Jacqueline Pena Jasper de Jesus Claimants/Applicants v British Virgin Islands Health Services Authority Defendant/Respondent
| Jurisdiction | British Virgin Islands |
| Judge | Tabor, M (Ag.),Charlesworth Tabor |
| Judgment Date | 22 May 2013 |
| Neutral Citation | VG 2013 HC 18 |
| Judgment citation (vLex) | [2013] ECSC J0522-8 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO. BVIHCV2012/0101 |
| Date | 22 May 2013 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Master Charlesworth Tabor (Ag.)
CLAIM NO. BVIHCV2012/0101
Mr. Paul Webster QC with Miss Jameyla Fahie and Rhonda Brown of O'Neal Webster for the Claimant
Mr. Terrance Neale with Miss Sonya Smith of McW. Todman & Co. for the Defendant
This is an application for assessment of damages.
By Claim Form with Statement of Claim filed on 13 th April, 2012 the claimant claims against the defendant British Virgin Islands Health Services Authority for (i) damages for negligence and/or breach of statutory duty and/or conversion; (ii) special damages in the sum of $4,085.00 to date; (iii) aggravated damages; (iv) exemplary damages; (v) further or other relief and (vi) costs.
On 24 th September, 2012 at a case management conference, the court at the suggestion of the defendant made an order that judgment on admissions be entered for the claimants with damages to be assessed since the issue of liability was not disputed in the defence. The assessment of damages hearing was convened on 17 th December, 2012.
The background facts are generally not in dispute except for the manner in which the body of the baby was disposed. Since both learned Counsel have presented accounts in their submissions which are largely in congruence, I will gratefully adopt them and for completeness will present an overview.
The claimants, Miss Jacqueline Pena and Mr. Jasper de Jesus, were the mother and father of a female child born at the Peebles Hospital in Road Town, Tortola on 9 th September, 2011. The death of their baby occurred within two hours of birth of natural causes. With respect to the death, no allegation of negligence has been made against the defendant.
The British Virgin Islands Health Services Authority is a statutory body responsible for the management and operation of public health care services in the British Virgin Islands, including the management and operation of the Peebles Hospital where the claimants' baby was born.
Following the baby's death the claimants gave their consent for a post mortem examination to be conducted to determine the cause of death of the baby. The baby's body was then placed in the morgue at the Hospital to await the post mortem examination.
Post mortem examinations in the British Virgin Islands are conducted by a visiting pathologist since there is no resident pathologist on the island. When the overseas pathologist visited the island on 12 th October, 2012 to perform the post mortem examination, the defendant discovered that the baby's body was missing from the morgue. The claimants were not immediately informed of this development since the defendant was conducting internal investigations to ascertain the whereabouts of the baby's body.
The claimants were advised subsequently that the body of their baby was disposed of in error. The reason for the error resulting from the fact that there were two dead babies at the morgue and authority was given to the defendant by the mother of one of the babies to dispose of the body in a manner that it saw fit. The defendant, however, disposed of the daughter of the claimants for which no authority was given.
On 16 th October, 2011 the claimants were invited to a meeting at the Hospital which was attended by members of the Hospital's Board and members of staff. It was during this meeting that the claimants were informed that their baby's body had been missing from the morgue since 12 th October, 2011. It was at this meeting as well that the claimants were told by the Hospital that their baby's body was cremated in error and that an investigation into the matter was being undertaken. The claimants requested the ashes from the cremation but were informed by the Hospital that the ashes had been thrown away.
Learned Counsel for the claimants has urged the court to reject the defendant's allegation of cremation and instead accept the claimants' contention that their baby's body was incinerated at the public garbage dump in Tortola.
On 13 th April, 2012 the claimants brought the present action against the defendants seeking damages for the injuries they allegedly suffered as a result of the wrongful disposal of their baby's body.
The defendant filed a defence in the matter on 15 th May, 2012 in which it admitted that its servants and/or agents had been negligent in the disposal of the claimants' baby's body because no authority had been given to them to dispose of the same.
In support of the assessment of damages the claimants filed the following evidence:
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(a) The witness statement of Jasper de Jesus filed on 10 th December, 2012;
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(b) The witness statement of Jacqueline Pena filed on 10 th December, 2012;
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(c) The unfiled psychological report of Dr. Mc Ananey dated 11 th December, 2011 and
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(d) The filed psychological report of Dr. Mc Ananey dated 12 th December, 2012.
The issues to be determined by the court on the assessment of damages are as follows:
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(i) Whether the claimants have suffered any loss as a result of the defendant's wrongful disposal of their baby's body; and
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(ii) Assuming that the claimants have suffered loss what is the appropriate measure of damages that the court should award them to compensate them for their loss.
In his submissions learned Queen's Counsel Mr. Paul Webster paid some attention to the disposal of the body since this is really the fundamental issue of the matter. He noted that the disposal of the body lies within the peculiar knowledge of the Hospital. The latter informed the claimants, without giving any details, that their daughter's body was cremated in error and that they were investigating the matter. When the claimants asked for the ashes from the cremation they were told that it was thrown away. Learned Queen's Counsel has therefore invited the court to reject the Hospital's allegation of cremation and accept the claimants' case that the body was incinerated.
Learned Counsel then submitted that even if the court does not make the actual finding of incineration, the important point to note is that the claimants believed, on reasonable grounds, that the body was incinerated and this contributed significantly to their extreme depression. Learned Counsel also noted that in the absence of the post mortem examination the cause of death will never be determined. As a consequence, the claimants would have lost the chance to show whether the Hospital should be held responsible for the death of their baby as well as the wrongful disposal of the body.
With respect to the medical evidence, learned Queen's Counsel submitted that the claimants were examined by Dr. Ronald W. Mc Ananey, a clinical psychologist who has been practising in the British Virgin Islands for over 20 years. Dr. Mc Ananey treated the claimants in 25 sessions between 22 nd October, 2011 and 25 th January, 2012 prior to the commencement of the claim in April, 2012 and again in November, 2012 for a follow-up report. Learned Counsel also submitted that pursuant to the court's direction for the assessment of damages on 24 th September, 2012, the claimants made themselves available for psychological examination by the defendant's medical expert but the defendant never pursued this offer and as a consequence the court only has before it the medical evidence of Dr. Mc Ananey.
In his evidence Dr. Mc Ananey has outlined the injuries suffered by the claimants as follows:
Jacqueline Pena (First Claimant)
(i) Post-traumatic stress disorder;
(ii) Adjustment disorder with mixed anxiety;
(iii) Complicated grief and intense grief;
(iv) Loss of sleep;
(v) Disturbed sleep patter accompanied by nightmares and headaches; and
(vi) Severe depression accompanied by suicidal thoughts.
Jasper De Jesus (Second Claimant)
(i) Post-traumatic stress disorder;
(ii) Adjustment disorder with depressed mood;
(iii) Complicated and intense grief;
(iv) Loss of sleep and appetite;
(v) Auditory and visual fantasies; and
(vi) Inability to concentrate and follow through on tasks.
With respect to the first claimant, Dr. Mc Ananey has noted the impact on her of the death of her daughter and the knowledge of the incineration of the body. He opined that the death was difficult for her, but that her feelings of loss and despair intensified upon learning that her daughter's body was missing. This situation was aggravated by the likely incineration of her daughter's body causing her more hurt and anger and feelings that her baby was treated like trash. Dr. Mc Ananey further noted that the first claimant was overwhelmed with sadness as a result of the manner in which the baby's body was disposed of and that that situation is compounded by her inability to bury her child and achieve some closure. Coupled with that, Dr. Mc Ananey indicated that the first claimant experiences anxiety about becoming pregnant again due to the lack of information on the cause of her daughter's death as no autopsy was done.
In the case of the second claimant, Dr. Mc Ananey has indicated that he has a cardiac mal-function which is controlled by medication, but since learning of the baby's incineration he has been experiencing physical discomfort in his chest. The second claimant is described by Dr. Mc Ananey as one who internalizes his feelings in an attempt to cope with the situation and minimize upsetting the first claimant. However, Dr. Mc Ananey noted that this could intensify his depression and increase the risk for cardiac complications. Like the first claimant, the second claimant also...
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