D'Esther Fox v Ministry of Labour
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 13 May 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2018/CLE/gen/00212 |
and
and
The Hon. Madam Justice G. Diane Stewart
2018/CLE/gen/00212
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
Mr. Nathan Smith for the Plaintiff
Mr. Rashied Edgecome and Kirkland Mackey for the Defendants
By a Specially Endorsed Writ of Summons filed the 28 th February 2018, the Plaintiff, Ms. D'Esther Fox (the “Plaintiff”) seeks general and special damages from the Defendants for their alleged negligence and breach of statutory duty as a result of their failure to ensure that her work environment was sufficiently safe and secure, with the presence of security for the duration of her scheduled work hours.
Her action was commenced as a result of being robbed while she was seconded to the Parliamentary Registration Department (the “Department”), where she assisted with voter registration during the 2017 election cycle. The Plaintiff, who is employed as a Price Inspector with the Consumer Affairs Division in the Ministry of Labor was stationed at St. Barnabus Church (the “Church”) on the 21 st March 2017, when at 8:00 p.m., she heard a car horn blowing outside. Assuming it was her ride that had come to collect her, she opened the door, only to be met with a gun pointed in her face by a man who had demanded that she give him all of her money.
The Plaintiff claimed that the gunman entered the Church, demanded that she lay face down and robbed other individuals who were present. There were no police officers present as she claimed that the police officer who was posted at the Church had left prematurely between 2:30 p.m. and 3:00 p.m., for the second day in a row.
As a result of the incident, she was diagnosed with Post Traumatic Stress Disorder and suffered from extreme physical reactions to memories of the event, difficulty sleeping, irritability and lack of concentration, depression, feelings of hopelessness and suicidal thoughts, emotional detachment, loss of interest in formerly engaging activities, headaches, stomach problems and chest pain. She claimed that she would more than likely be required to undergo treatment for a year to eighteen months.
The Defendants admitted that the Plaintiff was working for the Department on the 21 st March 2017 and that the scheduled time for work was between the hours of 9:00 a.m. to 8:00 p.m. They claim that the time the Plaintiff allegedly heard the horn blowing was well after 8:00 p.m., after the shift had ended and the scheduled bus had collected the box of voters' cards.
As a result, they claim that the Plaintiff was not carrying out work as instructed by her job description when the incident occurred, further that the police and defence force officers were detailed to work while voter's cards were being distributed. They denied that the Plaintiff was entitled to the relief claimed.
Whether the Defendants breached their statutory duty of care pursuant to s. 4 of the Health and Safety at Work Act?
Whether the Defendants negligence resulted in the armed robbery of the Plaintiff?
The Plaintiff averred that on the night of the Incident, she locked the screen door of the Church and left the solid door open. She then went by a table to use the phone to contact her ride. Minutes later she heard a horn blow and when she went outside she was immediately greeted with a handgun pointed directly in her face. She described the gunman as wearing a blue cap with the letter “A” on it, a coral shirt and blue ripped jeans with an aqua towel over his mouth and nose.
The gunman shouted to her and the other staff members, “This is a holdup! Give me all your money!” This caused the Plaintiff, her coworker Typhany Clarke (“Ms. Clarke”) and other staff to retreat to the rear of the room. The gunman then instructed everyone to lie on the floor and put their heads down. A few of the staff told the gunman that they did not have any money and she noticed that Ms. Clarke had huddled under a table beside her and had called 911.
This led to the gunman asking who was on the phone. He then told them “sorry I had to do this but I really need this money” as he left the Church. Once he left they locked both of the Church doors behind him. The Parliamentary Registrar was called and informed of what had occurred however, when persons for that department arrived they did not open the Church doors for them until the police arrived.
When the police officers arrived, they asked them if they were alright and asked where the officer was who should have been stationed there. She told them that both the police officer and the defence force officer had left for the day around 2:30 p.m. without any relief to continue the shift. The Plaintiff explained that shortly after the incident she discovered that she was pregnant however, a month later she suffered a miscarriage.
The Plaintiff exclaimed that since the Incident, she experienced a lot of mental stress, suffered from insomnia and on the rare occasion that she fell asleep, she was often awakened by recurring nightmares. She consequently sought professional help from Dr. Timothy Barrett (“Dr. Barrett”) and Dr. Kathryn Higgs. The Plaintiff added that she struggled to enjoy going out with her family as she had feared that she would be robbed again.
During cross-examination, the Plaintiff averred that when the incident occurred they had finished work and that the bus which collected the voters cards had already left the Church. There was no scheduled time for the bus to collect them. She was unsure of whether she provided any document in relation to her pregnancy and subsequent miscarriage to her Counsel.
She was able to return to work at the Ministry of Labour in May 2017. While she was unable to properly function, she was a single mother with three children and had to put her feelings aside in order to work but she also went to therapy. She was depressed because she had miscarried. As far as she was aware, provision had been made for security. At times there were defence force officers present. The Plaintiff had never been a victim of crime before.
During re-examination, the Plaintiff stated that she had missed a lot of days from work because she was physically sick. During further cross examination, the Plaintiff testified that she found out she was pregnant about two months after the Incident, around the same time that she miscarried.
Dr. Barrett, a Consultant Psychiatrist (“Dr. Barrett”), averred that on the 31 st May 2017, he clinically interviewed the Plaintiff for a psychiatric evaluation. During her visit he was informed of the incident and had concluded that the Plaintiff met the criteria for Post — Traumatic Stress Disorder (“PTSD”). He explained that her symptoms manifested and worsened as a result of emotional trauma experienced.
Dr. Barrett, testified that he appreciated that his letter would likely be used for the purpose of litigation and that he gave details which he thought were pertinent and clear. When a patient visited him, there were several steps that would be taken in order to arrive at a conclusion. He would consider the reason for the referral, who gave the referral and why the person was being referred. He would refer to a specific manual to ensure that a recognized diagnosis was given.
A diagnosis of post-traumatic stress was purely subjective however, while the person could have suffered trauma it did not have to be as a result of traumatic incident. He agreed that women who suffered miscarriages could suffer from PTSD. He did not have to know all of the possible causes because he only had to be aware of the symptoms which are related to the timing of what is being complained of. He would have to be aware of all the symptoms being experienced in order to conclude that there was more than one cause but he could not go outside the boundaries of what he knew.
Dr. Barrett could not recall if the Plaintiff had informed him that she had just suffered a miscarriage prior to her visit with him. However, a miscarriage would have exacerbated the symptoms described by the Plaintiff and would not have been a cause of them. He was not aware that she was suffering from depression as a result of the miscarriage. He saw the Plaintiff a total of eight times in 2017, five times in 2018 and twice in 2019.
Dr. Barrett explained pharmacal therapy as the giving of an antidepressant when treating PTSD and added that the Plaintiff received this same. Depending on how the PTSD symptoms manifested, the quality of life and daily routine could be impacted. He explained that there were common symptoms of PTSD and that the groupings were avoidance, hyperarousal, hypervigilance, nightmares and flashbacks. The symptoms varied from person to person.
To assess the Plaintiff, Dr. Barrett used a description of the traumatic event and what was going through her mind at the time of the traumatic event because that was key as the psychological trauma would take place when she felt like her life was threatened and she was helpless to do anything about it. Dr. Barrett explained that the Plaintiff saying that her life flashed before her when she was accosted with the gun, correlated to the trauma. In her case, the PTSD symptoms led to flashbacks, hypervigilance, avoidance and helplessness.
Dr. Barrett explained that an anti-depressant would be prescribed for a six month period. At the end of that period, there would be an assessment to see how effective it was. This was the course of treatment for the Plaintiff who only needed one pharmacological agent as there was gradual improvement overtime. She was advised to take one of the prescribed medications for a year and the other prescribed medication was...
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