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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