Derek Achong

derek.achong@guardian.co.tt

The North West Re­gion­al Health Au­thor­i­ty (NWRHA) has lost its ap­peal over a judge’s de­ci­sion to or­der com­pen­sa­tion to one of its em­ploy­ees, who was shot in her face dur­ing a shoot­ing at the Port-of-Spain Gen­er­al Hos­pi­tal, al­most a decade ago.

De­liv­er­ing a ma­jor­i­ty judg­ment on Thurs­day, the Court of Ap­peal dis­missed the au­thor­i­ty’s ap­peal over the de­ci­sion of a High Court judge to up­hold Alexan­dria Badal’s neg­li­gence claim against it.

Ap­pel­late Judges Pe­ter Ra­jku­mar and Ron­nie Boodoos­ingh agreed that the judge’s de­ci­sion could not be fault­ed, while Jus­tice Maria Wil­son pre­sent­ed a dis­sent­ing judg­ment, in which she sought to ex­plain why she would have al­lowed the ap­peal.

Ac­cord­ing to the ev­i­dence in the case, Badal was among three peo­ple who were shot in the hos­pi­tal’s car park and vend­ing area by a gun­man on June 13, 2013.

Badal spent al­most six months ward­ed at the hos­pi­tal be­fore she was even­tu­al­ly dis­charged.

Badal filed the law­suit seek­ing com­pen­sa­tion for the long-last­ing ef­fects of her in­juries, which in­clud­ed seizures, mem­o­ry loss, black­outs, and con­tin­u­ous pain in her face, shoul­ders, neck, head, back, and legs.

The NWRHA, which man­ages the hos­pi­tal, de­nied any wrong­do­ing as it claimed that it took all rea­son­able steps to en­sure that Badal would not be ex­posed to the risk of dam­age or in­jury while on the job.

It filed an an­cil­lary claim against its se­cu­ri­ty provider Amal­ga­mat­ed Se­cu­ri­ty Ser­vices Lim­it­ed as it claimed that it (the com­pa­ny) was re­quired to in­dem­ni­fy it against any pos­si­ble com­pen­sa­tion to which Badal may be en­ti­tled.

In de­cid­ing the case in April 2017, Jus­tice David Har­ris up­held Badal’s claim against the NWRHA and or­dered that the ap­pro­pri­ate com­pen­sa­tion be as­sessed by a High Court Mas­ter or Reg­is­trar.

How­ev­er, Jus­tice Har­ris dis­missed the an­cil­lary claim as he not­ed that the NWRHA had failed to prove that the com­pa­ny had fall­en short of its oblig­a­tions un­der its con­tract.

Jus­tice Har­ris did not con­sid­er the com­pa­ny’s claim that its con­tract with the NWRHA had ex­pired at the time of the shoot­ing as he point­ed out that the par­ties still con­tin­ued their com­mer­cial re­la­tion­ship in the ab­sence of a valid writ­ten con­tract.

In the ap­peal, the NWRHA claimed that Jus­tice Har­ris was wrong to have found his client neg­li­gent based on the risk of the shoot­ing be­ing “rea­son­ably fore­see­able”.

It claimed that he placed un­due weight on a re­port from his client’s then-se­cu­ri­ty head Solomon Swee­ny, which was pro­duced short­ly af­ter the in­ci­dent.

In the re­port, Swee­ny claimed that the NCRHA was in the process of hir­ing armed se­cu­ri­ty guards and in­creas­ing its se­cu­ri­ty pro­to­cols as it had no­ticed an in­crease in pa­tients who were wound­ed in vi­o­lent gang con­fronta­tions at the time.

In the ma­jor­i­ty de­ci­sion, Jus­tices Ra­jku­mar and Boodoos­ingh ruled that their col­league was en­ti­tled to con­sid­er the re­port and make as­so­ci­at­ed find­ings based on it.

“In­deed, the need for armed se­cu­ri­ty was recog­nised be­fore the in­ci­dent, but this sim­ply was not im­ple­ment­ed in time,” Jus­tice Boodoos­ingh said.

“The tri­al judge’s con­clu­sion could not be fault­ed that if the rec­om­men­da­tions of that re­port to pro­vide an armed re­sponse had been act­ed up­on, this would have pro­vid­ed a suf­fi­cient de­ter­rent on a bal­ance of prob­a­bil­i­ties to min­imise or pre­vent an in­ci­dent of shoot­ing on the com­pound,” he added.

In her judg­ment, Jus­tice Wil­son ruled that her col­league failed to con­sid­er the ev­i­dence of oth­er NWRHA em­ploy­ees who tes­ti­fied that there were no shoot­ings on the com­pound be­fore the in­ci­dent in­volv­ing Badal.

She al­so not­ed that the judge did not con­sid­er that the in­juries were in­flict­ed by a third par­ty and that his judg­ment may open a “flood­gate”of lit­i­ga­tion against em­ploy­ers and oth­er pub­lic au­thor­i­ties.

“The log­i­cal con­se­quence of view­ing the scope of the du­ty of care to in­clude all in­juries in­flict­ed by third par­ties on em­ploy­ees is that the em­ploy­er would be re­spon­si­ble for caus­ing all such in­juries if they did not put se­cu­ri­ty mea­sures in place to pre­vent it from oc­cur­ring,” she said.

The as­sess­ment of dam­ages for Badal, which was post­poned pend­ing the out­come of the ap­peal, will now take place pro­vid­ed that the NWRHA does not mount a suc­cess­ful fi­nal ap­peal to the Unit­ed King­dom-based Privy Coun­cil.

The NWRHA was rep­re­sent­ed by Dou­glas Mendes, SC, Kirk Ben­gochea and Charles Law. Badal was rep­re­sent­ed by Kern Saney and Aaron Ma­habir.