Robert et Al v Bhagan and Medcorp Ltd; Medcorp Ltd v Roberts et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: A. Mendonca J.A.
• Judgment Date: 15 October 2015
• Neutral Citation: TT 2015 CA 27
• Docket Number: Civil Appeal P345 of 2014; Civil Appeal P347 of 2014
• Date: 15 October 2015

Court of Appeal

Mendonca, J.A.; Smith, J.A.; Narine, J.A.

Civil Appeal P345 of 2014; Civil Appeal P347 of 2014

Robert et al

and

Bhagan and Medcorp Limited

Medcorp Limited

and

Roberts et al

Appearances:

Mr. L. Murphy appeared for Ms. C. Roberts and I. Roberts

Mr. C. Hamel-Smith and Mr. J. Walker appeared for Dr. S. Bhagan

Mr. R. Martineau and Mr. I Benjamin appeared for MEDCORP Ltd.

Civil practice and procedure - Appeal — Evidence — Expert evidence — Disclosure of expert report — Whether report of expert previously retained by party ought to be disclosed as condition precedent to that party relying on different expert.

I agree with the judgment of Mendonca J.A. and have nothing to add.

R. Narine,

Justice of Appeal

I too agree

G. Smith,

Justice of Appeal

A. Mendonca J.A.

1 There are two appeals before this Court challenging certain rulings by the Case Management Judge as to expert evidence in relation to the assessment of damages.

2 In the first appeal (Civil Appeal 345 of 2014) the second claimant in the action, Isiah Roberts is the appellant and the respondents, Dr. Samantha Bhagan and Medcorp Limited, are the defendants in the action. In the second appeal (Civil Appeal 347 of 2014) the appellant is the second defendant, Medcorp Limited. The respondents are the claimants and the first defendant, Dr. Samantha Bhagan. For convenience I shall refer to the parties in this judgment as the claimants and the defendants.

3 The first claimant, Cristal Roberts, is the mother of the second claimant, Isaiah Roberts who sues by his father and next friend, Ronald Roberts. On June 2nd, 2006 the first claimant when pregnant with the second claimant was admitted as a maternity patient to the second defendant's health centre, St. Clair Medical Centre. At the time she was under the care of the first defendant, Dr. Bhagan. While a patient at the health centre the first claimant went into labour on June 2nd, 2006 and gave birth to the second claimant on June 3rd, 2006. Upon his birth it was discovered that the umbilical cord was wrapped around his neck and restricted his airflow for a prolonged period. He was “flat” at birth and required resuscitating. As a consequence he has suffered from cerebral palsy since birth and physical and intellectual impairment. He requires extensive medical care, treatment and support.

4 On November 18th, 2010 the claimants began these proceedings against the defendants seeking damages for inter alia, personal injuries as a result of the defendants' negligence. The defendants have admitted liability thereby leaving the damages to which the claimants are entitled to be assessed.

5 Applications were made by the parties before the Case Management judge to determine the expert evidence at the assessment of damages. The appeals before this Court are limited challenges to certain of the orders made by the judge.

6 In relation to the second claimant's appeal he has challenged the order of the judge by which he:

• (a) disallowed the evidence of the claimant's care expert, Maggie Sargeant;

• (b) allowed the evidence of Ms. Kacy Turner, a life care planner, who is a witness for the first defendant, without ordering as a condition to Ms. Turner giving evidence the disclosure of a report (draft or otherwise) of Elizabeth Roger who had previously been retained by the first defendant and who had examined the second claimant; and

• (c) allowed the evidence of the first defendant's expert on comparative law, Mr. Duncan Fairgrieve.

7 The appeal of the second defendant, Medcorp Limited, challenges the judge:

• (a) reserving his decision on the claimants' application for permission to adduce the expert evidence of Ulric Warner, a Human Resources Consultant;

• (b) granting the claimants permission to adduce the expert evidence of an architect (Gene Farmer) and a United Kingdom based Chartered Surveyor (Tom Werthers) on United States accommodation costs and relocation; and

• (c) granting conditional (as opposed to unconditional permission) to the claimants to adduce the expert evidence of Willie Roopchan, a Quantity Surveyor and Laura Deming, Life Care Planner, dependent upon the outcome of the claimant's procedural appeal No. 263 of 2014.

8 I will provide further background when I come to deal with each of the challenges on the appeals.

9 These appeals challenge the exercise of the discretion of the Case Management Judge. It is well settled that an appellate Court will not interfere with the exercise of the discretion of the judge simply because it would have arrived at a different decision. In order to interfere with the exercise of the judge's discretion the appellate Court must be satisfied that the judge is plainly wrong. Unless therefore it can be shown that the judge misdirected himself in law or on the evidence or took into account irrelevant considerations or failed to take into account relevant ones or where the judge is required to balance multiple considerations, the approach and/or result of the balancing exercise is plainly wrong, the appellate Court will not interfere with the exercise of the Court's discretion.

10 Rule 33.4 of the Civil Proceedings Rules 1998 (the CPR) provides that:

“Expert evidence must be restricted to that which is reasonably required to resolve the proceedings justly.”

Rule 33.5(1) provides:

“No party may call an expert witness or put in an expert's report without the Court's permission.”

Parties to an action therefore are required to have the permission of the Court to rely on expert evidence. It is obvious from rules 34.4 under 33.5(1) that in deciding whether permission should be given to a party to call an expert witness or put in an expert's report that the Court must consider whether such evidence is reasonably required to resolve the proceedings justly. This is a decision that must therefore be made with reference to the overriding objective. The Court must take into account all relevant circumstances which may include those specifically mentioned at 1.1(2) of the CPR as well as fairness, prejudice, bona fides and the due administration of justice.

11 Whether the evidence is reasonably required in any particular case will inevitably be fact sensitive and it is therefore also necessary to consider how cogent the proposed evidence is likely to be and how useful or helpful it is likely to be in resolving the issues that arise for determination (see Civil Appeal 277 of 2012 Kelsick v. Kuruvilla and others).

12 With these general observations in mind I turn to consider the first challenge on the second claimant's appeal to the evidential rulings of the Case Management Judge. This challenge is to the refusal of the judge to allow the evidence of Maggie Sargeant. Maggie Sargeant is a registered nurse with, she says, over thirty years of experience of caring for patients both in hospitals and in the community. The claimants sought permission to call her as an expert witness and to put into evidence her report. The grounds identified in the claimants' application were, inter alia, that Maggie Sargeant is experienced and qualified in her speciality, is well placed to provide the Court with expert assistance and input on issues of quantum that the Court will need to justly determine the claim and that her evidence is reasonably required to resolve the claim justly.

13 Mr. Sargeant's report is dated January 19th 2014 and was prepared pursuant to a request by letter dated June 12th, 2013 from attorneys for the claimants in which Ms. Sargeant was requested to “prepare an expert report based on [her] specialist assessment and [her] evaluation of present and future care of Isaiah Roberts”. The letter continued with the following specific instructions:

“You are to provide, within your expertise, an expert report determining the additional time, care and attention which Isaiah would have required over and above that which a child without his disabilities would have required. Please would you also assess Isaiah's present and future nursing care needs, an analysis and quantification of care needs, personal care, housekeeping needs, medical care requirements and rehabilitation needs having assessed evaluated Isaiah Roberts in conjunction with other experts in Schedule A”.

14 Pursuant to her instructions Ms. Sargeant prepared her report which is intituled “Nursing Care Report: Past, Present and Future Care needs”. The report refers to past care given to the second claimant, the present situation and the future care needs. Under past care the report sets out the extra care that Isaiah was likely to have received from birth because of his disabilities. Ms. Sargeant describes his present situation and assesses the care and support that the second claimant will require in the future. Ms. Sargeant provides a costing of the care and support in sterling and United States dollars.

15 The judge was of the view that the evidence of Ms. Sargeant was likely to be unhelpful in resolving the issues as to the past and future care of the second claimant. The judge noted that the evidence of a life care planner was likely to be the more cogent in this regard. The claimants have permission to call Ms. Giles as an expert witness who is a life care planner. Ms. Sargeant on the other hand describes herself as a nursing care expert. The judge was of the view that although the proposed evidence of Ms. Sargeant is not a duplication of the evidence of Ms. Giles it fell woefully short of the evidence that is required which ought to come from a life care planner. He therefore concluded that the evidence of Ms. Sargeant was likely to be of little assistance and therefore she will not be permitted to give evidence.

16 The defendants submitted that there was no basis to interfere with the judge's discretion. They argued that the judge's decision was well within the ambit of his discretion.

17 I...