North West Regional Health Authority v Alexandria Badal
| Jurisdiction | Trinidad & Tobago |
| Judge | Boodoosingh JA,Wilson J.A. |
| Judgment Date | 30 November 2023 |
| Neutral Citation | TT 2023 CA 83 |
| Docket Number | Civil Appeal No. P196 of 2019 |
| Court | Court of Appeal (Trinidad and Tobago) |
P. Rajkumar, J.A.
M. Wilson, J.A.
R. Boodoosingh, J.A.
Civil Appeal No. P196 of 2019
Claim No. CV2017-02186
IN THE COURT OF APPEAL
Mr Douglas Mendes S.C. leading Mr Kirk Bengochea instructed by Mr Charles Law for the appellant
Mr Kern Saney instructed by Mr Aaron Mahabir for the respondent
Delivered by
The respondent, Ms Alexandra Badal, was an employee of the appellant, North West Regional Health Authority (NWRHA) on 13 June 2013. On that date, a man armed with a gun made his way onto the compound of the Port of Spain General Hospital, which was under the control of the NWRHA. That gunman shot three persons, one of whom was Ms Badal. She sustained severe injuries to her face and to other parts of her body. Her treatment and recovery was a long process.
She brought this claim against her employer the NWRHA alleging negligence on their part in not providing a safe system of work. The NWRHA brought an ancillary claim against Amalgamated Security Services Limited (Amalgamated) whom they had hired to provide security services at the premises of the Port of Spain General Hospital. At the time of this shooting there were no armed security personnel at the Hospital. After the incident this type of security was implemented.
A trial was held before Harris J. He determined the claim in Ms Badal's favour finding that the NWRHA had been negligent by failing to provide a safe system of work for Ms Badal. He ordered that a master should assess her damages. The judge also dismissed the claim against Amalgamated finding that they had been performing the duties which they had been contracted to perform.
The NWRHA has appealed the judge's decision in relation to the judgment in Ms Badal's favour, including the judge's findings of fact. They have not appealed the decision to dismiss the ancillary claim against Amalgamated.
In several cases the Judicial Committee of the Privy Council has indicated that the appeal court should not interfere with findings of fact by the trial judge and substitute its view of the evidence for that of the trial judge save in certain defined circumstances. In Maharaj Bookstores Limited v Beacon Insurance Limited [2014] UKPC 21 it was said at para 12:
“It has often been said that the appeal court must be satisfied that the judge at first instance has gone “plainly wrong”. See, for example, Lord Macmillan in Thomas v Thomas at p 491 and Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1, paras 16-19. This phrase does not address the degree of certainty of the appellate judges that they would have reached a different conclusion on the facts: Piggott Brothers & Co Ltd v Jackson [1992] ICR 85, Lord Donaldson at p 92. Rather it directs the appellate court to consider whether it was permissible for the judge at first instance to make the findings of fact which he did in the face of the evidence as a whole. That is a judgment that the appellate court has to make in the knowledge that it has only the printed record of the evidence. The court is required to identify a mistake in the judge's evaluation of the evidence that is sufficiently material to undermine his conclusions. Occasions meriting appellate intervention would include when a trial judge failed to analyse properly the entirety of the evidence: Choo Kok Beng v Choo Kok Hoe [1984] 2 MLJ 165, PC, Lord Roskill at pp 168169.”
Further in Henderson v. Foxworth Investments Ltd [2014] UKSC 41, which is cited in the decision of the Privy Council in Paymaster (Jamaica) Limited & Anor. v. Grace Kennedy Remittance Services Limited [2017] UKPC 40 at paragraph 29, Lord Reed said:
“In the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
In Bahamasair v Messier Dowty Inc [2018] UKPC 25 Lord Kerr summarised the approach an appeal court should take as follows:
“36. The basic principles on which the Board will act in this area can be summarised thus:
1. “… [A]ny appeal court must be extremely cautious about upsetting a conclusion of primary fact. Very careful consideration must be given to the weight to be attached to the judge's findings and position, and in particular the extent to which, he or she had, as the trial judge, an advantage over any appellate court. The greater that advantage, the more reluctant the appellate court should be to interfere …” - Central Bank of Ecuador v Conticorp SA [2015] UKPC 11; [2016] 1 BCLC 26, para 5.
2. Duplication of the efforts of the trial judge in the appellate court is likely to contribute only negligibly to the accuracy of fact determination - Anderson v City of Bessemer, cited by Lord Reed in para 3 of McGraddie.
3. The principles of restraint “do not mean that the appellate court is never justified, indeed required, to intervene.” The principles rest on the assumption that “the judge has taken proper advantage of having heard and seen the witnesses, and has in that connection tested their evidence by reference to a correct understanding of the issues against the background of the material available and the inherent probabilities.” Where one or more of these features is not present, then the argument in favour of restraint is reduced - para 8 of Central Bank of Ecuador.
37. The Board considers that the Court of Appeal in the present case should have operated on these principles in reviewing the Chief Justice's findings made at first instance. It further finds that it failed to do so. Rather, because it disagreed with some of those findings, it considered that it was legitimate to set them aside and to examine the evidence de novo. Given that there was material before the Chief Justice on which he could make the factual findings which he did and that the inferences which he drew from them could properly be drawn, and that none of his conclusions was “plainly wrong”, the Court of Appeal should not have conducted its own analysis.”
It is necessary therefore to examine the judge's findings through this lens of the restraint placed on the appeal court. I will turn to a brief review of the evidence and then consider key observations of the judge on the evidence and findings of the judge.
She worked at the Port of Spain General Hospital. She was unaware of any notice from her employers in 2013 about security measures or heightened incidents of gang activity or violence in the area of the hospital. On 13 June 2013, about 1:50 pm, she was standing in the canteen area of the hospital and there were loud explosions. The next thing she knew is that she woke up on a hospital bed. She then detailed her injuries and how these have affected her life. Since only the issue of liability was dealt with by the trial judge, and the issue of compensation was left to be assessed by the master, I will not summarise her evidence about her injuries. It is sufficient to note that she has had severe injuries which have had a lasting impact on her life.
The other witness statements filed on behalf of Ms Badal related to the compensation aspect of her claim and it is unnecessary to recount them for the purposes of this appeal.
He gave evidence for the NWRHA. He was a security supervisor who had many years of experience in the security industry and had many qualifications in occupational health and security. He assisted in implementing the security policies of NWRHA, monitoring performance of them, conducting risk assessments and investigating reports. He recounted that an incident occurred on 13 June 2013 and a report on it was prepared by Mr Solomon Sweeney, the manager of security services at NWRHA at the time. He recounted parts of this report and noted that the new wave of criminality recorded in the report brought new risks which the NWRHA had not had to deal with previously. He stated that a few weeks after the incident, armed security personnel were deployed on the Port of Spain General Hospital compound. A letter sent by the CEO of the hospital at the time had noted that there were no violent attacks on the compound before 13 June 2013. He gave evidence of the placement of guards on the compound around the time of the incident. These guards were not armed.
He noted that Amalgamated was contracted to provide patrol services and they were also required to assess if armed security was required. They were not, however, contracted to provide such services. In crossexamination, he accepted that a series of events had taken place at the hospital related to increased attendance of gang members at the hospital in the six months before the incident. He also accepted there was a high influx of patients attending the hospital due to turf wars, gang activities and police shootings. He had seen the report done by Mr Sweeney and he accepted the accuracy of it. He also accepted that armed security would act as a deterrent to armed persons coming on to the hospital compound. He further accepted that a recommendation was made before the incident for armed security, but that at the time of the incident it was before the board of the NWRHA for approval. In re-examination he indicated that no shooting incident had happened within the perimeter of the hospital compound before the 13 June 2013 incident.
Mr Aberdeen gave evidence for Amagamated as its Chief Investigating Officer. He had over 31 years in the...
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