Doreen Hodge Claimant v Cable & Wireless (West Indies) Ltd George Kentish Defendants [ECSC]
| Jurisdiction | Anguilla |
| Judge | GEORGE-CREQUE, J. |
| Judgment Date | 06 February 2006 |
| Judgment citation (vLex) | [2006] ECSC J0206-1 |
| Date | 06 February 2006 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | CLAIM NO. AXAHCV/1998/0108 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
AD 2006
CLAIM NO. AXAHCV/1998/0108
This action is brought by the Claimant against the Defendants for damages for the tort of defamation in respect of a memorandum dated 28th February, 1995, written by the 2nd Defendant and placed on a notice board at the 1st Defendant's( "the Company") premises at The Valley, Anguilla. The Defendants contend that the statements contained in the memorandum are not defamatory and that in any event same was published on an occasion of qualified privilege. The Claimant also claims damages for the tort of intimidation arising, it is asserted, from threats and coercion by the Defendants resulting in the cessation of dealing with or using the Claimant's medical services.
The following facts which set out the background to this matter are not in dispute:
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(a) The Claimant was at the material time a registered medical practitioner practicing at The Quarter, Anguilla, general medicine, obstetrics and gynecology.
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(b) The Company is an international telecommunications company with a branch office located at The Valley Anguilla and employs a number of persons. Up to 1995 it was the largest single employer in Anguilla with between 75–80 employees. The 2nd Defendant at the material time was the personnel Manager of 1st Defendant.
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(c) At the material time the Company operated a medical scheme called the West Indies Medical Scheme ("the Scheme") in which most, if not all, its employees participated. The scheme operated on mutual contributions of the Company, as employer, with the employee contributing 1% of his/ her salary.
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(d) Employees were free to choose any registered medical practitioner practicing in Anguilla for rendering medical services. The Company would issue refunds for medical expenses incurred by an employee participant normally upon production of receipts by the employee. The Company would also act upon medical certificates issued by such medical practitioner for the purposes of sick or other leave.
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(e) The 'conditions of service' of staff of the Company1 provided inter alia for the Company to pay the balance of 40% of an employee's pay up to a six-month period of illness with Social Security meeting the first 60% thereof in respect of an employee who qualified for social security benefits.
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(f) The Claimant rendered medical services to various employees of the Company from time to time and these services included the issuance from time to time of medical certificates for the purposes of sick leave.
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(g) One such employee to whom the Claimant rendered medical services was Melissa Hodge ("MH") who was also a participant in the Scheme operated by the Company. On each of 10th December, 1994, and 10th January, 1995, the Claimant issued medical certificates ("The Medical Certificates") in respect of MH which were submitted to the Company. The medical certificate issued on 10th December, 1994, was in the following terms:
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"I hereby certify that on 10th December 1994 I examined (my emphasis) Melissa Hodge of the Cable & Wireless Department and that in my opinion she is by reason of illness incapable of discharging the duties of his/her office and in my opinion will be incapacitated until 10th January, 1995 inclusive." The medical certificate issued on 10th January, 1995 was in similar terms save that the examination was said to be on 10th January, 1995 and the opinion expressed was that MH would be incapacitated until 23rd January, 1995.
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(h)MH, in fact, from in and around end of November, 1994, to early February, 1995 was not on the island of Anguilla, having traveled to the United States, which fact she confirmed to the 2nd Defendant on her return to Anguilla in February 1995.
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(i) In light of this, 2nd Defendant, as Personnel Manager of the Company, wrote to the Claimant on 28th February, 1995 ("The Letter") seeking clarification in respect of the Medical Certificates which stated that she had ' examined ' MH on the dates mentioned therein and had found her incapable of performing her duties.
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(j) On the same date as The Letter, 2nd Defendant issued an Internal Group Communication memorandum ("The Memo") to "ALL STAFF". The Memo which Claimant says is defamatory of her forms the gravamen of this action and states as follows:
"Ref: AXA/MAP/GLK/PM13
To: ALL STAFF
From: Manager Admin/ Personnel
Date: February, 28, 1995
Subject: Medical Services — Dr. Doreen Hodge, The Quarter
CC: GENERAL MANAGER (ag)
The company is presently investigating an issue regarding the medical services provided by Dr. Doreen Hodge of the Quarter and until this is satisfactorily resolved, no medical receipts or certificates will be accepted from her effective, Tuesday, 28th February, 1995.
Sgd: George Kentish Manager Admin/ Personnel."
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(k) The Memo was placed on a notice board on a wall forming part of the passage way along the inner offices of the premises of the Company outside the door of the office occupied by the 2nd Defendant. The Claimant pointed out on a floor plan of the premises of the Company ( Exhibit 3) where she saw The Memo.
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(l) The Claimant on leaving the office of the 2nd Defendant (also shown on Exhibit 3) after visiting with him in connection with The Letter, saw on the notice board (which displayed various notices and announcements to staff of the Company), The Memo. She read it and took it. She said she felt badly and The Memo and The Letter annoyed her. She also said she believed that The Memo was read by many people and came to the knowledge and attention of numerous persons in Anguilla.
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(m) The Claimant says that by reason of the publication of The Memo she has been injured in her profession and has been brought into public scandal, odium and contempt and has suffered loss and damage. She asserts that as a result, her business dropped off by approximately 70% and claims in excess of US 1million dollars in damages. The Defendants ceased accepting receipts or medical certificates issued by the Claimant as from the date of The Memo.
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(n) The Claimant requested from the Defendants an apology and compensation. They failed or refused to do so.
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(o) The Claimant launched this action 28th October, 1998.
The issues for determination by the court are:
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(a) Whether the words complained of in The Memo are or bear a defamatory meaning;
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(b) If so, whether the said words were published on an occasion of qualified privilege;
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(c) If so, whether the defendants were actuated my malice;
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(d) Whether the Defendants coerced or threatened their employees not to use the services of the Claimant;
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(e) If so, whether the Claimant suffered damage as a result thereof;
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(f) If the Claims have been established the measure of damages to which the Claimant is entitled.
The Claimant and three other witnesses namely, Shirley Maynard, Claris Carty andMH, all former employees of the Company, made witness statements and gave evidence on behalf of the Claimant. Marva Thompson, a chartered accountant, also gave evidence on behalf of the Claimant specifically relating to the issue of the quantum of damages as claimed by the Claimant. The issue of quantum and the evidence in relation thereto will be addressed, if necessary, later in this judgment.
The Claimant after setting out her medical qualifications as a medical doctor said that she provided medical services to a large number of the Company's employees for a fee.MH, an employee of the Company, was a patient of hers and around November was about 6 months into her second pregnancy with complications attendant thereon for which she says no facilitates in Anguilla existed. She referred her to a hospital in the United States and gave her sick leave until the baby was born. When MH left for USA she had a current medical certificate covering sick leave until 10th December, 1994 and then, she said, based on her knowledge coupled with information received from MH's husband, she issued medical certificates to MH until the end of her leave. She says it was not necessary to see the patient in order to issue a medical certificate for the patient where the doctor referred the patient overseas.
WhenMH returned to Anguilla she examined her and on 28th February she received 2nd Defendant's letter seeking clarification on the sick leave, maternity leave, and The Medical Certificates. She met with the 2nd Defendant in his offices at the premises of the Company on or about 2nd March1995, but says she was not given a chance to explain or clarify the issues raised by the 2nd Defendant and was told by the 2nd Defendant that the Company will no longer accept medical certificates or receipts from her and the Company's employees had or were being so informed. She said 2nd Defendant threatened that the matter was being taken further and that the Company's employees would not be permitted to return to her for medical treatment. On leaving 2nd Defendant's office she saw The Memo on the notice board inside the premises of the Company. She said she felt badly and that the 2nd Defendant was rude to her during their meeting on March 2nd.
The Claimant went on to say that as a result of The Memo, people in the Anguilla community stopped coming to her for treatment, would make snide remarks, questioning her qualifications and would talk about her in a laughing manner in her presence. She says that since the publication of The Memo, her business dropped some 70% and that about 40% of the Company's employees stopped using her services. No witnesses were produced verifying remarks or statements made as members of the public save for those persons who, at the relevant time, were members of staff of the...
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