Hill-Cross v Bermuda Hospitals Board
| Jurisdiction | Bermuda |
| Judgment Date | 14 January 2015 |
| Neutral Citation | [2015] SC Bda 6 Civ |
| Date | 14 January 2015 |
| Docket Number | CIVIL JURISDICTION 2012: No 448 |
| Court | Supreme Court (Bermuda) |
[2015] SC (Bda) 6 Civ
In the Supreme Court of Bermuda
CIVIL JURISDICTION 2012: No 448
Ms Arisha Flood, AAF & Associates, for the Plaintiff
Mr Allan Doughty, Isis Law Ltd, for the Defendant
RULING
(In Chambers)
By summons dated 30 th September 2014 the Defendant seeks an order that the Plaintiff's re-amended specially endorsed writ claiming damages in negligence for personal injury be struck out pursuant to Order 18, rule 9 of the Rules of the Supreme Court 1985 (‘RSC’) and/or under the inherent jurisdiction of the Court on the grounds that allegedly it discloses no reasonable cause of action; is frivolous and vexatious; will tend to embarrass and delay the proceedings; and amounts to an abuse of the Court's process.
The Plaintiff was at all material times employed by the Defendant as a nurse's aide at the King Edward VII Memorial Hospital (‘the Hospital’). On 29 th April 2009 she was on duty there at the nurses' station in Cooper's Ward. It is her case that she was sitting studying the manuals in the station in preparation for a weekly quiz regarding various diseases. She got up to get another manual, but as she sat back down a colleague, Pedmini Lall, moved the chair from behind her. She fell heavily to the floor, landing on her backside. She alleges that Ms Lall moved the chair deliberately. On the Plaintiff's case, Ms Lall presumably did so a practical joke, because both she and another nurse who was present were laughing at the Plaintiff's fall. Ms Lall was a registered nurse and thus in a more senior position than the Plaintiff.
The Defendant admits that Ms Lall moved the chair when the Plaintiff was standing, but not as she was about to sit down, and avers that Ms Lall did not appreciate that the Plaintiff had intended to return to the seat. The Defendant alleges that the Plaintiff was the author of her own misfortune in that she should have looked to make sure that the chair was still there before attempting to sit back down. It is only fair to point out that Ms Lall, who is not a party to these proceedings, is no longer working in Bermuda and has not had the opportunity to respond to these allegations.
Following her fall, the Plaintiff experienced pain and discomfort around the base of her spine. She sought medical treatment at the end of her shift and subsequently. On 6 th May 2009 she attended the Defendant's Employee Health Services (‘EHS’), where she was seen by Dr Katherine Michelmore, who signed her off work for one week. On 13 th May 2009 she attended EHS for review, and Dr Michelmore recommended that she should return to work but perform no unassisted lifting.
On 20 th May 2009 the Plaintiff again attended EHS. Following a referral from Dr Michelmore, on 21 st May 2009 she attended the fracture clinic, where Dr Panagal Chelvam diagnosed a case of coccydynia. Although there is some confusion on the papers, the contemporary records suggest that he certified her as fit for work but recommended that she undertake only light duties until 26 th May 2009. Dr Michelmore obtained clarification from Dr Chelvam that ‘ light duties’ meant no unassisted lifting and advised the Plaintiff's supervisor, Nurse Sheila Whittaker, accordingly.
The Plaintiff alleges in her pleaded case that upon her return to work she repeatedly asked Nurse Whittaker that she be assigned to light duties until her symptoms improved, but to no avail. It is unclear whether this allegation relates to the period before or after 26 th May 2009, or to both.
The Plaintiff claims that her injuries were exacerbated by a further incident which took place on 30 th May 2009. The incident is described thus in the re-amended statement of claim.
5. The Plaintiff on 30 th May, 2009 was working in Cooper Ward, when an elderly and obese male patient by the name of Mr [A] who had just been released from ICU required assistance for a sponge bath, change of clothes, and change of bed linen. The patient was approximately 5 feet 11 and weighed approximately 260 pounds and was aged 70 years old. The patient was drenched in his own urine and had been left immobile in his bed for over an hour in that condition. Mr [A]'s wife was also present and was most concerned that her husband was attended to.
6. As the Plaintiff was attempting to change the sheets of the patient, the patient stood up from his bed and he started to urinate blood and urine involuntarily; and in a state of panic, the patient gripped the plaintiff putting all his weight on her. The Plaintiff was put in the position to help the male patient unassisted to sit down back on his bed: thus causing the Plaintiff to experience a feeling that her ‘insides had dropped’ which was injury subsequent to the first accident on 29 April 2009.
Under the particulars of negligence in the re-amended statement of claim the Plaintiff further alleged that earlier during her 1 shift [A] was in ‘ excruciating pain’.
The Plaintiff has confirmed this account in her reply and in an affidavit dated 12 th March 2013. She exhibits to the affidavit a manuscript document marked RLEHC-5 which was annexed to a workmen's compensation/short term disability claim form signed by her dated 25 th June 2009. The document, which is written in the first person, presumably by her, gives a slightly different account of the incident:
I was asked to attend to a patient who was drenched in urine. His wife was irate and verbally attacked the nurse. I needed assistance. The patient was very upset and had been in extreme pain all morning. I told the nurse I needed assistance twice. She was attending to patients and said she'd be in. The wife wanted her husband done immediately. I started bathing the patient with the wife wanting to assist. The patient was extremely upset thus making mobility difficult. His sheets were drenched in urine and had to be moved. The wife and I had difficulty moving him (and the linen from under him) and eventually assisted him in standing. At that point I felt extreme pressure and pain in my rectum and pelvic areas and I felt like my insides had dropped. The patient started to panic again as urine and blood poured out of him onto the floor. His wife and I repositioned him on the bed and I called the nurse who immediately came.
In the account in the pleadings the Plaintiff is injured when the patient, who has stood of his own volition and unaided, grips the Plaintiff and puts all his weight on her. In the account in the workmen's compensation/short term disability form the Plaintiff is injured as she assists the patient in standing and there is no mention of the patient placing all his weight upon her.
The Plaintiff had only recently joined the Hospital. On 14 th April 2009 she attended a half day class on bed bathing and making, which included both a theoretical and a practical component. The purpose of the class was to teach all incoming nurse's aides techniques which would protect both the patient and the caregiver from injury while the patient was being bathed or moved so that the caregiver could change the patient's bedding. There is a conflict of evidence between Phyllis Hayward, who taught the class, and the Plaintiff, as to whether the Plaintiff was given the opportunity to practice these techniques during the class. However it is not disputed that Ms Hayward warned all the attendees, including the Plaintiff, not to attempt to move or lift a patient without the assistance of another staff member so as to avoid injury to their backs.
The Plaintiff was due to attend an all-day class on manual handling on 12 th May 2009. However she was unable to do so as on account of her injury she was off work that day.
The principles applicable to striking out are not in dispute. They were summarised by the Court of Appeal in Broadsino Finance Co Ltd v Brilliance China Automotive Holdings Ltd [2005] Bda LR 12. Stuart-Smith JA, giving the judgment of the Court, stated at 4 – 5.
Where the application to strike-out on the basis that the Statement of Claim discloses no reasonable cause of action (Order 18 Rule 19(a)), it is permissible only to look at the pleading. But where the application is also under Order 18 Rule 19(b) and (d), that the claim is frivolous or vexatious or is an abuse of the process of the court, affidavit evidence is admissible. Three citations of authority are sufficient to show the court's approach. In Electra Private Equity Partners (a limited partnership) v KPMG Peat Marwick [1999] EWCA Civ 1247, at page 17 of the transcript Auld LJ said: ‘It is trite law that the power to strike-out a claim under Order RSC Order 18 Rule 19, or in the inherent jurisdiction of the court, should only be exercised in plain and obvious cases. That is particularly so where there are issues as to material, primary facts and the inferences to be drawn from them, and where there has been no discovery or oral evidence. In such cases, as Mr Aldous submitted, to succeed in an application to strike-out, a defendant must show that there is no realistic possibility of the plaintiff establishing a cause of action consistently with his pleading and the possible facts of the matter when they are known….. There may be more scope for an early summary judicial dismissal of a claim where the evidence relied upon by the Plaintiff can properly be characterised as shadowy, or where the story told in the pleadings is a myth and has no substantial foundation. See eg Lawrence and Lord Norreys (1890) 15 Appeal Cases 210 per Lord Herschell at pages 219–220’. In National Westminster Bank plc v Daniel [1994] 1 All ER 156 was a case under Order 14 where the Plaintiff was seeking summary judgment, but it is common ground that the same approach is applicable. Glidewell LJ, with whom...
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