Carlos Medeiros v Island Construction Services Company Ltd

• Jurisdiction: Bermuda
• Judge: Kawaley, C.J.
• Judgment Date: 09 March 2018
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION 2010: No. 66
• Date: 09 March 2018

[2018] SC (Bda) 22 Civ

IN THE SUPREME COURT OF BERMUDA

Kawaley, C.J.

CIVIL JURISDICTION 2010: No. 66

Carlos Medeiros

Plaintiff

and

Island Construction Services Co. Ltd.

1 ^st Defendant

-and-

Antwone Leroy Simons

2 ^nd Defendant

-and-

The Bermuda Hospitals Board

3 ^rd Defendant/3 ^rd Party

-and-

Dr Steven Dore

4 ^th Defendant/1 ^st 4 ^th Party

-and-

And Dr. Matthew Arnold

5 ^th Defendant/2 ^nd 4 ^th Party

Mr. Craig Rothwell, Cox Hallett Wilkinson Ltd., for the Plaintiff

Mr. Jeffrey Elkinson and Mr. Scott Pearman, Conyers Dill & Pearman Ltd., for the 1 ^st and 2 ^nd Defendants (D1–2)

Mr. Allan Doughty, Beesmont Law Limited, for the 3 ^rd Defendant/3 ^rd Party (“BHB”)

Mr. Paul Harshaw, Canterbury Law Ltd., for the 4 ^th and 5 ^th Defendants/4 ^th Parties

Costs-unsuccessful negligence claim against hospital and doctors-whether hospital's conduct of defence impacts on its right to recover costs of successful defence-whether hospital liable to pay doctors' costs-failure to promptly notify claimants of medical expert's change of position-failure to instruct medical expert to promptly comment on other reports-consequences of claimants' failure to abandon medical negligence claim in the absence of supporting expert evidence

RULING ON COSTS

(in Chambers)

Introductory

1 By an Amended Generally Endorsed Writ of Summons issued on February 17, 2010, the Plaintiff claimed damages for the negligence of D1–2 in relation to a collision on or about March 10, 2006 between a vehicle owned by D1 and driven by D2 and a truck which was propelled into the vehicle being driven by the Plaintiff, thereby causing him personal injuries. Alternatively, the Plaintiff claimed additional damages for the negligence of BHB, the 4 ^th and 5 ^th Defendant (“D4” and “D5”) during and after a hernia repair operation on December 10, 2008.

2 D1 and D2 having admitted liability, the Plaintiff relied upon the claim advanced by D1 and D2 against BHB and D4 and D5 based on the premise that the negligence of the Hospital and the doctors who treated the Plaintiff after the hernia repair surgery carried out on December 10, 2008 caused or contributed to the damage the Plaintiff complains of in the present proceedings. D1 and D2 had initially joined BHB as a Third party, and BHB in turn joined D4 and D5 as Fourth and Fifth parties. On December 6, 2017, I delivered a Judgment which concluded as follows:

• “ 91. The case on liability against BHB and D4–5 is dismissed. D1–2 advanced the central thesis that the Plaintiff's December 10, 2008 hernia repair surgery was only reversed because of (a) a delayed surgical intervention, which was caused by (b) a failure to diagnose post-operative bleeding. The primary case that the Plaintiff's main post-operative complaint was bleeding was rejected and no coherent alternative case was advanced. I shall hear counsel if necessary as to costs and the terms of the final Order.

• 92. It may be helpful if I set out my provisional views on the appropriate costs order. It is difficult to see why costs, as between the Original Defendants (D1–2) and the vindicated hospital and doctors, subject to one important caveat, should not follow the event. The one caveat is my strong provisional view that BHB acted unreasonably in failing to ensure that Dr Winters was given, in particular, Dr Arnold's Witness Statement which was apparently available in early 2013. Dr Winters provided a Supplementary Report in September 2017 because he was only given this Witness Statement and other relevant documentation in the months or weeks immediately preceding the trial.

• 93. If an expert has a duty to notify any change of opinion to the parties and the Court as soon as possible (reference was made at trial to the Supreme Court Practice paragraph 38/4/3), a party must be under a corresponding duty to ensure that its expert is promptly supplied with information which might cause an expert to change his opinion. On the face of it, this duty does not seem to have been met and the case against D5 was maintained by D1–2 on the assumption that it would be supported by BHB's expert Dr Winters. The logical consequence would appear to be, subject to hearing counsel if required, that BHB should not be entitled to recover its costs in relation to its successful defence of the claim based on the negligence of D5.

The disputed issues relating to costs

3 It was agreed that the doctors were entitled to have their costs paid by someone, the case that they had caused or contributed to the Plaintiff's current medical condition failed. The most obvious candidates were D1–2, the only parties (other than the passive Plaintiff) who had actively advanced the case of medical negligence which failed.

4 The following issues were raised for determination:

• (1) by D1–2 against BHB: whether the fact that BHB's expert evidence up to January 2017 (as regards D4) and August 2017 (as regards D5) supported D1–2's case that the doctors were negligent displaced the usual rule that costs should follow the event. D1–2 proposed that there should be no order as to costs as between themselves and BHB and that, most surprisingly, BHB should pay the doctors' costs;

• (2) by D1–2 against BHB: whether, in the alternative to there being no order as to all of BHB's costs, should there be a more limited costs penalty relating to the mismanagement of the expert witnesses Dr Winters and Dr Warshaw;

• (3) by D5 against D1–2: whether D5 should recover his costs on an indemnity basis from August 21, 2017. Because there was from that date no expert evidence supporting a case that D5 was negligent. D1–2 therefore ought to at that juncture have abandoned their case against D5;

• (4) by BHB against D1–2: whether BHB should recover its costs on an indemnity basis because of the manner in which Mr Collin gave his evidence.

Indemnity costs claim by BHB against D1–2

5 As I indicated in the course of argument, there was nothing to the complaints Mr Doughty made about the conduct of Mr Collin. No criticism was made of this expert in the Judgment. His evidence was simply rejected. This application is summarily refused.

Indemnity costs claim by D5 against D1–2

6 On August 22, 2017 BHB disclosed that Dr Winters wished to file an amended Report which would not suggest that D5 had been negligent. This was on the basis that Dr Winters had only recently learned of crucial communications between D5 and D4 about the Plaintiff's condition. Mr Doughty informed the Court that he had learned of this change of position the previous evening, the day before Dr Winters had been scheduled to testify.

7 At the end of the hearing on August 22, 2017 I made the following directions:

• (a) BHB was granted leave to file an amended Expert Report from Dr Winters within 14 days;

• (b) I also granted leave to D1–2 and D5 to file and serve any responsive expert evidence against D5 not less than 28 days before the resumed hearing.

8 On September 4, 2017 Dr Winters prepared a Supplemental Report which made it clear that he did not consider that D5 had been negligent. On September 13, 2017, the parties were notified that the trial would continue on Tuesday November 14, 2017. The last date for D1–2 to file expert evidence in response to Dr Winters asserting a positive case against D5 was Tuesday October 14, 2017, 28 days before the rescheduled trial. On October 18, 2017, Canterbury Law Limited wrote D1–2's attorneys in the following crucial terms:

“… As matters stand there is no anaesthetic or intensivist expert giving evidence that Dr Arnold was in any way at fault for what happened to Carlos Medeiros….

The purpose of this letter now is to invite your clients to voluntarily discontinue this action against Dr Arnold without delay on the basis that there simply is no credible evidence of wrongdoing on his part.

Please will you respond to this letter as a matter of urgency.”

9 There was no response to this letter and D1–2 ploughed ahead. In the event I recorded the following pivotal finding in respect of their case against D5:

• “ 79. I have little difficulty in recording a positive finding that Dr Arnold did not breach his duty of care to the Plaintiff”

10 Order 1A/2 obliges the Court to apply the Overriding Objective when exercising any power conferred by the Rules. Order 62/3 obliges the parties to assist the Court to achieve the Overriding Objective. Order 62 rule 12 confers a discretionary power in relation to awarding costs on either the standard or the indemnity basis. It was inconsistent with the obligations of D1–2 under Order 1A of the rules to continue the case against D5 after deciding on or about October 14, 2017 at the latest not to adduce expert evidence against D5. At that point it became obvious that Professor Aitkenhead's evidence in support of D5 would be supported by Dr Winters on behalf of BHB. The discretion as to whether or not to award indemnity costs is a flexible one. In American Patriot Insurance Agency Inc v Mutual Holdings (Bermuda) Ltd. [2012] Bda LR 23, Evans JA (delivering the judgment of the Court of Appeal) stated:

• “ 29. In our judgment, it would be wrong to say that indemnity costs should be ordered in every case where fraud is proved, but equally wrong to suggest that they can only be ordered when the proceedings have been misconducted by the losing party. Both ‘the way the litigation has been conducted’ and the ‘underlying nature of the claim’ (per Kawaley J in Lisa SA v Leamington and Avicola at para 6) may be relevant in determining whether or not the circumstances are such as to make an indemnity costs order just.”

11 I award D5 his costs against D1–2 incurred after October 14, 2017 on an indemnity basis.

BHB's costs in relation to Dr Winters

12 Mr Doughty advised the Court on August 22, 2017 that Dr Winters' change of opinion since his 2013 initial Report was based on a combination of:

• • reading the other Reports, in...