[1] Attorney General of the Commonwealth of Dominica [2] Hospital Services Coordinator Appellants v Cecilia Robin Respondent [ECSC]

• Jurisdiction: Dominica
• Judge: Mitchell JA [AG.],Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 27 June 2012
• Judgment citation (vLex): [2012] ECSC J0627-2
• Court: Court of Appeal (Dominica)
• Docket Number: HCVAP 2011/034
• Date: 27 June 2012

[2012] ECSC J0627-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon Mr. Don Mitchell Justice of Appeal [Ag.]

HCVAP 2011/034

Between:

[1] Attorney General of the Commonwealth of Dominica

[2] Hospital Services Coordinator

Appellants

and

Cecilia Robin

Respondent

On written submissions:

Ms. Pearl D. Williams for the Appellants

Mr. James Gildon Richards for the Respondent

Civil appeal — Negligence — Public Authorities Protection Act, Cap 7:60 — Whether limitation defence applicable when the act complained of is not a direct execution of a public duty

The respondent is an acting staff nurse who, on 25 ^th February 2011, brought a claim against the appellants for their alleged failure to protect her in the performance of her duties. She claimed that on 20 ^th May 2010, whilst on duty, she suffered various injuries as a result of receiving an electric shock from turning on a light switch which was hanging loose due to renovation work at the Dialysis unit. The appellants filed a defence in which they raised the limitation point under the Public Authorities Protection Act ("the Act"). The Attorney General also filed an application to strike out the claim which was later denied by the learned Master. It is that ruling that the appellants are appealing.

Held: dismissing the appeal and awarding assessed costs to be paid by the Attorney General to the respondent in the sum of $3,000.00, that:

1. It is not because the act out of which an action arises is within their power that a public authority enjoys the benefit of the statute. The act complained of arose allegedly in the execution of a private obligation which the Hospital authorities owed to the respondent and not in the execution of any public obligation. The Hospital, as employers of the respondent, owed a duty of care to her personally.

Bradford Corporation v Myers [1916] 1 AC 242 applied; Andrew Thomas Bell v The Commissioner of Police of the British Virgin Islands British Virgin Islands Civil Appeal No. 4 of 2001 (delivered 26th January 2004) applied.

2. The limitation defence under the Act would only be available where the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. The act of renovating the Dialysis unit was not such an act, as such the limitation period of six months stipulated under the Act is inapplicable to the respondent's claim.

Bradford Corporation v Myers [1916] 1 AC 242 applied; Andrew Thomas Bell v The Commissioner of Police of the British Virgin Islands British Virgin Islands Civil Appeal No. 4 of 2001 (delivered 26 ^th January 2004) applied; Public Authorities Protection Act Cap. 7:60, Revised Laws of Dominica, 1990 applied.

Mitchell JA [AG.]

1 Cecilia Robin claims that she is an acting staff nurse employed by the Government of Dominica at the Princess Margaret Hospital in Goodwill. On 20 ^th May 2010, while she was on duty in the Haemodialysis Unit performing her duties, she reached out her hand to turn on a light switch which was hanging loose in a corner of the room. She was jolted by a sudden electric shock which she alleges caused her to lose consciousness and to suffer various injuries. She claims that there were at the time ongoing renovation works at the Dialysis Unit and that her employers, the appellants, had not taken due care to protect her in the performance of her duties. She filed a claim form against them on 25 ^th February 2011 some 9 months later. The appellants filed a defence in which they raised the limitation point under the Public Authorities Protection Act ("the Act"). 1

2 Subsequently, the Honourable Attorney General filed an application in the High Court supported by an affidavit seeking the striking out of the statement of claim on several grounds. The parties filed submissions on the limitation point and Master Mathurin considered their argument in Chambers. On 16 ^th November 2011, she delivered a written ruling dismissing the application. She relied on the cases of Bradford Corporation v Myers; 2Andrew Thomas Bell v The Commissioner of Police of the British Virgin Islands; 3Loretta Frett v The Attorney General of the Virgin Islands et al; 4Eileen Archibald v The Commissioner of Police of the Royal St. Vincent and the Grenadines Police Force et al; 5 and Griffiths and Another v Smith and Others. 6 She ruled that the renovation of the Dialysis Unit was not a direct execution of a public duty but rather ancillary to it and as such did not fall within the parameters of the Act.

3 The Honourable Attorney General sought and obtained leave to appeal this interlocutory ruling. Both parties have filed very helpful submissions and bundles of authorities. The appeal has been passed to me for deciding on paper under rule 62.10(5) of the Civil Procedure Rules 2000. The notice of appeal takes issue with several findings of the learned Master, however the principal issue is whether she was right to find that the section 2 defence does not apply in the circumstances of this case.

4 Section 2(1) of the Act, where relevant, reads:

"2. (1) Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or of any alleged neglect or default in the execution of such Act, duty or authority, the following provisions shall have effect:

(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of or, in case of a continuance of injury or damage, within six months next after the ceasing thereof.

(b) …

(c) …

(d) …"

5 The seminal case in all the cases relating to the Act is the Bradford Corporation case. In that case the defendant municipal corporation, a public authority, was authorised by an Act of Parliament to carry on the undertaking of a gas company. They were bound to supply gas to the inhabitants of the district. They were also empowered to sell and deliver the ...