Tamara Myrie-Jones v Nuttall Memorial Hospital Trust Ltd
| Jurisdiction | Jamaica |
| Judge | T. Hutchinson, J |
| Judgment Date | 19 June 2020 |
| Date | 19 June 2020 |
| Docket Number | CLAIM NO. 2016 HCV 03095 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 147
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2016 HCV 03095
Nigel Jones and Olesya Y. Ammar instructed by Nigel Jones and Company for the Claimant
Ms. P. Roberts-Brown and Jonathan Neita instructed by Crafton Miller and Company for the 1 st Defendant
John Graham and Peta-Gay Manderson instructed by John Graham and Company for the 2 nd Defendant/Applicant
Application to strike out — limitations of actions — relevant date from which cause of action accrues — actions on the case — amendment of claim — addition of a party to claim — challenge to the court's jurisdiction.
The 2 nd Defendant, Dr. Barbara Noel, disputes the court's jurisdiction pursuant to Rule 9.6 of the Civil Procedure Rules and seeks the following:-
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(1) A declaration that the claim the subject matter of these proceedings became statute barred no later than 2011.
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(2) A declaration that the 2 nd Defendant was added as a party to the suit after the end of any relevant limitation period.
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(3) A declaration that it was not permissible to add the 2 nd Defendant as a party to the suit in the manner in which she was added by the Claimant.
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(4) A declaration that the amendment to the Particulars of Claim were made after the end of any relevant limitation period.
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(5) An order that the amendments to the Claim Form and Particulars of Claim by the addition of the 2 nd Defendant be struck out.
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(6) An Order that the claim against the 2 nd Defendant be struck out as an abuse of the process of the court.
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(7) Costs
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(8) Such further or other relief as this Honourable Court deems just.
On the 23 rd of February 2005, the Claimant, Mrs Myrie-Jones, had a caesarean section at the Nuttall Memorial Hospital, the first defendant. This procedure was conducted by the 2 nd Defendant during which she was assisted by nurses employed to the 1 st defendant. In 2008, the Claimant had a second operation surgery to remove her left ovary and fallopian tube. This surgery was also performed by the 2 nd Defendant at the same hospital.
In 2014, the Claimant began to experience microscopic haematuria (blood in the urine) and lower urinary tract symptoms among other issues. She was examined by Dr William Aiken, a Consultant Urologist who provided a medical report. In this report he noted that the Claimant had a suture (foreign body) on the right bladder wall with a calculus on its end which required surgical removal and this was done on the 8 th of July 2015. He proferred the opinion that the suture was left in the Claimant's body during the caesarean section which was performed in 2005.
On the 21 st day of July 2016, the Claimant filed suit against the 1 st Defendant for negligence. On the 21 st May 2018, an Amended Claim Form and Amended Particulars of Claim were filed in which the 2 nd Defendant was added as a Defendant. The Claim against the 2 nd Defendant is for negligence arising out of the procedure performed by her on the 23 rd of February 2005, during which the Claimant alleges the suture was left inside her.
On the 23 rd of April 2019 the 2 nd Defendant filed an Acknowledgment of Service and on the 14 th of May 2019 she filed her Notice of Application for Court Orders seeking the declarations and orders referred to above. On the 2 nd of June 2020, the day of this hearing, the Claimant discontinued the action against the 1 st Defendant.
The legal issues to be resolved by this Court are as follows:
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(i) Whether the 2 nd Defendant can bring a Notice of Application to strike out the claim in circumstances where she has not filed a Defence.
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(ii) Whether the limitation period accrues from the date of the surgical procedure, 23 rd of February, 2005, or when the microscopic haematuria and lower urinary tract symptoms were observed in 2014;
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(iii) Whether the Claimant had properly added the 2 nd Defendant to the claim;
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(iv) Whether the claim should be struck out pursuant to Rule 26.3 of the Civil Procedure Rules.
The 2 nd Defendant seeks to persuade the Court that it should not exercise its jurisdiction to allow the claim to proceed on the basis that it is statute barred. In this regard, she has relied on the provisions of Rule 9.6 of the Civil Procedure Codes which states as follows;
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(1) A defendant who—
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(a) disputes the court's jurisdiction to try the claim; or
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(b) argues that the court should not exercise its jurisdiction, may apply to the court for a declaration to that effect .
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(2) A defendant who wishes to make an application under paragraph (1) must first file an acknowledgment of service .
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(3) An application under this rule must be made within the period for filing a defence .
(Rule 10.3 sets out the period for filing a defence.)
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(4) An application under this rule must be supported by evidence on affidavit .
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(5) A defendant who —
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(a) files an acknowledgment of service; and
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(b) does not make an application under this rule within the period for filing a defence, is treated as having accepted that the court has jurisdiction to try the claim.
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(6) Any order under this rule may also —
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(a) strike out the particulars of claim;
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(b) set aside service of the claim form;
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(c) discharge any order made before the claim was commenced or the claim form served; and
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(d) stay the proceedings.
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(7) Where on application under this rule the court does not make a declaration, it —
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(a) must make an order as to the period for filing a defence; and
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(b) may —
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(i) treat the hearing of the application as a case management conference; or
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(ii) fix a date for a case management conference.
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Part 26 sets out powers which the court may exercise on a case management conference.)
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(8) Where a defendant makes an application under this rule, the period for filing a defence is extended until the time specified by the court under paragraph (7)(a) and such period may be extended only by an order of the court. (emphasis supplied)
The Notice of Application and Affidavit in support which were filed on the 14 th of May 2020 set out the grounds on which the Court is being asked to exercise its powers.
In respect of this application, it was submitted by Mr Jones on behalf of the Claimant that Rule 9.6(1) provides for two distinct situations under which the Court's jurisdiction can be challenged. He acknowledged that the challenge raised in the instant matter is not whether the Court is the right forum to hear the matter but that the Court should use its discretion and refuse to embark on a hearing on the basis that the claim is statute barred. In respect of this position Counsel argued that case law such as Vanetta Neil v Janice Halstead [2019] JMSC CIV 68 and Toussant Tucker v Inez Bouges [2013] JMSC Civ 90 make it clear that where issues of limitation are raised on the face of a matter, it is for the Defendant to plead the breach by filing a defence in order to bring this issue to the forefront of the Court's mind.
Mr Jones also submitted that until the defence is specially pleaded by the Defendant, the Court will not block a Claimant from seeking compensation and the 2 nd Defendant must file a Defence under the Limitations of Actions Act before seeking to strike out the claim on the ground that it is frivolous, vexatious and an abuse of the process of the Court.
Counsel also contended that in the absence of a filed defence an allegation concerning the expiration of a limitation period, without more, is not a ground upon which the Court's jurisdiction can properly be challenged and the 2 nd Defendant should not have submitted the Notice of Application but should have filed a Defence.
In considering this issue the decision of Ronex Properties Ltd v John Laing Construction [1983] Q.B. 398 was carefully reviewed. In that matter, the Court was faced with an application to strike out a claim where the limitation period had run and no defence had been filed. Useful guidance was provided in the dicta of Donaldson LJ at page 405 of the judgment where he stated;
Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed. (emphasis supplied)
While it is not in dispute that the 2 nd Defendant has not filed a defence to the claim in compliance with Part 10 of the CPR, a review of the documents provided reveals that she has however complied with the requirements set out by the Court in Ronex Properties Ltd as well as Rule 9. 6(2), (3) and (4) of the CPR.
The contents of the Notice of Application and more importantly the Affidavit in Support though not sworn to by the Defendant herself comply with the requirements of Part 30 of the Rules and provides the Court and the Claimant with some of the information that would ordinarily have been included in her defence.
At paragraph 3 of the affidavit it is stated that ‘Dr. Noel denies liability for the procedure’, and paragraph 7 outlines that “any claim in respect of that surgical procedure would be statute barred when the “amendment” was made on the 21 st of May, 2018”.
These assertions provide the basis on which the 2 nd Defendant has asked that the matter be...
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