Nathan Addiman v Ryan Wiggan

• Jurisdiction: Jamaica
• Judge: I. Reid
• Judgment Date: 25 May 2021
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2019CV00812

[2021] JMSC CIV. 131

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2019CV00812

Between

Nathan Addiman

1 ^ST Applicant/ 1 ^ST Defendant

and

Ryan Wiggan

2 ^ND Applicant/ 2 ^ND Defendant

And

Uriah Gardener

Respondent/Claimant

IN CHAMBERS

Georgia Hamilton and Tia Blake instructed by Georgia Hamilton and Associates for the Applicants

Trishia Griffiths for the Respondent

Expert Witness — Rule 32.2 of the Civil Procedure Rules (CPR) — Case Management Powers — Parts 25 and 26 of the CPR — Application for Stay of Proceedings pending examination by an expert — Whether the Applicants' request is reasonable — Whether the Respondent's refusal is unreasonable — The risk of prejudice to either party should the stay be granted or refused.

I. Reid (AG)

I gave my decision in this matter and promised to provide a written judgment and so I now move to honour that commitment. The delay in doing so is regretted.

Background

1 On April 10, 2017, Mr Uriah Gardener (the Respondent) was involved in an accident which resulted in several injuries including whiplash, soft tissue injury, reduced mobility and a 10 cm wound to his right ankle. He visited the Kingston Public Hospital (KPH) and Dr. Sandra Nesbeth at SMN Medical Centre (SMN Medical) located in Linstead in the parish of St. Catherine. He filed a claim against Mr Nathan Addiman and Mr Ryan Wiggan to recover damages for negligence arising out of the motor vehicle accident.

2 The references to various dates stated in the Respondent's statement of case contradicted the dates cited in a medical report provided by SMN Medical. The date of the accident was confirmed as April 10, 2017. In the report dated February 4, 2019, Dr. Nesbeth stated that the Respondent visited her office on April 14, 2017, for injuries sustained in a motor vehicle accident that occurred on April 20, 2017. This impossibility was later clarified in the Respondent's witness statement filed May 29, 2020, and the affidavit of Trishia Griffiths in support of the notice of application for the appointment of expert witnesses filed July 8, 2020. The Respondent visited SMN Medical Centre from April 14, 2017, until June 30, 2018.

3 The Applicants filed a defence to the claim on July 17, 2019, that was limited to quantum only. They stated at paragraphs 6 and 7:

“That in response to the Particulars of Injuries alleged, these [Applicants] deny that the [Respondent] sustained the following, as a result of the abovementioned motor vehicle accident:

• A. Whiplash to the neck and back;

• B. Soft tissue injury to the shoulder scapula and hip; and

• C. Reduced mobility to the upper limb

That in response to the said Particulars of Injury, these [Applicants] will say that:

A. The [Respondent], on his own case, was injured in a motor vehicle accident on 20 April 2017….and it is this second and subsequent motor vehicle accident that is the cause of the injuries/effects that are denied in the immediately preceding paragraph; and

B. The injuries and effects listed in the immediately preceding paragraph are not supported on the medical report of Dr. R. Webber from the Kingston Public Hospital, which is the place where the [Respondent] was first seen and treated for his injuries sustained in the motor vehicle accident that forms the subject of this claim and were, on the [Respondent's] own case, he continued to receive treatment until 20 June 2017.”

4 The Applicants concluded that based on the Respondents statement of case, there seems to have been another accident, as the KPH mentioned only injuries to his right leg.

5 The Respondent filed a Notice of Application on May 26, 2020 requesting Dr. R. Webber and Dr. Sandra-Marie Nesbeth be accepted as experts. This was amended in an application filed on November 26, 2020. The amended application included terms to allow the Applicants to pose questions to the proposed experts and if these experts had failed to provide answers, then they sought an order requiring their attendance at the assessment hearing for cross-examination. The court ordered on December 3, 2020, that the Respondent's doctors be accepted as experts.

6 On February 26, 2021, the Applicants filed an urgent notice of application for court orders, requesting that the matter be stayed pending the Respondent's evaluation by Dr. Derrick McDowell, Consultant Orthopaedic Surgeon, or such other specialist. They also requested that the Respondent provide diagnostic film/ report and all physiotherapy reports pertaining to his injuries. The hearing for assessment was scheduled for March 23, 2021.

Submissions

For the Applicants

7 The Applicants maintained that although they had objected to the Respondent's treatment providers, the medical doctors who saw the Respondent were certified as experts in December 2020.

8 They have also stated that they made attempts to find a doctor willing to assist in the preparation of their defence between July 3, 2020 (when the Respondent's attorney had provided a letter indicating that the medical report provided by Dr. Nesbeth had an error with regard to the date and attached the corrected report to the said letter) and February 23, 2021. They explained that because of the effects of the pandemic they experienced difficulties securing a doctor to examine the Respondent. They made arrangements to have the Respondent evaluated by Dr. Derrick McDowell on 26 February 2021, but he refused.

9 The Applicants argued that the Respondent was being unreasonable as an evaluation by an expert at this stage did not solely relate to his current condition but the period commencing from the date of the injury to the present. They also took issue with the Respondent having been treated at multiple facilities; referring to an accident which occurred 20 April 2017; claiming injuries to his neck, back, shoulder; and the ‘apparent excessive nature of the treatment administered by Dr. Sandra Nesbeth” They stressed that posing questions to the currently accepted experts would not suffice as the Respondent's treatment extended to persons and institutions other than said experts. An expert is therefore necessary to ascertain whether the Respondent's alleged injuries are consistent with the mechanism of the accident and whether the course of treatment is reasonable.

10 The Applicants relied on Starr v National Coal Board [1977] 1 W.L.R. 63 for support that the claim should be stayed until the Respondent agrees to submit to medical examination by his named expert.

For the Respondent

11 The Respondent contended that the Applicants did not object to his medical reports nor expressed a need for the doctors to attend court. He stated that they did not set out in their defence that they wished to have the Respondent examined by an independent expert of their choice. Furthermore, they had withdrawn their opposition to having the doctors admitted as experts and had made no application to have their expert.

12 The Respondent emphasized that all relevant dates have been corrected. There was no accident on April 20, 2017. The injuries outlined by the doctor are consistent with the mechanism of the accident on April 10, 2017.

13 The Respondent asserted that an evaluation by a doctor, at this stage, is futile as he has fully recovered from his injuries. Any report based on such evaluation would not be necessary for the Applicants to mount their defence and will have little weight in the just resolution of this matter. The Applicants, he contended, were cognizant of the requirements to prove their defence since July 17, 2019. Their conduct, therefore, is questionable, and indicates the Applicants' application for a stay of proceedings is simply a delay tactic being used to further “put [the Respondent] out of judgment sums owing”.

14 The Respondents sought to distinguish the case of Starr v National Coal Board by arguing that the plaintiff in Starr admitted that the defendant would need the assistance of the neurologist. The Respondent indicated that he has never accepted that another expert would be necessary. Rather, the case of London Borough of Croydon v Y [2016] EWCA Civ 398 bears more similarities as counsel for the Respondent indicated in paragraph 2 of her written submissions, filed March 29, 2021, that the Court of Appeal had:

“…refused Croydon's application, saying that it was ‘most unfortunate’ that Y's representatives would not co-operate, but that it would be ‘too draconian’ to stay or strike out the proceedings. The judge said that Starr did not apply, first because (unlike Mr. Starr) Y had not conceded that 's assessments were necessary; and second, because this was public rather than private law litigation.”

15 The court was urged to consider the impact of the pandemic. The KPH has stated that it cannot accommodate requests for medical reports due to the pandemic. As a result, Mr. Gardner would have difficulty obtaining his records to present to an expert. Additionally, the pandemic has led to doctors being exhausted. There was no evidence presented by the Applicants that Dr McDowell could have seen Mr. Gardner and would have found the time to prepare a report. It is, therefore, not advisable for the court to order a stay with such uncertainties being unresolved.

16 Counsel for the Respondent also submitted that an order granting a stay of proceedings is of such a serious nature that it will infringe on the Respondent's constitutional rights to a fair assessment hearing within a reasonable time. Ordering a stay at this time would be a draconian act, not a good exercise of the court's case management powers and will not lead to the fair and efficient disposal of this matter.

LAW

17 The primary duty of the court is to achieve the overriding objective and deal with cases justly. As explained by Rule 1.1 of the CPR, this includes saving expense; dealing with matters expeditiously and fairly; allotting appropriate share of...