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THE COURT of Appeal has reserved its decision in the North West Regional Health Authority's (NWRHA) appeal against a judge’s finding that it had a duty to provide a safe place of work for a labourer shot in the face by a gunman at the Port of Spain General Hospital in 2013.
Three people were injured in the shooting on June 13, 2013, including Alexandria Badal, the daily-rated labourer who sued the NWRHA and Amalgamated Security Services Ltd. A teenager was eventually slapped with seven charges arising out of the incident.
In a ruling in her negligence claim, on April 17, 2019, Justice David Harris found Badal had proved the NWRHA had breached its duty to provide a safe workplace to "protect against the very incident that resulted in her loss and injury."
He held she was entitled to damages for the gunshot injury to her face, which left her with memory loss, blackouts, seizures and pain for some time.
In awarding her judgment, Harris ordered damages to be assessed by a master or a registrar of the court.
The NWRHA appealed and on Wednesday, Justices Peter Rajkumar, Ronnie Boodoosingh and Maria Wilson reserved their ruling after hearing submissions from the authority’s lead counsel, Douglas Mendes, SC, and Badal’s lead attorney, Kern Saney.
Mendes said it had to be an exceptional case to find a third party responsible for such an incident. He urged the judges to determine if there was a high degree of “foreseeability" on the authority’s part as it controlled the hospital.
He said before that shooting, there had been no similar incident like it at the hospital, also pointing out that the target was not a patient, but a visitor.
Mendes referred to an internal security assessment report prepared after the shooting which spoke of a deteriorating safety environment, which should have alerted the authorities to the need to beef up security at the hospital because of increased risks of gang violence.
He said the claims in the report of gang activity at the hospital because of increased numbers of patients, including gang members, seeking attention for shooting injuries, did not provide the basis for concluding there was a high degree of “foreseeability,” or that it was inevitable that a shooting would take place there.
Mendes said it was important for the judge to make a correct assessment of the facts, and the facts were that there was no history of violent incidents at the hospital necessitating additional armed security.
He also said the report, to which the judge also referred, was inadequate evidence as he urged the judges to overrule the decision if they were of the opinion the original judge was “plainly wrong” to come to the findings he did.
“Is there established, in law, the duty of the hospital to protect visitors from violence meted out by third parties?”
In terms of a duty to provide a safe place of work, Mendes also questioned, “How far does that duty take you? Is it fair and reasonable to hold the hospital liable in those circumstances?”
In response, Saney argued that the NWRHA was the employer and Badal was not a visitor.
“That affects the scope of duty that NWRHA had towards her.”
He quoted extensively from the internal report and its recommendations, saying Badal’s case was that the hospital failed to provide a safe place of work for her.
“She was exposed to an unnecessary risk.”
Also representing the NWRHA was Kirk Bengochea. Aaron Maharabir and Sheetal Seepaul also represented Badal at the appeal.
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