The Attorney General of Jamaica v Abigaile Brown (by Next Friend Affia Scott); The Attorney General of Jamaica v Abigaile Brown
| Jurisdiction | Jamaica |
| Judge | Edwards JA,F Williams JA,Brown JA (AG) |
| Judgment Date | 26 November 2021 |
| Neutral Citation | JM 2021 CA 129 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00125 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 50
IN THE COURT OF APPEAL
The Hon Mr Justice F Williams JA
The Hon Ms Justice Edwards JA
The Hon Mr Justice Brown JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2019CV00125
SUPREME COURT CIVIL APPEAL NO COA2020CV00019
Written submissions filed by the Director of State Proceedings for the appellant
Written submissions filed by Nunes, Scholefield, Deleon and Company for the respondent
I have read in draft the judgment of Brown JA (Ag). I agree with his reasoning and conclusion and have nothing to add.
I have read the draft judgment of Brown JA (Ag) and agree with his reasoning and conclusion.
The Attorney General of Jamaica (‘Attorney General’) has filed two procedural appeals SCCA No 125/2019 and SCCA No 19/2020 against the decisions of Nembhard J (‘the learned judge’) in the Supreme Court on 16 October 2019 and 10 December 2019 respectively. These appeals will be considered and determined together.
In a written judgment, the learned judge, in respect of the first of the appeals, SCCA No 125/2019, granted an application for amendments to be made to the respondent's statement of case. She also, on the date scheduled for trial, granted an oral application for the appointment of an expert witness. The learned judge, at para. [2] of her judgment, set out the issues which called for resolution as follows:
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“1. What is the proper interpretation to be applied to section 7 of the English [Statute of Limitation, Imperial Statute 21 James 1, Cap 16, of] 1623?
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2. Whether the amendments indicated in the Further Amended Particulars of Claim, filed on 15 July 2019, are amendments that are being made after the expiration of a relevant limitation period?
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3. Whether the purported amendments indicated in the Further Amended Particulars of Claim, filed on 15 July 2019, amount to a ‘fresh claim’ in that, new injuries are being pleaded for the first time?
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4. Is the Court properly to certify or appoint Dr Kai A.D Morgan as an expert witness for the hearing of the Assessment of Damages?
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5. Should permission properly be granted for the final report of Dr Kai A.D Morgan, dated 20 April 2019 and filed on 9 July 2019, to be tendered in evidence at the Assessment of Damages?”
In the second appeal, SCCA No 19/2020, the appellant is challenging the decision of the learned judge to strike out its statement of case, namely its defence. This will be dealt with later in this judgment.
Abigaile Brown (‘the respondent’) is the claimant who initiated proceedings in the Supreme Court by her mother and next friend. She is 12 years old. She was born on 7 October 2009 at the Falmouth Hospital in the parish of Trelawny. The Board of Management of the Falmouth Public General Hospital is represented by the Attorney General in these proceedings, who was joined by virtue of the provisions of the Crown Proceedings Act. The Falmouth Public General Hospital provides medical services to include obstetric and gynaecological services to the public.
On 7 October 2009, the respondent's mother who was nine months pregnant attended the Falmouth Public General Hospital for her delivery. During her delivery, the respondent experienced shoulder dystocia. This is a medical condition in which the respondent's shoulder becomes lodged to the mother's pubic bone, and the delivery of the head, shoulder and upper torso of the respondent becomes delayed during the delivery. The respondent's feet and lower body were delivered but the remainder of her body (head, neck, shoulder and upper torso) was stuck in the birth canal.
As a result of this condition, the respondent suffered a brachial plexus injury at birth, which is an injury to the nerves from the neck region of the spinal column to the shoulder. As a consequence of this, she developed Erb's palsy, which is paralysis in her right shoulder and arm.
The respondent instituted proceedings by way of a claim form and particulars of claim in the Supreme Court against the appellant for medical negligence of its servants/ agents, in this case, the Falmouth Hospital, on 11 October 2012. The claim form was subsequently amended on 7 August 2014 and 15 July 2019. It is the amendments that were filed on 15 July 2019 that are being challenged in this appeal, SCCA No 125/2019.
In the amended claim form, the respondent seeks to recover damages for negligence and breach of contract of the appellant's servant/agents (medical staff) that negligently undertook and managed the prenatal care, delivery and birth of the respondent that resulted in the permanent physical injury, Erb's palsy.
Damages were also sought for the negligence and/or breach of duty on the part of Radiology West Limited (not a party before this court) who conducted an ultrasound examination and interpreted the results in such a manner that, allegedly, created a risk to the respondent's health, affected the management and delivery of the respondent by the hospital staff and resulted in the respondent suffering personal injuries. The respondent also claimed costs and interest at the rate of 6% per annum or such other rate as deemed appropriate by the court.
The appellant filed a defence to the claim on 20 February 2012. It denied liability on the following bases:
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a) The condition of medical shoulder dystocia arose during delivery however it was denied that the agents and/or servants caused the respondent to sustain a brachial injury at birth and that all reasonable steps were taken to manage this condition during delivery.
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b) The respondent suffered Erb's palsy of her right shoulder and arm which rendered it lifeless.
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c) The respondent's mother was admitted and was carefully and continuously monitored from 1 to 6 October 2009, she did not appear to be under distress. There were no signs of labour.
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d) On 6 October 2009, an ultrasound was conducted on the respondent's mother which revealed that the fetus was “cephalic” and no abnormalities were observed. There was no sign of labour. She was then discharged.
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e) On 7 October 2009, when the respondent's mother returned to the ward she was in active labour and the respondent had been partially delivered up to the chest level but was not progressing.
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f) It was observed that the lower part of the respondent's body was protruding up to the level of the chest outside the birth canal, the upper part of the body was still trapped inside the birth canal and a diagnosis of shoulder dystocia was made.
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g) The respondent was carefully removed by the bending of her shoulder blades then one hand was extracted followed by the other to allow the remainder of her body to be delivered. The respondent was delivered without any undue force as there was no cephalo-pelvic disproportion.
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h) The medical staff at the Falmouth Hospital exercised reasonable skill and care in both the treatment preceding the respondent's delivery and how she was delivered.
The claim first came up for case management on 2 February 2017, before Rattray J. The trial date of 14 October 2019, for three days, was set. Rattray J also fixed 17 June 2019 for pre-trial review hearing. The case management conference was then adjourned to 26 October 2017, to facilitate the continuation of discussions between the parties.
On 26 October 2017, when the matter came up for hearing for case management conference before Thompson-James J, standard orders were made for the disclosure of documents, filing and exchange of witness statements on or before 15 February 2019. Orders were also made for applications to be made concerning expert witnesses.
On 17 June 2019, when the matter was next before Thompson-James J for pretrial review, none of the case management orders made on 26 October 2017 had been complied with by the parties. Thompson-James J therefore extended the time for complying with the case management orders made on 26 October 2017 until 16 August 2019. The pre-trial review was adjourned until 26 September 2019. There was also an order for any further application touching and concerning expert witnesses to be dealt with at the adjourned pre-trial review date.
When the matter came up for pre-trial review before the learned judge on 26 September 2019, the notice of application to appoint Dr Kai Morgan as an expert witness was withdrawn. The trial date, previously for fixed for 14 to 16 October 2019, was confirmed. When the matter came up for trial before the learned judge on 14 October 2019, the trial was aborted and the claim reverted to chambers. The attorneys-at-law representing the parties do not agree on the reason for the aborting of the trial. On the appellant's account, it was to facilitate the respondent making an application for the amendment of the respondent's statement of case and appoint an expert witness. On the version of the respondent, the trial was aborted in the wake of an exchange between the learned judge and the legal representative for the appellant, consequent on the respondent raising, as a preliminary matter, the appellant's extant application for relief from sanction. It was ordered that the trial date of 16 October 2019 be vacated and the matter adjourned to 15 October 2019 for oral applications to be heard in chambers. Nothing appears to have happened on 15 October 2019.
On 16 October 2019, the respondent made oral applications in chambers. The oral applications in chambers were for the court to appoint Dr Kai A D Morgan as an expert in the proceedings; and to amend the further amended particulars of...
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