[1] Dr. Martin G.C. Didier [2] Dr. Kannan Mathiprakasam [3] Dr. Guruswamy Ramachandrappa Appellants v Royal Caribbean Cruises Ltd Respondent Royal Caribbean Cruises Ltd Appellant v [1] Medical Associates Ltd [2] Dr. Martin C Didier [3] Dr. Kannan Mathiprakasam [4] Dr. Guruswamy Ramachandrappa Respondents

• Jurisdiction: St Lucia
• Judge: Pereira CJ
• Judgment Date: 06 June 2016
• Judgment citation (vLex): [2016] ECSC J0606-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: SLUHCVAP2014/0024
• Date: 06 June 2016

[2016] ECSC J0606-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

SLUHCVAP2014/0024

Between:

[1] Dr. Martin G.C. Didier

[2] Dr. Kannan Mathiprakasam

[3] Dr. Guruswamy Ramachandrappa

Appellants

and

Royal Caribbean Cruises Ltd.

Respondent

Consolidated With

SLUHCVAP2015/0004

Between:

Royal Caribbean Cruises Ltd

Appellant

and

[1] Medical Associates Ltd

[2] Dr. Martin C Didier

[3] Dr. Kannan Mathiprakasam

[4] Dr. Guruswamy Ramachandrappa

Respondents

Appearances:

Mr. Geoffrey DuBoulay, with him, Ms. Sardia Cenac-Prospere for the Appellants in appeal SLUHCVAP2014/0024 (the 2 ^nd— 4 ^th Respondents in appeal SLUHCVAP2015/0004)

Mr. Dexter Theodore for the Respondent in appeal SLUHCVAP2014/0024 (the Appellant in appeal SLUHCVAP2015/0004)

Interlocutory appeal — Civil appeal — Medical negligence — Striking out pursuant to CPR 26.3(1)(b) — Summary judgment pursuant to CPR Part 15 — Contract — Agency — Tort — Duty of care owed to medical patient — Whether claim brought by respondent was statute barred — Interpretation of articles 2121(7) and 2122 of Civil Code — Indemnity — Contribution — Whether RCC was joint tortfeasor for purpose of claiming contribution pursuant to article 989C(1)(c) of Civil Code — Legal test for striking out statement of case or part of it — Legal test for summary judgment — Whether legal tests for striking out and summary judgment distinct and separate

Mr. Paul Sterling was an employee of Royal Caribbean Cruises Ltd. ("RCC") who worked aboard the cruise ship "Explorer of the Seas". One day, Mr. Sterling suddenly fell seriously ill while on the ship. He was taken off the vessel on 3 ^rd April 2010 while it was docked in Saint Lucia in order to receive treatment at one of the local hospitals, known as Tapion Hospital. Tapion Hospital is owned, managed and administered by the first respondent in appeal SLUHCVAP2015/0004, Medical Associates Ltd. A company called Platinum Port Agency Incorporated ("Platinum") handled the necessary arrangements for transporting Mr. Sterling to the hospital. Platinum formally indicated to Medical Associates Ltd., by way of letter, that it would be responsible for settling the medical charges incurred in treating Mr. Sterling at the hospital. Mr. Sterling was brought to Tapion Hospital and given medical treatment there. However, when his condition was observed post-treatment by doctors at the hospital, it was advised that he be airlifted out of Saint Lucia to receive further medical care elsewhere. By this point, Mr. Sterling was in a very poor state of health. He was air evacuated to a hospital in the United States.

RCC instituted proceedings against Medical Associates Ltd. in December 2012, alleging that Mr. Sterling had suffered 'respiratory failure with severe hypoxia and/or hypoxemia and/or hypotension and/or preventable hypoxic encephalopathy' as a result of the treatment which he had received at Tapion Hospital. RCC further stated in its claim that Mr. Sterling will require ongoing clinical healthcare and nursing for the rest of his life and will be incapable of performing normal, healthy, adult functions. RCC alleged that Mr. Sterling (by his lawful representatives) sought damages from it (RCC) arising out of the medical treatment received by Mr. Sterling while he was in Saint Lucia and that after various negotiations the parties were able to agree on a final settlement in the amount of US$5,750,000.00. This sum was inclusive of loss of earnings, past and present pain suffering and all potential claims by Mr. Sterling or his estate. RCC sought to recover the sums which it had paid out to Medical Associates Ltd. through the commencement of the local proceedings. RCC alleged that the medical treatment received by Mr. Sterling at Tapion Hospital was substantially below the required and/or proper and/or reasonable standard of care.

An amended claim form and statement of claim were filed by RCC on 25 ^th June 2013 which added to the claim, as defendants, four doctors who had attended to Mr. Sterling at Tapion Hospital in April 2010. Three of these added defendants are the appellants in appeal SLUHCVAP2014/0024 ("the Doctors"). RCC sought relief under four separate heads: i) contract; ii) tort; iii) indemnity and/or contribution and/or restitution pursuant to US law provisions and article 989C(1)(c) of the Civil Code; 1 and iv) contribution at common law. On 13 ^th May 2014, the Doctors made an application to have RCC's claim 'struck out and/or dismissed' with costs and in the alternative, security for costs of the proceedings. The application was brought pursuant to rules 15.2, 26.3(1)(b), 24.3(1)(f) and 24.3(1)(g) of the Civil Procedure Rules 2000 ("CPR"). Rules 15.2 and 26.3(1)(b) deal with summary judgment and striking out a statement of case respectively, while Part 24 of CPR deals with security for costs. The main ground of the application (which was further particularised) stated that RCC's claim against the Doctors 'does not disclose any reasonable ground for bringing the claim and/or has no reasonable prospect of success'. The Doctors challenged RCC's claim under all heads apart from contribution at common law. In particular, in relation to the claim in tort, the Doctors contended that this claim was statute barred on the basis that it fell to be considered under article 2122 of the Civil Code rather than article 2121(7) of the Civil Code.

The learned master found that RCC's claim did disclose a cause of action in contract. She held that whether there existed a course of dealings between Platinum and Medical Associates Ltd. (as had been pleaded by RCC), with the Platinum acting as agent for RCC, was a matter for trial following the assessment of all evidence advanced and a determination of whether RCC was a reasonably contemplated party to the contract. She found however that RCC's claim did not disclose a cause of action in tort, nor in indemnity and/or contribution and/or restitution (pursuant to US law provisions and article 989C(1)(c)). Accordingly, she refused to strike out or dismiss the contractual claim, but struck out the tort and indemnity/contribution/restitution claims from the pleadings. Her basis for striking out the claim in tort however was not that it was prescribed as the Doctors had alleged — she found that article 2121(7) was applicable in the circumstances and so RCC's claim had been brought in time. Both the Doctors and RCC appealed the learned master's decision. The Doctors challenged, by way of appeal, the learned master's finding

that RCC's claim in tort is not prescribed, based on her construction of article 2121(7). They contended that the learned master erred in her interpretation of the article. The Doctors also challenged, by way of counter notice, the learned master's reasoning and findings on the issue of whether RCC was a joint tortfeasor liable for the purposes of claiming contribution under article 989C(1)(c) of the Civil Code, as well as the basis of the learned master's decision on the contribution/indemnity claim at common law. RCC, on the other hand, complained that the learned master ought not to have struck out its claim in tort, as well as its claim for indemnity/contribution/restitution based on US law and article 989C(1)(c). RCC argued (among other things) that the learned master erred as to the proper test to be applied and/or the application of such test in relation to the striking out of a case at a preliminary stage. RCC further argued that the learned master erred in failing to allow for the fact that the matter is at a preliminary stage (prior to disclosure of documents, exchange of witness statements and expert evidence) and therefore the evidence before the court was necessarily far from complete.

Held: dismissing the Doctors' appeal but allowing their counter notice of appeal, and allowing RCC's appeal in part; setting aside the decision of the learned master striking out RCC's claim in tort so that it may proceed to trial; striking out RCC's claim in indemnity and/or contribution and/or restitution (pursuant to US law provisions and article 989C(1)(c) of the Civil Code); ordering that RCC's claim in contribution/indemnity at common law be allowed to proceed to trial; and ordering that costs be costs in the cause in the matter below, that:

1. The legal tests for entering summary judgment pursuant to CPR 15.2 and striking out a party's statement of case pursuant to CPR 26.3(1)(b) are not the same and should not be confused with each other. The summary judgment and strike out procedures are distinct — they have different procedural requirements, are used in different circumstances and have different legal consequences. In particular, the two cannot operate simultaneously. In disposing of a claim using the Part 15 summary judgment procedure, the legal issues in the case are considered by the court and then it is determined, on a balance of probabilities and in light of the affidavit evidence adduced by the parties, whether one party or the other has no real prospect of succeeding on the claim. A judgment entered on a summary judgment application is a judgment on the merits which operates as issue estoppel. No further litigation on the same issue(s) will be entertained by the court. On the other hand, an application for a party's statement of case to be struck out pursuant to CPR 26.3(1)(b) is decided by the court solely on the parties' pleaded cases before it. All facts pleaded in the statement of case are assumed to be true for this purpose and no additional evidence is adduced. If the court finds that the pleadings are untenable as a matter of law and disclose no reasonable ground for bringing or defending the claim, then the statement of case may be struck out. Striking out, however, does not produce...