Daphne Alves Claimant v Attorney General of the Virgin Islands Defendant [ECSC]

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 24 October 2011
• Neutral Citation: VG 2011 HC 21
• Court: High Court (British Virgin Islands)
• Docket Number: Claim No. BVIHCV2007/0306
• Date: 24 October 2011

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Claim No. BVIHCV2007/0306

Daphne Alves

Claimant

and

The Attorney General of the Virgin Islands

Defendant

Appearances:

Mr. John Carrington of Mc W Todman & Co. for the Claimant

Mr. Baba Aziz, Attorney General (Ag.) for the Defendant

Public Authorities Protection — Limitation of time for bringing action — Nurse at Public Hospital injured while attending to elderly patient — Action not commenced within six months — Public Authorities Protection Act, Cap 62.

Principles of pleadings — Whether pleading of limitation defence adequate — Claimant filed no Reply to Defence — Is she barred from challenging pleadings?

On 9 April 2003, the claimant, a nurse at Peebles Hospital, was injured at her workplace when a hospital bed collapsed while she was attending to an elderly patient. On 17 December 2007 she sued the Government/Crown as her employer for damages for negligence alleging that she was an employee of the Government; she had been injured during the course of her employment and that the Government owed her a duty to take reasonable care for her safety.

The Attorney General (in his capacity as representative for the Crown under the Crown Proceedings Act, Cap 21) in his Defence admitted the negligence but denied the claimant's entitlement to damages alleging that she is not entitled to any of the relief sought by virtue of the combined effects of section 2 of the Public Authorities Protection Act, Cap. 62 and sections 2, 26 and 27 of the Crown Proceedings Act.

The claimant filed no Reply to the Defence. By affidavit, the Attorney General sought to adduce that the claimant's allegation of negligence engaged the statutory duty of the Government to conduct and maintain the hospital at the public expense pursuant to the Public Hospital Act, Cap 195 and, as such, the claim ought to have been commenced within the six month limitation period stipulated by the Public Authorities Protection Act.

At the (re)trial, the claimant argued that the limitation point was not properly pleaded as the Crown failed to raise the Public Hospital Act and specify the alleged public duty in the Defence and should not be allowed to bolster it in evidence or rely on it at trial. In any event, the claimant says that the argument was misconceived as her claim engaged the Crown's duty as employer.

The Crown argued that the limitation point was properly pleaded and that if the claimant wished to challenge the adequacy of the Defence, she should have filed a Reply and the claimant cannot at this late stage of the proceedings allege that the limitation defence has not been properly pleaded.

Held:

• 1. If the claimant wished to challenge the Defence, she should have filed a Reply: The proper place for meeting the defence is the reply. See: Pleadings: Principles and Practice by Jacob and Goldrein at page 161.

• 2. The limitation point was properly pleaded. Limitation statutes are required by law to be pleaded, but there is no such pleading requirement for other statutes, common law or equitable principles. The Court is entitled to take judicial notice of all Acts and subsidiary legislation and they are applied when relevant to the facts and circumstances of the case without the necessity of being pleaded: Phillips v Copping [1935] 1 KB 15, Interpretation Act Cap 136 section 49, Evidence Act 2006, section 126 applied; Njie and others v Amadou Cora (The Gambia) [1997] UKPC 41 and Nathalie Creque v Cecil Penn [Privy Council Appeal No. 36 of 2005] followed.

• 3. The Government's public duty under the Public Hospital Act is not engaged by the claim. The Public Hospital Act merely vests the land and appurtenances thereto that form the Hospital in the Government and the management in a Board. It does not address the employment of nurses. The claimant was a public officer as defined by the Constitution of the Virgin Islands and there is an employer/employee relationship between the Government and the claimant. The act of neglect or omission of duty alleged by the claimant is of a private, rather than a public character. She acted under a private contract of employment and the duty of care was owed to her personally and not to all the public alike: Bradford Corporation v Myers [1916] A.C.242; Griffiths v. Smith [1946] KB 600; Firestone Tire and Rubber Co. (S.S.) Ltd v Singapore Harbour Board [1952] A.C.452 and Andrew Thomas Bell v The Commissioner of Police of the British Virgin Islands (Civil Appeal No. 4 of 2001) applied. The claim is therefore not statute-barred as the Government is not entitled to the Protection of the Public Authorities Protection Act..

HARIPRASHAD-CHARLES J

1 The claimant, Daphne Alves was employed on 17 February 2000 by the Government of the Virgin Islands (‘the Government’) as a nurse and was assigned at the material time to Peebles Hospital. On 9 April 2003, she was injured at her workplace when the hospital bed collapsed. At the time, she was attending to an elderly patient suffering from Alzheimer's disease. On 17 December 2007, she sued the Attorney General of the Virgin Islands (in his capacity as legal representative of the Crown under the Crown Proceedings Act, Cap. 21) for damages as a result of the injuries which she suffered. The material pleadings were that she was an employee of the Government 1; she was injured during the course of her employment 2 and, as her employer, the Government owed her a duty to take reasonable care for her safety. 3

2 In his Defence, the Attorney General admitted all the particulars of the statement of claim except Mrs. Alves' entitlement to interest at common law. The Attorney General further pleaded as follows:

‘3. The Defendant as statutory legal representative of the Crown, in right of its Government of the Virgin Islands, pleads section 2 of the Public Authorities Protection Act (Cap. 62) and sections 2.26 and 27 of the Crown Proceedings Act (Cap. 21).

4. The Defendant states, in answer to the entire claim, that the Claimant is not entitled to any of the relief sought in the statement of claim or at all by virtue of the combined effects of the above-named Acts, in that, the claim herein was filed on 17 ^th day of December 2007, that is more than six (6) months after the neglect or failure of the Crown to, among other things, provide and maintain proper plant and equipment at Peebles Hospital and the resultant injury to the Claimant on 9 ^th April 2003.’

3 Two issues arise out of the pleading namely:

Whether the Attorney General had sufficiently pleaded that Mrs. Alves' remedy was barred as a result of section 2 of the Public Authorities Protection Act (‘PAPA’);4 and 1 See Tab. 2 of Trial Bundle lodged on 18 December 2008 -and more specifically, paragraph 1 of Statement of Claim. 2 Ibid, paragraphs 3 and 4. 3 Ibid, paragraph 6. 4 Cap. 62 of the laws of the Virgin Islands, 1997. 2. If that Defence was properly raised on the pleadings, whether the provisions of PAPA apply so as to bar the remedy to Mrs. Alves.

1 The background

4 The facts of this claim are wholly undisputed. On 17 February 2000, Mrs. Alves commenced employment with the Government as a nurse and at the material time, she was assigned to Peebles Hospital.

5 On 9 April 2003, she was injured whilst attending to an elderly patient suffering from Alzheimer's disease. She tried to prevent him from being injured when his bed collapsed under him.

6 The Government has never denied liability for the claim. Indeed, they paid Mrs. Alves' medical expenses until May 2006.

7 On 17 December 2007, Mrs. Alves commenced these present proceedings against the Attorney General for damages for the injuries she alleged that she sustained. She alleged that, as her employer, the Government owed her a duty to take reasonable care for her safety including providing and maintaining proper plant and equipment, competent employees and a safe system of work at her place of employment.

8 On 23 January 2008, the Attorney General filed a Statement of Defence admitting the existence of a cause of action in negligence but denied that Mrs. Alves is entitled to the remedy sought since her injuries were sustained on 9 April 2003 which was outside the six-month limitation period prescribed by section 2 of the PAPA for bringing claims against public authorities.

9 Mrs. Alves did not file a Reply to the issue of limitation raised by the Attorney General.

10 On 17 March 2008, the Attorney General filed a Notice of Application seeking Reverse Summary Judgment on the claim. This was supported by the affidavit of Arlyn Gordon-VanSickle. Paragraphs 3 and 4 of the affidavit are relevant.

‘3. That the Hospital was created as a public hospital by the Public Hospital Act (Cap 195) of the Laws of the Virgin Islands. The Government has a statutory duty under the Act to conduct and maintain the Hospital at the public expense.

4. The Respondent (Claimant)'s allegation of negligence engages this statutory duty of the Government to conduct and maintain the Hospital at the public expense, and as such the claim ought to have been commenced within the six (6) months limitation period stipulated by the Public Authorities Protection Act (Cap 62) of the Laws of the Virgin Islands….’

11 At the hearing of the application for summary judgment, the learned Master struck out both paragraphs on the basis that there was no sufficient pleading in the Defence to support them. The Master also refused to grant reverse summary judgment against Mrs. Alves.

12 The matter came up for trial on 13 October 2008. The Court was asked to deal with an application by Mrs. Alves filed on 8 October 2008 to strike out the following evidence in a witness statement from David Archer, Director of Human Resources:- ‘4. The Claimant was assigned to the Peebles Hospital, a Public Hospital established by the Public Hospital Act Cap...