David Carol Bristol Appellant v Dr. Richardson St. Rose Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: RAWLINS, J.A.,BARROW, J.A.,Justice of Appeal,Hugh A. Rawlins,Brian Alleyne, SC,Chief Justice [Ag.],Denys Barrow, SC
• Judgment Date: 20 February 2006
• Judgment citation (vLex): [2006] ECSC J0220-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CIVIL APPEAL NO.16 OF 2005
• Date: 20 February 2006

[2006] ECSC J0220-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mr. Hugh A. Rawlins Justice of Appeal

CIVIL APPEAL NO.16 OF 2005

Between:

David Carol Bristol

Appellant

and

Dr. Richardson St. Rose

Respondent

Appearances:

Mr. James Bristol for the Appellant

Mr. Leonard Ogilvy, with him Mr. Alberton Richelieu for the Respondent

RAWLINS, J.A.

1 This appeal is against a judgment in which the trial judge dismissed a claim for damages for defamation, which the appellant, Dr. Bristol, brought against the respondent, Dr. St. Rose. Dr. Bristol alleged that Dr. St. Rose libeled him in a letter dated 5^th November 2002 that was addressed to the President of the St. Lucia Medical and Dental Association.1 The letter was copied to the Minister of Health, the Permanent Secretary in the Ministry of Health, the Chief Medical Officer and the Administrator of the St. Jude's Hospital.

2 In the judgment, the learned judge found that the letter was defamatory. He held, however, that it was published on an occasion of qualified privilege. He further held that the defence of qualified privilege was not lost, because Dr. St. Rose was not actuated by express malice in publishing the letter. He therefore dismissed the claim. In doing so, the learned judge opined that even if Dr. Bristol had prevailed on his claim, he would have been entitled to a maximum of about $7,500.00 in damages. The judge ordered each party to pay his own costs, because, according to him, neither had covered himself in glory in the case.

3 Dr. Bristol appealed the judge's findings on qualified privilege, express malice and the maximum amount of damages to which he is entitled. He asked this Court to find in his favour and to award him damages in the sum of $50,000.00 or such other sum as this Court thinks just. Dr. Bristol did not appeal against the judge's order that each party should bear his own costs. On the other hand, Dr. St. Rose cross-appealed on the sole ground of costs. He asked this Court to vary the judge's cost order and to direct that he should be awarded $14,000.00 prescribed costs in the High Court proceedings. Dr. St. Rose also asked this Court to dismiss Dr. Bristol's appeal, allow his cross-appeal and award him costs in the appeal.

4 Dr. St. Rose did not appeal against the judge's finding that the letter defamed Dr. Bristol. It is also noteworthy that although Dr. St. Rose questioned the judge's finding that he ran a hopeless defence of justification; his cross-appeal does not specify a ground of appeal against this finding. Because of this, learned Counsel for Dr. Bristol submitted that there is no ground in the cross-appeal that challenges the finding on justification upon which Dr. St. Rose could rely in these appeal proceedings. He cited as authority rules 62.4(1)(c) and 62.4(8) of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000.2

5 Compendiously, rules 62.4(1)(c) and 62.4(8) state that a notice of appeal must give details of the grounds of an appeal, and that an appellant may not rely on any

ground not mentioned in the notice of appeal without the permission of the court. I would additionally refer to rule 62.4(9). It states that although the court is not confined to the grounds set out in a notice of appeal, the court may not make its decision on any ground that is not set out in a notice of appeal, unless the respondent has sufficient opportunity to contest the ground. Solicitors for Dr. St. Rose did not apply for permission to rely on a ground of appeal that challenges the Judge's finding on justification. The matter was not raised in a sufficiently timely manner to provide Dr. Bristol with an opportunity to properly contest it as a ground of appeal. Accordingly, the judge's finding on the issue of justification does not arise as a contestable issue in this appeal.

The issues

6 Four issues arise on this appeal. The first is whether the learned trial judge erred when he upheld the defence of qualified privilege. If the appeal fails on this ground because the defence of qualified privilege is available to Dr. St. Rose, the second issue would be whether the trial judge erred when he found that Dr. Bristol failed to allege or prove that Dr. St. Rose was not actuated by express malice when he published the letter of 5^th November 2002. The third issue would then be whether the judge erred in his opinion as to the amount of damages to which Dr. Bristol would have been entitled if he prevailed in his claim, and fourth, the issue of costs. First, however, I shall outline the brief facts.

The Brief Facts

7 The parties both worked as consultant surgeons at the St. Jude's Hospital in Vieux Fort. Dr. Bristol was employed there in November 1993. Dr. St. Rose was employed by the government of St. Lucia as an orthopedic surgeon in 1975 and he also worked at the St. Jude's Hospital as a general surgeon. In October 2002, Dr. Bristol received a letter from the Hospital Administrator, which informed him that his contract of employment to work at the Hospital would not be renewed. Dr. Bristolcontacted the St. Lucia Medical and Dental Association ("the Association"). He sought the assistance of the Association in an attempt to get his contract renewed. The Association is a voluntary professional organization and a registered Union which is recognized as a bargaining body for medical doctors in St. Lucia. It was in this regard that it sought to intervene in the matter. Both parties were members of the Association at the time.

8 In his letter to the President of the Association, Dr. St. Rose expressed "utter dismay" at the enthusiasm with which the Association was trying to address the non-renewal of Dr. Bristol's contract. He set out reasons why he thought that Dr. Bristol's contract should never be renewed and why he should not be given privileges at St. Jude's or indeed at any government Hospital.

9 Dr. Bristol complained that the following statements contained in Dr. St. Rose's letter defamed him:

"This doctor's profound arrogance and conceit have generated an unhealthy atmosphere at St. Jude's Hospital and has resulted in patient death and morbidity. … Dr. Bristol has never been an asset to St. Jude Hospital. I see no merit in the support for renewal of contract from S.L.M.D.A. I strongly object to his reappointment in the Government Service and I do not think he deserves to be given privileges at any government hospital."

10 Dr. Bristol alleged in his statement of claim that the foregoing defamatory words were written and published in the context of the following statements which the letter also contained:

"The volunteer doctors at St. Jude Hospital have … given yeoman service. Dr. Bristol stopped many from coming to St. Jude's for reasons only known to him.

• • He stopped plastic surgeon Dr. Goldstein, an outstanding one, was stopped because he was 'rude'.

• • Dr. Dusan, Anaesthetist, was fired because he disagreed with Bristol's management of a head injury patient for surgery;

• • The French Oncologist was stopped — patients have now to go to Martinique to be assessed, come back to St. Lucia, then return to Martinique for Radiotherapy.

I can go on and on at a discussion with you about the doctor's unconscionable practices. The specialist services given at St. Jude Hospital are no longer available on the scale like before — The plastic surgery, Hand Surgery, Paediatric Othopaedrics, Sub Speciality Urology, etc. All this good work was discontinued by Dr. Bristol, supported by the clique in this S.L.M.D.A. Dr. Bristol was the Medical Director, Administrator and Accountant at St. Jude Hospital. He was all powerful and systematically rid St. Jude of the people he thought would take away some of his power. He was out of control and his worsening arrogance and impertinence may spell doom for St. Jude Hospital."

11 The authorities did not revoke the decision to terminate Dr. Bristol's contract. Dr. Bristol instituted the claim in these proceedings against Dr. St. Rose. He complained in the claim that in their ordinary and natural meaning, the statements which Dr. St. Rose made in the letter, in their context mean, and would be understood by ordinary, reasonable and fair-minded readers to mean, that Dr. Bristol caused the death of patients at the Hospital by arrogantly, conceitedly, deliberately, selfishly, wrongfully, unconscionably and unprofessionally depriving patients of the specialist services of doctors who could have saved their lives. Dr. Bristol also claimed that the words would be understood by such readers to mean that he was not fit to be reappointed as a doctor in the government or public service or to be given any privileges of any kind therein, because he is the kind of doctor who would cause the death of patients at the Hospital by arrogantly, conceitedly, deliberately, selfishly, wrongfully, unconscionably and unprofessionally depriving patients of the specialist services of doctors who could save their lives, and for this he is a professional liability.

12 Dr. Bristol insisted that the statements complained of are false, except the statement that the volunteer doctors at the hospital had given yeoman service. He said that Dr. St. Rose knew or ought to have known of the falsity of the statements, or he was recklessly indifferent as to whether they were false. He alleged that the words seriously injured him in his character, credit and reputation and in his profession as a medical doctor and surgeon; brought him into publicscandal, odium, hatred, contempt and ridicule; lowered him in the estimation of right thinking persons, hurt his feelings and caused him to suffer damage.

13 The first question is whether the defence of qualified privilege was available to Dr. St. Rose. As a precursor, however, there are areas in which this appeal seeks to...