Shepherd et Al v Public Hospitals Authority
| Jurisdiction | Bahamas |
| Judge | Evans, J. |
| Judgment Date | 29 May 2015 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2012/CLE/GEN/FP/00342 |
| Date | 29 May 2015 |
Supreme Court
Gray-Evans, J.
2012/CLE/GEN/FP/00342
For plaintiffs: Mrs. A Kenra Parris-Whittaker along with Mr. Jacy Whittaker
For defendant: Ms. Janet Hall-Spencer
Practice and Procedure - Application for provision of discovery — Risk management report — Whether discovery would breach confidentiality — Litigation privilege — Reliance to be placed on witness statements to prove litigation privilege — Whether litigation was reasonably contemplated or anticipated — Relevance of communications — Finding that defendant did not establish that the main purpose of report was for the purpose of litigation — Disclosure ordered.
By a summons filed 30th October, 2013 the plaintiffs apply for an order that the defendant provide discovery of the following documents:
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(1) Risk Management Report(s) and documents used to compile the reports(s).
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(2) Reports and output on the Pulse Oximeter and Transcutaneous Monitor machines used by baby Colette.
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(3) Digital Log of incoming/outgoing key card swipes for July 10th through 12th, 2012, of the O.B. Interior Entry.
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(4) Obstetric Ward Nurses' Notes for baby Colette on July 11th, 2012, from 3:00 a.m. to 5:00 a.m.
At the hearing of the aforesaid summons, counsel for the plaintiffs indicated, as I understood her, that as a result of certain events which had transpired since the filing thereof, the plaintiffs would only be proceeding with the application with respect to item 1 of the summons at this time. Further, that the plaintiffs' request at item 4 of the said summons was withdrawn and the parties had agreed that the application with respect to items 2 and 3 should be adjourned to a date to be fixed.
Hence, this is an application by the plaintiffs for an order that the defendant provide discovery of risk management report(s) and documents used to compile the same in relation to baby Colette Shepherd, the daughter of the first and second plaintiffs, who died at the Princess Margaret Hospital in August 2012.
On 8th July, 2012, the second plaintiff, Natalie Shepherd, went into the Rand memorial Hospital at 35 weeks gestation and gave birth to a baby girl, Colette, who weighed approximately 6lbs 8oz.
The plaintiffs allege that on 11th July, 2012 while in the care of the Intensive Care Unit personnel at the Rand Memorial Hospital Colette was deprived of oxygen. She was subsequently transferred to the Princess Margaret Hospital for further medical attention and evaluation on 11th July, 2012. The first and second plaintiffs also travelled to Nassau to be with her.
By letter dated 10th August, 2012 to the Princess Margaret and Rand Memorial Hospitals and the Public Hospitals Authority, counsel for the plaintiffs requested, inter alia, “copies of any reports provided to the Risk Assessors at PMH, RMH with respect to the machine that was used to measure Collette's oxygen on 11th July, 2012.”
Colette passed away on 21st August, 2012.
By letter dated 12th September, 2012 counsel for the plaintiff requested of Mrs. Janet Hall, legal adviser for the defendant, “a copy of the risk management teams report, which we have been advised includes a recommendation to the Board of the PHA as to the culpability of any staff or agent of RMH and/or PHA.”
The plaintiffs commenced this action on 5th October, 2012 by a generally indorsed writ of summons in which they claim under the Survival of Action Act, 1992, and under the Fatal Accidents Act, 1992, damages as a result of the negligence of the defendant, its employees, agents and/or servants, which resulted in the death of Colette whilst she was a patient in the care of the defendant its employees, agents and/or servants. The plaintiffs' statement of claim was filed on 17th December, 2012.
In its defence filed 17th January, 2013, the defendant, either denies or does not admit the plaintiffs' claim and puts the plaintiffs to strict proof thereof.
A further request for discovery as aforesaid was made by counsel for the plaintiffs in a letter dated 27th June, 2013 and by letter dated 13th September, 2013, counsel for the defendant, in response thereto, wrote, inter alia, as follows:
“The Public Hospitals Authority (PHA) Risk Manager's Report(s) were requested by the Legal Adviser of the PHA when the incident occurred. As such the communication and Risk Manager's Report(s) are between the PHA Legal Adviser and the PHA Risk Manager(s) is [sic] confidential and private.”
The plaintiffs' summons for discovery, filed on 30th October, 2013, was made pursuant to Rules of the Supreme Court Order 24 as well as under the inherent jurisdiction of the Court.
RSC Order 24 rules 3, 7 and 8 provide as follows:
“3. (1) Subject to the provisions of this rule and of rules 4 and 8, the Court may order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to make and serve on any other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question in the cause or matter, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party.
7. (1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.
8. On the hearing of an application for an order under rule 3 or 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”
The defendant objects to the discovery sought by the plaintiff and relies on two grounds to oppose the same: confidentiality and litigation privilege.
In a nutshell, counsel for the defendant argues firstly, that the risk manager's reports and pre-incident reports are documents which have been communicated from one defendant staff member to another and are, therefore, confidential to the defendant; and secondly, that the documents were prepared for the main or dominant purpose of presenting to the defendant's legal advisers for the purpose of obtaining legal advice and/or in contemplation of litigation, and are, therefore, protected by litigation privilege.
In support of the defendant's position, counsel for the defendant relied on the evidence of Aubynette Rolle and Bernadine Walkine as well as the cases of Waugh v. British Railways Board [1980] A.C. 521; Guinness Peat Ltd. v. Fitzroy Robinson; Smith-Bird v. Blower [1939] 2 ALL ER 406; Bullivant v. AG for Victoria (1901) AC 196; Ainsworth v. Wilding [1900] 2 Ch at 321; Re Whitworth [1919] 1 Ch 320; Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [1972] 2 WLR 835 CA; and Three Rivers District Council and others v. Governor and Company of the Bank of England Case (No. 6) [2004] 2 WLR 1065.
Counsel for the plaintiffs disagrees that the reports are privileged and argues for their production.
In her submission, the evidence shows that the reports were compiled prior to the death of Baby Colette for the purpose of ensuring that the defendant was operating safely and not, as contended by the defendant, for litigation. In any event, counsel submits, even if another purpose for preparing the report was to submit to legal advisers in contemplation of litigation, there would be a duality of purpose for the preparation of the reports and they would, therefore, not be privileged.
In support of the position taken by the plaintiffs, their counsel relies on the evidence of Sheila Taylor as well as the cases of Waugh v. British Railways Board supra; Ventouris v. Mountain [1991] 1 WLR 607; Tchenguiz & anor v. Rawlinson and Hunter Trustees SA and ors [2013] EWHC 2297; Starbev GP Ltd. v. lnterbrew Central European Holding BV [2013] EWCH 4038 (Comm); Price Waterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC 583, and she submits that the cases relied on by the defendant, except for Waugh v. British Railways Board supra.
Several affidavits have been filed in support or opposition to the above-mentioned summons, namely:
| 1. Sheila Taylor | 4th November, 2013 | Affidavit |
| 2. Aubynette Rolle | 6th November, 2013 | Affidavit |
| 3. Sheila Taylor | 7th November 2013 | Second Affidavit |
| 4. Aubynette Rolle | 27th February, 2014 | Affidavit |
| 5. Sheila Taylor | 27th February, 2014 | Affidavit |
| 6. Bernadette Walkine | 27th February, 2014 | Affidavit |
Set out hereunder, in chronological order, are the relevant portions of the aforesaid affidavits:
In her 4th November 2013 affidavit, Sheila Taylor, deposed, inter alia, as follows:
- ) I have also been advised by Mrs. Whittaker that she spoke with Ms. Aubynette Rolle of the Risk Assessment Department on or around August 10th, 2012 and was advised that the Risk Assessors were in place to protect patients and not the Public Hospital Authority and were responsible for advising the Board of the defendant on any incidents that occur. 2) On August 10th, 2012, September 12th, 2012 and June 27th, 2013 counsel for the plaintiffs wrote to counsel for the defendant and requested a copy of the Risk Assessment Reports. On September 13th, 2013, Counsel for the plaintiffs received correspondence from Counsel for the defendant that the...
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