Judge: Docs filed late, but Caymanian may continue claim against govt | Loop Cayman Islands

The content originally appeared on: Cayman Compass

A matter appeared on the Cayman Islands Grand Court judgment register recently, detailing a judge’s direction given in connection with a personal injury claim by a Caymanian against her formal employer, the Cayman Islands Customs Department (CBC). Specifically, the judge discussed whether the Caymanian had the right to continue legal proceedings against the government on the basis that her legal documents were filed “late” with the courts as per the rules of the Limitation Act.

Background

According to the judgment, the Caymanian claims that her former employer was negligent in failing to ensure her health and safety at work by exposing her to conditions that they knew or ought to have known were detrimental to her health and by failing to provide her with protective equipment. He allergic reaction first manifested itself around 2010.

The ruling goes on to say that, from January 3, 2014 the Caymanian was treated by an ENT specialist, following which the ENT specialist wrote various letters to the Caymanian’s employer alerting them to the Caymanian’s condition and advising that she should not continue to be exposed to the mold.

The Caymanian’s case is that her employer failed to act on those letters, allowing her exposure to continue, ultimately leading to long term health consequences (shortness of breath, hoarseness of her voice, speech and hearing issues) and the Caymanian’s retirement from CBC in 2018 on the basis that she was found to be medically unfit to continue to work.

In order to bring a legal claim against her employer, a writ was issued by the Caymanian on October 30, 2020.

However, a defence was filed on December 10, 2020 denying liability and raising limitation as a defence on the basis that the alleged cause of action did not arise within three years before the date of the writ and is barred by section 13 of the Limitation Act. In layman’s terms, the defence argued that the Caymanian waited too long to start her legal claim against her employer and therefore she should be barred from continuing with the proceeding.

To understand the reason for suggesting the Caymanian should be barred from continuing with her legal proceedings, one has to look at the details of the Limitation Act. According to this Act, any action for negligence, nuisance or breach of duty shall not be brought after the expiration of the period of three years from (a) the date on which the cause of action accrued or (b) the date of knowledge (if later) of the person injured.

Based on the details of the case, at the date of the hearing, the parties had agreed that the limitation period began to run from October 12, 2016.

Based on that agreed date, the limitation period for the Caymanian’s claim expired on October 12, 2019. Since the Caymanian did not file by that date and waited until a year after the deadline to file, it was argued that she was barred from submitting a claim.

However, the Caymanian explained her circumstances in that, when the Caymanian tried to get a lawyer in October 2016 and apply for legal aid to pay for legal fees, the application for legal aid was refused. It was denied by a judge of the Grand Court on October 7, 2016 because, according to the judge, the doctor’s “reports do not suggest that the applicant has suffered any permanent injury or disability… No course of action is revealed and there is no prospect of a successful claim against the Government as her employer.”

After being refused legal aid, the Caymanian reportedly said that that she believed her circumstances did not give rise to a legal claim and, as she could not afford to retain a lawyer, she took no further action.

After taking all of the facts into consideration and the discretions held by the judge, the judge said that:

… in my view there are no grounds to criticize the Plaintiff for the delay after she instructed her current attorneys… I do not think that it appropriate to visit the failings of her lawyers on the Plaintiff.

I also take into account the strength and value of the Plaintiff s claim along with the impact that the injury has had on her. It is not for the court at this stage to do more that observe that the Plaintiff appears to have a claim against the Government with reasonable prospects for success for an amount of damages that is likely to be significant to her. It is also clear, in my view, that the Plaintiff’s health, has deteriorated as has her ability to work and her enjoyment of life.

The judge concluded by saying that “the Plaintiff has discharged the burden on her to shown that the prejudice to her of allowing the Defendant to rely on its limitation defence would far outweigh any prejudice to the Defendant if this action is allowed to continue.”

The outcome, in layman’s terms, is that the judge made a direction that the three year deadline stated under the Limitation Act for the commencement of Caymanian’s claim should not apply to her claim and she could continue with her case against the government.