Donna Enile v MIC Institute of Technology Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Mme Justice Karen Reid
• Judgment Date: 23 October 2023
• Neutral Citation: TT 2023 HC 323
• Docket Number: Claim No.: CV2019-03370
• Court: High Court (Trinidad and Tobago)

Between

Donna Enile

Claimant

and

MIC Institute of Technology Limited

Defendant

Before

The Honourable Mme Justice Karen Reid

Claim No.: CV2019-03370

IN THE HIGH COURT OF JUSTICE

Appearances:

Claimant: R. Simon

Defendant: S. Bidaisee instructed by R. Jaggernauth

DECISION ON THE APPLICATIONS FILED BY THE CLAIMANT ON FEBRUARY 28, 2023 AND THE APPLICATION FILED BY THE DEFENANT ON MAY 3, 2023.

Procedural History

1 By Claim Form and Statement of Case filed on August 21, 2019, and Amended on December 9, 2019, the Claimant brought proceedings against the Defendant company, with which she was employed, in respect of a fall which she alleged had occurred at her workplace on June 13 2018. She brought her claim in negligence alleging breach of her employer's duty of care to provide a safe place of work, inter alia, and sought damages in respect of myriad personal injuries she alleged was suffered as a result of the accident. Attached to her Statement of Case were a number of medical reports from various medical doctors.

2 On November 1, 2019, the Defendants filed a Defence, which was Amended on January 6, 2020, and Re-Amended with leave of the Court on February 3, 2022, disputing the claim, and averring that it was not negligent, had discharged its common law duty of care to the Claimant and that if the Claimant did fall it was due to her own negligence. The Defendant also disputed the Claimant's medical reports on a number of bases, including that the Claimant had concealed pre-existing injuries which required surgery and some of which were the subject of prior court proceedings against a former employer, and averred that if the Claimant was injured it was due to those pre-existing injuries and not the alleged fall.

3 The matter proceeded to case management and directions were given, inter alia, for the filing of witness statements. Specifically, on January 12, 2021, the Court ordered that: “The parties file and exchange witness statements to be used as examination in chief by 30 June 2021 and in default no evidence would be allowed in respect of any witness for whom a witness statement has not been filed.”

4 The Defendant filed five (5) witness statements, including one from a witness who was later appointed as an expert witness, and one Hearsay Notice.

5 The Claimant filed one witness statement (her own) and fifteen Hearsay Notices in respect of various medical reports, sick leave certificates, a receipt from a pharmacy and an invoice from one of the medical doctors. The Claimant filed no application under Part 33 of the CPR for the appointment of an expert witness or for the production of expert evidence, nor did she file any application to file any witness summaries.

6 The Defendant filed a Counter Hearsay Notice objecting to fourteen of the Claimants' Hearsay Notices (there was no objection to the notice relating to the receipt from the pharmacy) on the basis that the grounds upon which the hearsay notices were filed were either untrue or were unsupported by any evidence. The Defendant also filed a notice of evidential objections in relation to the Claimant's witness statement objecting mainly to the medical evidence she sought to adduce through her own witness statement on the basis that the same was inadmissible hearsay.

7 On May 6, 2022, the Court ordered the Claimant to file and serve an affidavit in support of her Hearsay Notices by May 16, 2022, in order to enable the Court to deal with the objections raised by the Defendant and permitted the Defendant to file an affidavit in reply, if necessary. The Claimant did not file any such affidavit with the result that the objections raised thereto were not determined.

8 The matter was then transferred to this Court and the parties were notified of the re-assignment by notice dated January 13, 2023.

9 On February 28, 2023, the Claimant then instead filed the present two (2) applications each seeking the issuance of a witness summons in respect of two medical doctors for them to give evidence of the trial and to produce one of the medical reports prepared by each of them. The Defendant objected to the applications.

10 On April 27, 2023, directions were given for the filing of submissions and the matter was adjourned for decision.

11 Subsequently, the Defendant filed a Notice withdrawing their Counter Hearsay Notice and an application seeking to strike out the Claimant's Hearsay Notices.

12 Further directions were given for the filing of submissions in relation to the Defendant's application and the parties were advised that the Defendant's application would be determined together with the Claimant's applications.

The Claimant's Applications

13 By their Notices of Application both filed on February 28, 2023, the Claimant sought an order pursuant to Part 26 of the Civil Proceedings Rules (“CPR”) or the court's inherent jurisdiction for a witness summons to be issued to Dr. Anil Kumar and to Dr. Wahid Mohammed to give evidence and to produce three (3) copies of certain medical reports prepared by each of them. The grounds of each application are identical and are as follows:

• i. That there are certain conflicts of medical evidence between the Claimant and Defendant's witnesses in this matter and therefore the Claimant has sought to have the medical evidence of this witness submitted to the Court pursuant to Part 30 of the CPR, however, the Defendant is resisting the Claimant's application.

• ii. It is submitted that the justice of the case requires the testimony of this witness to establish the truth of the medical evidence, which is contested, as those matters are relevant to the reliefs claimed by the Claimant.

14 Each application is supported by an affidavit in identical terms repeating the relief sought and the grounds of the application and adding that the Defendant will suffer no prejudice and the issuing of the summons will afford each party an opportunity to “ ventilate its case fully in an even-handed manner”.

15 By way of affidavit filed in opposition to the said applications by Rachel Jaggernauth, the Defendant's Instructing Attorney-at-Law, the Defendant averred as follows:

• i. The parties were ordered to file and exchange witness statements by 30 June 2021, which time was suspended to 3 August 2021 by virtue of the Court Operations Covid-19 Pandemic Directions — Practice Directions Nos. 15 and 17 of 2021.

• ii. The Defendant filed its witness statements on 23 June 2021 and on 30 August 2021, the Claimant filed one witness statement and the following fifteen (15) Hearsay Notices:

  • a. Hearsay Notice one (1) in relation to the medical report of Dr. Wahid Mohammed dated 14 June 2018.

  • b. Hearsay Notice two (2) in relation to the medical report of Dr. Wahid Mohammed dated 25 June 2018.

  • c. Hearsay Notice three (3) in relation to the medical report of Dr. Anil Kumar dated 2 July 2018.

  • d. Hearsay Notice four (4) in relation to the results of the MRI Scan of the Claimant's Lumbar Scan — as interpreted by Dr. V. R. Choppala dated 24 July 2018.

  • e. Hearsay Notice five (5) in relation to the medical report of Dr. Terry Romero dated 10 ^th October 2018.

  • f. Hearsay Notice six (6) in relation to the medical report of Dr. Terry Romero dated 6 December 2018.

  • g. Hearsay Notice seven (7) in relation to the medical report of Dr. Wahid Mohammed dated 27 December 2018.

  • h. Hearsay Notice eight (8) in relation to the results of an ultrasound of the Claimant's abdomen as interpreted by Dr. Glenda Cornelio dated 22 January 2019.

  • i. Hearsay Notice nine (9) in relation to the referral form of Dr. Anil Kumar dated 14 July 2018.

  • j. Hearsay Notice ten (10) in relation to the medical report of Dr. Anil Kumar dated 16 July 2018.

  • k. Hearsay Notice eleven (11) in relation to the medical report of Dr. Anil Kumar dated 12 December 2018.

  • l. Hearsay Notice twelve (12) in relation to a receipt from Macoya Pharmacy dated 21 February 2018.

  • m. Hearsay Notice thirteen (13) in relation to an invoice from Dr. Anil Kumar dated 22 January 2019.

  • n. Hearsay Notice fourteen (14) in relation to sick leave certificates from Dr. Wahid Mohammed dated 14 June 2018 and 25 June 2018.

  • o. Hearsay Notice fifteen (15) in relation to a sick leave certificate from Dr. Anil Kumar dated 30 June 2018 and a Fit-To-Work Certificate from Dr. Anil Kumar dated 30 June 2018.

• iii. The said Hearsay Notices were purportedly filed on the basis of Part 30.6(a)(iv) or 30.6(b)(ii) of the CPR 1.

• iv. The Claimant did not file any witness statements for Dr. Wahid Mohammed or Dr. Anil Kumar, neither did the Claimant seek permission pursuant to Part 33 of the CPR to deem either medical doctor an expert witness.

• v. In relation to Hearsay Notices (a), (b), (g) and (n), the Claimant alleged in the said notices that she attended Dr. Mohammed's office on “ diverse days including the 22 July 2021 and the 18 August 2021” seeking to locate the doctor but this proved futile. Notwithstanding the order for witness statements being made since 12 January 2021; it is clear that, if true, the Claimant only took steps to locate the doctor ‘AFTER’ the expiration of the time ordered for the filing witness statements. Further, on 14 September 2021, Ms. Jaggernauth called the office of Dr. Mohammed and was advised by his receptionist that the office was open every day from 7:00 a.m. and that Dr. Mohammed was the

  attendant physician. The Claimant's reliance on Part 30.6(b)(ii) was untrue as the doctor can easily be located and the filing of these Hearsay Notices was a ruse to avoid filing a witness statement for Dr. Mohammed.

• vi. In relation to Hearsay Notices (c), (i), (j), (k), (m) and (o), the Claimant also alleged in the said notices that she attended Dr. Kumar's office “ on diverse days including the 30 June, 2021 and the 22 July, 2021” but was informed the doctor was out of the jurisdiction and as such she was unable to locate...