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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2013-01909
BETWEEN
AEDEN BALWAH
(By Shelly-Ann Balwah his
Mother and Next Friend)
Claimant
AND
SURGI-MED CLINIC CO. LIMITED
DR. MARWAN AHMAD ALSAYED ABDULLA
Defendants
Before The Honourable Mr. Justice Kevin Ramcharan
Appearances:
Dr. Michael Powers, QC, Mr. Rajiv Persad and Mr. Ricardo Williams, instructed by
Ms. Niala Narine for the Claimant
Mr. Chatram Sinanan for the First Defendant
Mr. Anand Ramlogan and Mr. Kent Samlal instructed by Ms Kavita Sarran for the
Second Defendant
DECISION
Facts
1. Before the court are two applications, an application for permission to use an expert
report of Dr. Wellesley St. Clair Forbes filed on the 26th May, 2017 and an application
for permission to amend the Reply filed on the 31st May, 2017. The application to
amend was filed on the 1st June, 2017 and is supported by the affidavit of Ms. Niala
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Narine and the application for permission to use the report is dated the 6th June, 2017
and supported by the affidavit of Ms. Niala Narine.
2. This action relates to the circumstances surrounding the birth of the claimant on the 19th
May, 2002. He was subsequently diagnosed with cerebral palsy, and the issue for
ultimate determination is whether his condition was caused by the negligence of the
Defendants or either of them.
3. The applications are related in that the application for the amendment to the Reply seeks
to change an admission to an averment in the Defence that a scan of the claimant’s brain
taken 19 days after his birth was “normal”, to a denial, and an averment that the scan
showed that there was an abnormality. The report is the basis upon which the claimant
seeks to establish this.
4. It is to be noted that the applications were filed shortly before the dates fixed for the
trial, the 5th June, 2017. At a Pre-trial review held on the 1st June, 2017, the second
defendant sought an adjournment of the trial date, and the Claimant indicated that in
light of the report which it had received relative to the brain scan, that it would be
prudent to vacate the days set aside for the trial to deal with the instant applications.
Submissions
5. At the hearing of the applications, the Claimant briefly sought to submit that it was not
strictly necessary to amend the Reply. The Court disagrees with that position. The
current state of the pleadings is that the Claimant accepts that the scan showed normal
brain activity, and it is trite law that a party may not advance evidence which is contrary
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to his pleadings. In the circumstances, the Claimant would not be able to adduce
evidence that the brain scan did not in fact show normal brain activity. In those
circumstances, it would be necessary to adduce the report.
6. The Claimant sought to rely on the affidavit filed in support of the Application to
adduce the expert’s report in support of the application to amend the reply. The
Defendants objected to this and also objected to paragraphs in the affidavit which
purported to state that it was not possible to copy the scan in Trinidad and Tobago on
the basis that this was expert evidence. On the first issue, the court is of the view that
the applications are inextricably bound, and further, in these interlocutory proceedings,
the Claimant would have been at liberty to file a notice indicating that it intended to
rely on the second affidavit in support of the application to amend the Reply. In the
circumstances, that objection by the Defendants in the court’s view is overly technical.
7. With respect to the objection that the evidence is akin to expert evidence, it is to be
noted again that this is an interlocutory application. It is clear from the tenor of the
affidavit, that this is what the deponent was advised. It would have, of course, been
more appropriate for her to say that “we were told” or words to that effect, but the court
is of the view that in the circumstances, it would not be appropriate to strike out that
evidence.
8. It is also to be noted that prior to these applications, the court as then constituted and
the parties have taken a very permissive approach to the number of experts. There are
no fewer than 12 expert reports in the matter, and the thrust of the Defendants’
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submissions related to the application to amend and not the application for the expert
report.
9. The first attack on the application to amend the Reply was that this was an issue that
ought to have been pleaded in the Statement of Case, and therefore could not now be
raised in the Reply. The Court does not agree. The Statements of Case (Statement of
Case, Defence and Reply) are there to state a short statement of facts on which the party
wishes to rely. No more and no less is required. The condition of the Claimant’s brain
at the time of the brain scan is not a fact on which the Claimant intends to rely, but
rather, the evidence upon which it intends to prove those facts, that is to say the fact
that the treatment administered to the Claimant and his mother was negligent.
10. The Court notes with some concern that there is a tendency in modern pleadings to
routinely lay out all the evidence upon which the parties intend to rely, to the extent
that they read more like Witness Statements in the Third Person rather than proper
pleadings. This is a practice that ought not to be encouraged.
Discussion on Law
11. The provisions with respect to amending a Statement of Case (including a reply) is to
be found at Rule 20.1(3) and (3A) of the Civil Proceedings Rules 1998 (as amended).
The Amended rule reads as follows:
“(3) The court shall not give permission to change a statement of case after the
first case management conference, unless it is satisfied that
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(a) there is a good explanation for the change not having been made prior to that
case management conference; and
(b) the application to make the change was made promptly.
(3A) In considering whether to give permission, the court shall have regard to
(a) the interests of the administration of justice;
(b) whether the change has become necessary because of a failure of the party or
his attorney;
(c) whether the change is factually inconsistent with what is already certified to be
the truth;
(d) whether the change is necessary because of some circumstance which became
known after the date of the first case management conference;
(e) whether the trial date or any likely trial date can still be met if permission is
given; and
(f) whether any prejudice may be caused to the parties if permission is given or
refused”.
12. From the above it can be seen that there are two levels to the criteria. Firstly, the party
wishing to amend must be able to show that there was a good explanation why the
application was not made before the first Case Management Conference, and secondly
it must be shown that the application was made promptly. These criteria are mandatory,
and must be satisfied before that court can consider the matters listed in (3A).
The Threshold Test: Was There a Good Explanation
13. With respect to whether there is a good explanation, it is to be noted that the Rule is
quite specific as to the time frame. The Claimant has to establish that there was a good
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reason why the application to amend was not made prior to the first Case Management
Conference. That is to say before the first hearing of the first Case Management
Conference1. The Defendants took great issue with the fact that there was a passage of
some 2 years between the first of the Expert reports which made reference to the normal
brain scan and the claim for negligence. However, this was after the first CMC, and
therefore is not relevant to the mandatory test. It will be relevant in the (3A)
considerations, but not here.
14. The explanation proffered by the Claimant for the application being made when it was
is that there was only one copy of that brain scan, and that this scan had already been
interpreted by the San Fernando General Hospital, the strategic position was taken that
it was better not to take the risk to send the sole irreplaceable copy of the scan abroad
to be read.
15. The situation changed a bit when expert report from the Defendants suggested that the
fact of the normal brain scan suggested that the Claimant’s injury was ante natal, and
not due to the acts of the Defendants. This first put the Claimant on notice that there
was a need to look at the scan, and caused a reassessment of the situation. However,
when considering it, they still came down with the view that it was not worth the risk
of losing the scan to have it examined abroad.
16. Further expert reports were subsequently tendered by the Defendants which essentially
made the point that the fact that the brain scan 19 days after the Claimant’s birth showed
normal brain activity, was significant to show that the Defendants were not liable for
1 See Estate Management and Business Development Company Ltd v Saiscon Ltd Civ App P 104 of 2016 per Jamadar, JA paragraph 21
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negligence. This caused the Claimant to reconsider again the risk of sending the report
abroad, and then felt that it was indeed worth the risk to do so. Upon receiving the
report on the brain scan, it was discovered that there was in fact abnormal brain activity.
That report was received on 26th May, 2017 (a Friday), and the application to amend
was filed on the 1st June, 2017.
17. The question therefore is whether the above can constitute a good explanation for not
making the application prior to the first Case Management Conference. In this
jurisdiction, it is recognized that the First Case Management Conference is a process
rather than simply the day that Case Management is first dealt with. The First Case
Management Conference ends at the close of the hearing of the Case Management
Conference where an act of active judicial case management first occurs2.
18. In the instant case, the First Case Management Conference came up for hearing on the
5th November, 2013, and concluded at the very latest, on the 10th February, 2014, when
directions for disclosure and the filing of Statements of Issues were made.
19. On any basis for determining up to when the good explanation must be provided,
whether prior to the first hearing of the First Case Management Conference, or at the
First Case Management Conference, it is clear that the Claimant would not have been
aware of any reason to doubt the reading of the scan, or any urgent need to get a second
opinion.
20. In an ideal world, one can argue that it should have been obtained in any event, this
must be balanced against the fact that there was only one copy which could not be
duplicated within Trinidad and Tobago, and there were obvious risks in sending it
2 Ibid paragraph 25
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abroad. As noted by the Court of Appeal in Rawti Roopnarine and Anor v Harripersad
Kissoo and Ors3: “an explanation therefore that connotes real or substantial fault
on the part of the person seeking relied cannot amount to a good explanation for
the breach. On the other hand, a good explanation does not mean the complete
absence of fault. It must at least render the breach excusable. As the Court of
Appeal noted in Regis, supra, what is required is a good explanation, not an
infallible one. When considering the explanation for the breach it must not be
therefore be subjected to such scrutiny so as to require a standard of perfection”.
21. It is the court’s view, in the circumstances of the instant case, that the explanation
provided does not connote real or substantial fault on the part of the Claimant. At all
times they were engaged in a balancing act of whether to send the scan or not. At the
time of the First Case Management Conference, there was nothing to suggest that it was
worth the inherent risk of sending it out of the jurisdiction. The breach is therefore
excusable.
The Threshold Test: Was the Application made Promptly
22. The second part of the mandatory test deals with whether the application was made
promptly. The Defendants have argued that the application was not made promptly
because the first report which ought to have raised the need for a second look at the
scan was filed in March 2016, a year before the application was filed. They argue that
the Claimant was at fault for not obtaining the report after the first report, instead of
waiting till May 2017 to obtain it.
3 Civ App 52 of 2012
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23. If it were the case that the 2016 reports were the triggering events which caused the
Claimant to send the scan for a second opinion, the court would have been more
inclined to accept the Defendants’ argument with respect to promptitude. As it stands
however, it was not. The Claimant was still engaged in the balancing exercise as to
whether to take the risk to send the scan. It was the 2017 reports and their contents
which tilted the balance in favour of sending the scan abroad despite the risks. The
Claimant was always weighing the factors. In hindsight it may seem obvious that it
should have been sent earlier, hindsight being 20/20, but the court does not think that
the course of action the Claimant took to be unreasonable in the circumstances.
24. In those circumstances, where the report was received on the 26th May, 2017 which was
a Friday, and considering that the 30th May, 2017 was a public holiday, the court is of
the view that the application was made promptly.
The “Discretionary Factors”
25. Having satisfied the threshold tests, the court must now consider the factors under (3A).
The question of the interests of the Administration of Justice will be considered later
on. With respect to whether there was any fault by the party or his Attorney at Law, it
could be argued that there was fault on the part of the Claimant and his Attorneys at
Law in not sending the scan to be analyzed earlier. However, as noted above, this is
not a case where there was a neglect in sending it, but rather a continuous careful
consideration of whether it was worth the risk to send the scan out of the jurisdiction,
considering that it could not be copied, and there was therefore only one copy of the
scan. One may argue as to whether that should have been done in 2016 or 2017, but if
there is any fault, it is minimal.
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26. As the court has observed before, the amendment is factually inconsistent with what is
already certified to be the truth. However, there is a justifiable reason for this as the
Claimant was in the original reply relying on the report on the scan that was available
to him. There is now another report on which the Claimant wishes to rely which says
otherwise. In the circumstances, this is not a case where the Claimant is changing her
story, but rather, reflecting what has become known to him subsequent to the filing of
the original Reply.
27. It is clear that the change has become necessary because of some circumstances which
became known after the date of the first Case Management conference.
28. The matter had been fixed for trial from the 5th to the 9th June, 2017. At the hearing of
the pretrial review on the 1st June, 2017, there were 3 applications before the Court, the
2 instant applications, and an application by the First Defendant for an adjournment of
the Trial. The Attorney at Law for the Second Defendant at all times indicated that he
was ready to proceed and that he was not consenting to the adjournment. He however
indicated that he was not in a position to deal with either of the Claimant’s applications
given the short time frame. Further, there was an issue with the trial bundles. As a
matter practicality then, the trial dates were vacated and these applications were fixed
to be heard on the 9th June, 2017, the last date fixed for the trial of the action.
29. In the circumstances, whether or not permission is granted, the trial date cannot be met.
This head therefore takes on a lesser prominence than it ordinarily would.
30. On the question of prejudice, both sides have rightly claimed that they will suffer great
prejudice if permission is granted or not. On the Claimant’s side, it is pointed out that
without the amendment, the Claimant would not be able to put forward the position
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with respect to the true state of the brain scan and his case would be greatly
disadvantaged by that. On the Defendants’ side, the further delay to the proceedings,
as well as the extensive costs which the amendment would necessarily incur were
raised. It was further noted that the relevant experts who were scheduled to give
evidence via video link, had cleared their schedule to be available to give evidence.
31. While the court certainly sympathizes with the Defendants the fact of the matter is that
by the time this application was argued, the trial dates had already been determined.
Further, the First Defendant had applied for the trial to be adjourned. The prejudice
therefore had already been suffered by the Second Defendant by the time the
application came to be determined. Additionally, the Second Defendant could be
somewhat be compensated for by an award of costs. No such ameliorating
circumstance lay in favour of the Claimant. In the circumstances, the issue of prejudice
came down marginally on the side of the Claimant.
32. With respect to the issue of the administration of justice, the administration of justice
will always be served best when the court’s resources are used efficiently and
effectively. The actions of the Claimant in that regard can in no way be said to have
utilized the court’s resources efficiently or effectively. Five days were set aside for the
hearing of this trial. The Court staff spent many hours making arrangements with
expert witnesses from abroad, liaising with IT personnel in the judiciary to ensure that
the video conferencing machinery was working. The court itself could not list any other
matters during the dates fixed for the trial, and had to prepare for the trial by going
through the extremely voluminous file in detail.
33. The actions of the Claimant which have effectively caused the trial dates to be vacated
therefore were totally inimical to the interests of the administration of justice in that
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regard. However, the court is of the view that if the application were not granted, there
would be a good chance that the court would be making a decision based on facts or
evidence which were provably wrong. To do so would also be inimical to the
administration of justice and the overriding objective. In doing the proper balancing
act, the court is of the view that, especially as the trial dates had been vacated by the
time the application was heard, the interests of the administration of justice lay in
attempting to get the most accurate interpretation of the scan possible.
34. Therefore, when one considers the application in the round, the balance of the factors
in (3A) falls in favour of allowing the amendment.
35. As noted earlier, once the amendment is allowed, the report would have to be allowed
to enable the Claimant to prove that averment.
Conclusion
36. In the circumstances, the court will grant an order in terms of the applications dated the
1st June, 2017 and 6th June, 2017. On the question of costs, the usual order, as directed
by rule 67.11(3)(c), is that a party seeking to amend a statement of case must pay the
costs of the application. The court does not see any reason why it should depart from
this directive. Further, the issue of the costs arising out of the adjournment of the trial
had been reserved. The filing of the application a mere 4 days before the hearing of the
trial and on the morning of the Pre-trial review in no small way contributed to the trial
dates being vacated, as the Second Defendant did not have sufficient time to prepare
for the application. As noted earlier, the Second Defendant would have incurred
substantial costs in putting his house in order for the trial, including getting their experts
ready. In the circumstances, it would only be fair that the Claimant bear the costs of
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the trial thrown away. Of course, as the First Defendant also wanted an adjournment,
there can be no issue of any award of costs thrown away being made in its favour.
37. In the circumstances, the Claimant is to pay to the Defendants of the Applications filed
on the 1st June, 2017 and 6th June, 2017. With respect to the Second Defendant, these
costs are certified fit for Senior and Junior Counsel. With respect to the First Defendant
the costs are certified fit for Junior Counsel. Additionally, the Claimant is to pay the
Second Defendant’s costs thrown away for the adjournment of the trial, certified fit for
Senior Counsel. There is no order as to the First Defendant’s costs thrown away.
Dated the 22nd day of September, 2017
Kevin Ramcharan
Judge