Medeiros v Island Construction Services Company Ltd and Ors

• Jurisdiction: Bermuda
• Judgment Date: 25 November 2016
• Date: 25 November 2016
• Docket Number: Civil Jurisdiction 2010 No 55
• Court: Supreme Court (Bermuda)

[2016] Bda LR 130

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No 55

Between:

Carlos Medeiros

Plaintiff

and

Island Construction Services Co Ltd

1^st Defendant

Antwone Leroy Simons

2^nd Defendant

Bermuda Hospitals Board

3^rd Defendant

Dr Steven Dore

4^th Defendant

Dr Matthew Arnold

5^th Defendant

Mr C Rothwell for the Plaintiff

Mr J Elkinson for the 1^st and 2^nd Defendants

Mr A Doughty for the 3^rd Defendant

Mr P Harshaw for the 4^th and 5^th Defendants

The following cases were referred to in the judgment:

Williams v Bermuda Hospitals Board [2013] Bda LR 1

Bermuda Hospitals Board v Williams [2014] Bda LR 22

Tai Hing Cotton Mills v Liu Chong Hing Bank [1986] AC 80

Snowden v Emery, Dyer and Bermuda Hospitals Board [2014] Bda LR 92

Henderson et al v Merrett Syndicates Ltd et al [1995] 2 AC 145

FFSB Limited v Seward & Kissell LLP [2007] UKPC 16

Patton and Cook v Bank of Bermuda Limited [2011] Bda LR 34

Strike-out application — Negligence — Contractual relationship — Whether concurrent liability in contract and tort exists

RULING of Kawaley CJ

The Application

1. By a Summons dated 22 June 2016, BHB applies to strike-out the Plaintiff's Amended Generally Endorsed Writ and Amended Statement of Claim, as they relate to the 3rd Defendant/3rd Party and the 1^st and 2^nd Defendants' Amended Third Party Notice on the grounds that they disclose no reasonable cause of action. The application arises against the following background, which is helpfully set out in Mr Doughty's Written Submissions.

2. The Plaintiff was seriously injured in a road traffic accident when his vehicle was struck by a truck owned by the 1^st Defendant and driven by the 2^nd Defendant. The Defendants admitted negligence but denied responsibility for the damage sustained by the Plaintiff subsequent to the operation on the Plaintiff on 10 December 2008. They issued a Third Party Notice against BHB on or about 16 March 2011 (which was amended on or about 27 April 2011) alleging that BHB was negligent. An indemnification was sought in respect of damage sustained by the Plaintiff “[a]s a consequence of the negligence and breach of duty of the Third Party”.

3. Paragraph 7 of BHB's Amended Defence dated 21 June 2012 averred as follows:

“(d) That the relationship between the Plaintiff and the First Fourth Party and Second Fourth Party was contractual, therefore any cause of action against the First Fourth Party and Second Fourth Party by the Plaintiff should be pursued as being a breach of contract. The relationship between the Plaintiff and the Third Party was the subject of a separate contract whose implied terms allowed for the provision of drugs, dressings and whatever else was necessary to assist the patient in his recovery from the surgery. As the Third Party is a stranger to the contract between the Plaintiff and the First Fourth Party and Second Fourth Party, it is averred that the Third Party cannot be held liable for any breach of duty which did in fact transpire.”

4. This plea formally addressed the liability to the Plaintiff only, but by necessary implication addressed the corresponding liability to the 1^st and 2^nd Defendants as well, being pleaded in response to their Third Party Notice. BHB's Re-Amended Fourth Party Notice advanced the central plea that its relationship to the surgeons was merely contractual so that it could not be vicariously liable for their negligence in tort.

5. On 22 January 2014, I ruled that BHB owed the Plaintiff a non-delegable duty of care following, inter alia, the decision of Hellman J in Williams v Bermuda Hospitals BoardBDLR[2013] Bda LR 1 (at paragraphs 85–86). Hellman J's finding that this duty of care was breached (at paragraph s 93–108) was upheld by the Court of Appeal for Bermuda (Sir Austin Ward JA) and the BHB cross-appeal on the scope of the duty of care was summarily dismissed (Bermuda Hospitals Board v WilliamsBDLR[2014] Bda LR 22 at paragraphs 43–44). On 21 July 2014, the Plaintiff himself joined BHB as 3rd Defendant alleging, inter alia, the breach of a non-delegable duty of care. On 8 August 2014 BHB sought Further Better Particulars of the Plaintiff's claim against it. On 10 December 2014 the limitation period for a contractual claim by the Plaintiff against BHB expired. On 8 April 2016, the Plaintiff finally served his Further and Better Particulars. Mr Doughty explained that service of these Particulars, combined with the long awaited judgment of the Judicial Committee of the Privy Council in Williams v Bermuda Hospitals BoardUNK[2016] UKPC 4 (25 January 2016, a judgment which dealt solely with the issue of causation), focussed the attention of BHB once more on the significance of the character of the Third Party claim. BHB filed its Amended Defence to the Amended Statement of Claim on or about May 20, 2016.

6. It was in short contended by BHB in its present application that both the Amended Writ and Statement of Claim and the Amended Third Party Notice were liable to be struck-out because they pleaded the wrong claim, namely a claim in tort rather than a claim in contract.

The respective arguments

7. Mr Doughty argued that “if one has a claim against a professional man with whom one holds a contract, a claim for breach of duty against that professional man should only be brought in contract” (‘Written Submissions of the Third Party/Third Defendant’, paragraph 3.2). He relied in this regard in terms of broad principle upon the speech of Lord Scarman in Tai Hing Cotton Mills v Liu Chong Hing BankELR[1986] AC 80 at 107 (Privy Council) as approved by the Court of Appeal for Bermuda in White v Conyers Dill & PearmanBDLR[1994] Bda LR 9. More specifically, by way of illustrating the application of these general principles to the particular context of medical negligence claims, BHC's counsel relied upon their application by Hellman J in Snowden v Emery, Dyer and Bermuda Hospitals BoardBDLR[2014] Bda LR 92 (at paragraph 52).

8. Mr Elkinson, after (to my mind unconvincingly) contending that a claim in contract had already been pleaded, vigorously contested the umbrella...