It shouldn’t require a judge to point out that high blood pressure, or hypertension, is an occupational health hazard of being a public school teacher, whether in Bermuda’s public school system or elsewhere, and that the Ministry of Education owes a duty of care to its teachers to provide a safe system of work.
But in a 60 page judgment dated 14 November 2016, in the case of Karen Rae Clemons v Minister of Education  SC Bda 92 Civ, Chief Justice Kawaley of the Supreme Court of Bermuda has had to point this basic point out. In summary, the Judge has held the Minister of Education liable in the tort of negligence for failing to provide a safe system of work to the Plaintiff, as a public school teacher, causing an exacerbation of a pre-existing high blood pressure (hypertension) condition. The Judge rejected a separate complaint by the Plaintiff that the Ministry had intentionally inflicted harm upon her.
The damages payable to the Plaintiff remain to be assessed by the Court (if they cannot be resolved by agreement), and it also remains to be seen whether either party will seek to appeal the judgment to the Court of Appeal.
Above and beyond the facts of the case (which are extremely unfortunate for all concerned), the judgment demonstrates some of the challenges faced by Litigants in Person in Bermuda, when litigating against the Government, and the consequential challenges faced by the Court, in terms of procedural case management, the taking of evidence at trial, the proper allocation of judicial resources, and the application of the ‘overriding objective’. The judgment also reflects poorly on the Attorney-General’s Chambers’ conduct of the litigation and the trial in particular.
The following points are noteworthy:
- It took 7 years for the case to get to judgment on liability, from the commencement of proceedings. This is an unreasonable length of time, given the fact that the underlying facts took place over 10 years ago, between 2001 and 2006.
- The parties’ pleadings were obviously far too long (a 200 page Statement of Claim, and a 40 page Defence).
- The trial appears to have been heard over 13 days, split over 4 separate hearings, between May and September 2016. This is far from satisfactory.
- The Attorney-General’s Chambers do not appear to have conducted the defence in the fair manner to be expected of Crown Counsel (especially when dealing with a litigant in person), or in accordance with the overriding objective.
- In particular, the Judge described the Attorney-General’s Chambers’ conduct of the case at trial as “surprisingly sharp-edged“, and he appears to have threatened the Defendant with adverse costs orders if Crown Counsel failed to “assist the Court to achieve the overriding objective“.
- Perhaps most regrettable for the reputation of the Attorney-General’s Chambers (and, in particular, the Crown Counsel with conduct of the trial) are the Chief Justice’s specific comments at paragraph 101 of his Judgment: “The capacity of the Defendant to take retaliatory action when under attack was most chillingly demonstrated in the course of the trial when Mr MacDonald (a) purporting to have taken instructions from disgruntled evicted former tenants of the Plaintiff, sought to embarrass the Plaintiff by cross-examining her about wholly irrelevant aspects of her private life and (b) suggested that all of the Plaintiff’s problems at [Cedarbridge Academy] were attributable to her being unable to teach. The reiteration of the second line of argument in closing submissions prompted the Court to query whether it was necessary for the defence of a claim alleging institutional bullying to be conducted in such a bullying manner”.
Readers with an interest in forensic advocacy might take note of Peter Brauti’s article, ‘Improper Cross-Examination’ (1998) 40 Criminal Law Quarterly 69 (which has been cited with approval by the Supreme Court of Canada), and the Ontario Court of Appeal’s judgment in R v Bouhsass (2002) 169 CCC (3rd) 444, as just two examples of authorities in support of the obvious proposition that “it is only the unskilled and floundering advocate who is left to resort to the improper tactics of a bully …“.