Appeal Court dismisses NWRHA appeal over worker shot at hospital

In a majority ruling, the Court of Appeal on Thursday dismissed the North West Regional Health Authority's (NWRHA) appeal against a decision in favour of one of its employees who was shot in the face at the Port of Spain General Hospital a decade ago.

The NWRHA had appealed the ruling of Justice David Harris, who on April 17, 2019, upheld Alexandria Badal’s negligence claim against the NWRHA and ordered that the appropriate compensation be assessed by a High Court Master or registrar.

In their majority ruling, Justices of Appeal Peter Rajkumar and Ronnie Boodoosingh said the trial judge was entitled to conclude “there was a failure to act or that the NWRHA had acted inadequately to avoid the risk to Ms Badal.”

Justice Maria Wilson dissented.

Three people were injured in the shooting at the hospital on June 13, 2013, including Badal, a daily-rated labourer. She sued the NWRHA and a security firm that provided services to the hospital.

A teenager was eventually slapped with seven charges arising out of the incident.

Badal filed the lawsuit seeking compensation for the long-lasting effects of her injuries, which included seizures, memory loss, blackouts, and continuous pain in her face, shoulders, neck, head, back and legs.

The NWRHA, which manages the hospital, denied any wrongdoing, as it claimed that it took all reasonable steps to ensure that Badal would not be exposed to the risk of damage or injury whilst on the job.

It filed an ancillary claim against its security provider Amalgamated Security Services Ltd, as it claimed the company was required to indemnify it against any possible compensation to which Badal may be entitled.

Harris dismissed the ancillary claim, saying the NWRHA had failed to prove the company had fallen short of its obligations under its contract.

Presenting submissions in the appeal, heard in March, Senior Counsel Douglas Mendes, who led the NWRHA’s legal team, claimed Harris was wrong to have found his client negligent based on the risk of the shooting being “reasonably foreseeable.”

However, Boodoosingh, who wrote the majority decision, held that Harris had an internal report from the manager of security services at the NWRHA, dated June 14, 2013, which made certain recommendations for the safety of staff and the public accessing services at the hospital, and relied on it.

The majority ruling said the judge was entitled to accept the evidence of the security managers at the NWRHA and the security firm.

The judges also agreed that the NWRHA’s report accepted the risk of someone being shot on the hospital’s compound was “foreseeable,” since it noted there had been a high influx of patients wounded as a result of gang activity, turf wars and police shootings in the six months before the incident. The report also noted there was an increase in gang members at the hospital.

“The trial judge’s conclusion could not be faulted that if the recommendations of that report to provide an armed response had been acted upon, this would have provided a sufficient deterrent on a balance of probabilities to minimise or prevent an incident of shooting on the compound.

“Having had the report before the judge was entitled to conclude that there was a failure to act or that the NWRHA had acted inadequately to avoid the risk to Ms Badal.”

In their ruling, the judges also said, “A judge being knowledgeable about the location of one of the country’s main hospitals, which is located in the capital city, is not extraordinary and within the realm of acceptable judicial notice,” as they found it was acceptable for Harris to take judicial notice of the hospital’s location near “at-risk” neighbourhoods.

The report from the NWRHA’s security head, Solomon Sweeny, claimed the NWRHA was in the process of hiring armed security guards and increasing its security protocols, as it had noticed an increase in patients wounded in violent gang confrontations at the time.

At the appeal, Badal’s lawyer Kern Saney defended Harris’s judgment. He said the Sweeny report clearly showed the NWRHA recognised the risk and was actively seeking to address it by retaining armed security personnel and considering the use of metal detectors at entrances.

Also appearing for the NWRHA were attorneys Kirk Bengochea and Charles Law. Badal was also represented by Aaron Mahabir and Sheetal Seepaul of Veritas Chambers.