Yvonne Ferris Claimant v Dickenson Bay Management Ltd Defendant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Harris J |
| Judgment Date | 25 October 2007 |
| Judgment citation (vLex) | [2007] ECSC J1025-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO: ANUHCV2006/0325 |
| Date | 25 October 2007 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO: ANUHCV2006/0325
Ms. Veronica Thomas and Ms. Samantha May for the Claimant
Mr. Vernon Tomlinson for the Defendant
This is an application by the Defendant to strike out the Claimant's claim for personal injury as statute-barred under the provisions of Section 13 of the Limitation Act,1997, Laws of Antigua and Barbuda.
The background to this matter—with some modification—is taken from the pleadings and legal submissions filed in the substantive matter and in this application to strike out the claim.
The Claimant claims against the Defendant for negligence for, inter alia, failing to provide a safe place of work and safe system of work. The Claimant is employed by the Defendant as a resident Nurse; a Nurse of some 15 yrs experience at the time of the incident complained of. The Claimant alleges that on the 1st September, 1999, while acting in the course of her employment, she was about to sit on the chair at the desk at her work station when she slid and fell on the slippery tiled floor around her nurse's station. The Claimant further alleges that again on 30th December, 1999, while acting in the course of her employment, she accompanied a member of staff to hospital in an ambulance. On the way to the hospital, the Claimant alleges that the ambulance swerved and jerked suddenly, throwing her of her seat. The seat was not fitted with a seatbelt. As a result of these incidents the Claimant alleges she suffered personal injury, loss and damage for which she now claims compensation from the Defendant (also referred to as Sandals in the exhibits in this application). The Claimant commenced her claim on the 15th June, 2006. This is approximately 31/2 and 4 years respectively, after the expiration of the standard limitation period of three (3) years from the date of the two incidents, within which she is required to have commenced her action against the Defendant.
The relevant statute governing the operation of limitation periods is The Limitation Act, No. 8 of 1997 Laws of Antigua and Barbuda; more specifically section 13 generally and S.13 ( 4), S. 16 ( 1) S.16 ( 2), S.16 (3).
In essence S.13 provides for a three (3) year limitation period for actions in respect of personal injuries from the date on which the cause of action occurred; or the date of knowledge (if later) of the person injured. The "date of knowledge" is the limb upon which the Claimant asserts is applicable to her circumstance and is referred to in S.13 (4) (b) of the Act. The phrase "date of knowledge" is further defined in S.16 of the Act.
The upshot of the Act is as follows: A person's date of knowledge is reference to the date on which the Claimant first has knowledge that the "injury in question is significant." An injury is significant if the person whose date of knowledge is in question, would reasonably have considered the injury "sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment". "Knowledge" includes knowledge a person may reasonably be expected to acquire from facts observable and ascertainable by him" or "from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek."
At the outset it is clear that the Claimant has not satisfied S. 13(4) (a)1 and that the Claimant's defence to the application to strike out her claim is founded on satisfying S.13 (4) (b) which reads: "(b) the date of knowledge (if later) of the person injured", as the date at which the limitation period commences running.
The Claimant commenced its action on the 15th June of 2006, over 6 yrs from the date on which the cause of action occurred. The Claimant is over three (3) years late2 unless she can establish a later "date of knowledge" as defined by the Act.
The chronology of the relevant events are set out in paragraph 3–13 of the Affidavit and exhibits thereto in Response to Application to strike out Claim filed on November 7th 2006.
In short, the Claimant while on duty having slipped and fell on "slippery" tiles visited Dr. Conrad Stevens who prescribed anti inflaminatories and muscle relaxants and referred her to Dr. K.K. Singh Consultant Orthopedic Surgeon.
She visited Dr. Singh inOctober 1999 in relation to the same injury. On the 30th December, again while on duty accompanying a patient to the Hospital on an ambulance the ambulance "suddenly swerved and jerked"3 and she was thrown off the seat "which
was not fitted with a seat belt"1. The Claimant claims to have exacerbated her existing back pains as a result of this incident in the ambulance.The Claimant again visited Dr. K.K Singh in January of 2000. Dr. Singh produced a report dated20th May 2000 and concluded the diagnosis of RIGHT SIDE SACRO—ILIAC STRAIN involving right side ILIO-LUMBER and SACRO-LUMBER LIGAMENTS. This examination also revealed an incidental finding of SCOLIOSIS (lumber Curve L3–5 with concavity to right side).
This incidental finding is presumably unrelated to the two incidents complained of. In any event it does not affect the Court's ultimate findings in this matter. The Claimant says that she understood the Doctors diagnosis to be that she has strained the muscles on the right side of her lower back. She was prescribed anti-inflammatories and advised to do physical therapy to rehabilitate her lower back.
Dr. Singh produced another report of17th July, 2000 in which he refers to a CT scan which was advised on account of the "second occupational injury" of Nurse Ferris, the Claimant herein. Dr. Singh indicates that the CT scan report by Consultant Radiologist revealed an 'annular disc bulge at L3–L4 and L4–L5 with normal nerve roots and marked degree of facet arthrosis'. Dr. Singh describes the claimant as being still on a "conservative line of treatment" and "temporarily disabled in the full functions of her lumbo-sacral spine". This was some 11 months after the first incident that the Claimant is still disabled, albeit in the Doctor's opinion, temporarily.
The Claimant says that her employer had undertaken to meet the cost of all her medical expenses and that she remained in Dr. Singh's care who "monitored and supervised" her condition. Further, the Claimant claims she did what ever Dr. Singh advised her to do and will visit him on occasions when she had painful episodes which did not go away with the conservative treatment he had recommended.
By this time over 2 years had elapsed since the injuries.
The Claimant deposes to havingmore frequent episodes of pain and eventually by referral by Dr. Singh to a Dr. Bedaysie, a doctor in Trinidad and Tobago, to have a MRI Scan conducted.. Dr Singh, by letter dated 25th January 2003 had referred the Claimant to Dr. Bedaysie, the Doctor in Trinidad and Tobago. The MRI was done on 13th October, 2003 and the expenses met by the Claimant's employers. The reference to more frequent episodes of pain suggests that the Claimant up until that time was experiencing pain, albeit not as frequent. This takes the Claimants condition/injury to over three (3) years in existence by the date of Dr. Singh's referral letter of 25/1/031.
Dr. Henry Bedaysie's report dated14th January, 2004 and the CT scan report of the 13th February, 2004 are both exhibited to the Claimant's affidavit in response and both contain medical scientific jargon beyond a layman's understanding. However, the Claimant, an experienced Nurse, at paragraph 10 of her Affidavit in Response said that she understood Dr. Bedaysie's report of the 14th January, 2004 to mean that she would require surgery.
Both Dr. Bedaysie in his report of January 14th 2004 and Dr. Singh's letter of 23/7/04 to Sandals maintain the recommendation that the Claimant continue physical therapy.
It would be some two (2) years after this, the first report by Dr. Singh dated 23rdJuly, 2004 recommending surgery, before the Claimant filed her claim before the High Court of Justice St. John's Antigua.
The defence to the application before the Court is based on what I will refer to as the"date of knowledge". Section 16 (1) provided facts upon which the reference to a person's date of knowledge can be determined. It is, I believe, useful to lay out the section at this time.
"16. (1) In section 13 and 14 references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—
(a)that the injury in question was significant;
(b)that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty.
(c)the identity of the defendant; and
(d)if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts 13 supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a persons knowledge includes knowledge which he might reasonably have expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other...
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