Thompson v Public Hospital Authority

• Jurisdiction: Bahamas
• Judge: Mohammed, J.
• Judgment Date: 16 March 2007
• Docket Number: COM/lab/457 of 2006
• Court: Supreme Court (Bahamas)
• Date: 16 March 2007

Supreme Court

Thompson, J.

COM/lab/457 of 2006

Thompson

and

Public Hospital Authority

Appearances:

Mr. Andrew Forbes for the plaintiff.

Ms. Deidre Clarke-Maycock for the defendant.

Civil Practice and Procedure - Limitation of action – Unexplained death of baby causing nervous shock to mother – Argument by defendant that action for damages should have commenced some three years previously and that Writ was frivolous and vexatious – Plaintiff contending that the defendant had failed to advise her of the circumstances of her infant's death = Defendant's application for striking out Writ and Statement of Claim denied.

Mohammed, J.

1 This is an application by the defendant pursuant to Order 18 rule 19(1)(a), (b) and (d) of the Rules of the Supreme Court and the inherent jurisdiction of the Court for an Order that the Writ of Summons issued on 5 May 2006 together with the Statement of Claim filed 30 May 2006 be struck out and the action dismissed as against the defendant.

2 Counsel for the defendant submitted that the facts and matters relied on occurred more than twelve months before the issue of the writ and the claim (if any, which is denied) is barred by section 12 of the Limitation Act, 1995, which reads thus:

• (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 written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the provisions of subsection (2) shall have effect.

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

3 Hence, counsel contended that the claim is frivolous and vexatious because it raises a claim which is weak, worthless and futile. Stephenson, L.J., in Ronex Properties Ltd. v. John Laing Construction Ltd. and Others [1983] Q.B. 398 at page 408 stated:

“There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiffs' claim as frivolous and vexatious and an abuse of the process of the Court, on the ground that it is statute-barred.”

Sawyer, C.J., as she then was, in Girten v. Andreu [1988] BHS J. No. 164 starting at paragraph 20 stated:

“I think it is now trite law that where it is clear from the statement of claim that the cause of action arose outside the current period of limitation and it is clear that the defendant intends to rely on the limitation defence and there is nothing before the Court to suggest that the plaintiff could escape from that defence the claim will be struck out as being frivolous, vexatious and an abuse of the process of the Court.”

Applying both Ronex and Girten, it is asserted that the principle remains the same. The incident in question took place on the 20th March 2002 and the plaintiff instituted proceedings in the Supreme Court on the 5th May 2006. Thus, the time for bringing the action would have expired some three (3) years ago.

4 It is further contended continued counsel that by virtue of the foregoing, the proceedings are hopeless and doomed to failure. The defendant submits that the Claim amounts to an abuse of the process of the Court. In Riches v. DPP [1973] 2 All E.R. 935 at page 941, Stephenson, L.J., stated:

“There is no material put before the Court which could possibly suggest that the statute will not be a complete answer to the plaintiffs claim. I think it would be absurd for the Court, faced with an application such as this to strike out, under its inherent jurisdiction or under the rules, a claim as an abuse of the process of the Court, to shut its eyes to the fact that there is going to be raised an apparently unanswerable plea of the Limitation Act, 1939 … Why should such a claim not be an abuse of the process of the Court? Why should not...