuda High Court Civil Appeal No. 16 of 2009), Pereira CJ (Ag.), as she then was, indicated that a statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be determined at trial by hearing oral evidence.
Learned Counsel for the defendant, Miss Kamilah Roberts, noted that the application before the court was primarily concerned with the application and interpretation of the Public Authorities Protection Act, Cap. 352 of the Laws of Antigua and Barbuda. She further noted that Section 2 of the Act states that:
"Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or of any public duty or authority or any alleged neglect or default in the execution of any such act, duty or authority, the following provisions shall have effect:
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof".
Learned Counsel also observed that the Antigua...
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