Paralysed man loses lengthy damages battle
A man who was paralysed more than 20 years ago after an accident at Bermuda’s only mental hospital has lost a lengthy battle to sue for compensation.
Thomas Hofer was just 30 and pursuing his dream job as a chef on the Island when he broke his neck while a patient at St Brendan’s Hospital and became a wheelchair-bound quadriplegic. He launched a lawsuit for damages against Bermuda Hospitals Board in 1997 but has now lost any chance of winning compensation after the claim was struck out in the Supreme Court.
Now aged 52 and still unable to move from the neck down, he spoke to The Royal Gazette yesterday from the small fourth-floor apartment in Munich he shares with his stepson, where he receives around-the-clock care.
“I thought to myself that compensation would be appropriate,” he said. “[But] I am not disappointed — it is so long ago.
“I don’t really harbour any resentment. I can’t change it any more anyway.” Mr Hofer, whose apartment measures 100 square metres, said he rarely went out as he was reliant on his electric wheelchair, and that he spent his days reading newspapers and watching television.
His dream, he added, was to buy a little house with a garden so he “can get out a bit”.
According to German media reports, Mr Hofer was a sporty young man and a talented musician and chef, whose lust for adventure drove him to leave his home town of Lenggries to come to Bermuda.
He was working at the Once Upon A Table restaurant on Serpentine Road, Pembroke, in February 1994 when he was arrested after entering the Bank of Butterfield on Front Street, claiming to be a killer.
“I can remember,” he told this newspaper. “I had a psychosis and was screaming on the streets.”
Police took him to St Brendan’s Hospital, now the Mid-Atlantic Wellness Institute, where he was admitted and treated for a paranoid psychiatric disorder.
According to a defence to the lawsuit filed by BHB in 1999, Mr Hofer was in the care of a registered psychiatric male nurse when he was injured.
The nurse said he watched the patient shouting, screaming and throwing himself about his bedroom before placing him in a more secure room and tranquillising him.
In the seclusion room, according to BHB, Mr Hofer “suddenly and without warning threw himself against a screened window” before standing up and walking towards a mattress on the floor and then falling on to the mattress. The nurse said he checked for injuries and found none.
Subsequently, he was treated at King Edward VII Memorial Hospital for a later accident at St Brendan’s in which he allegedly fell off a bed and hit his chin on the floor while being assisted by a male nurse. His broken neck was discovered on an X-ray during that visit.
He remembers waking up in the hospital and, later, when he found out he would not walk again, feeling “actually a bit angry”.
“But it cannot be changed,” he said. “I have come to terms with it. I’m with God and I’m with Jesus.”
Mr Hofer was flown home to his native Bavaria in April 1994 and has been in the care of the German state ever since.
His lawsuit claimed BHB was negligent in failing to properly supervise him at St Brendan’s. It included costs for loss of earnings and ongoing care and was expected to exceed $5 million.
The case has lingered in the court system for almost 20 years, with Mr Hofer having to change lawyers and being denied further financial help by Bermuda’s legal aid committee this year. In a judgment issued in August, Chief Justice Ian Kawaley said: “In all the circumstances of the present case it seems to me that, to put it bluntly, enough is enough.”
He concluded the matter had taken too long to come to trial, hampered by a lack of funding, which amounted to an abuse of the process of the court.
“I accept entirely that the plaintiff as a German national has faced genuine difficulties in funding his claim,” said the judge.
“But those difficulties, it seems to me ... cannot justify the court in privileging the plaintiff’s right of access to the court over the defendant’s corresponding fair hearing rights.”
Mr Hofer’s lawyer, Larry Mussenden, said justice had not been served and he was considering whether Mr Hofer had a claim against the legal aid committee for breaching his human rights.
A BHB spokeswoman said: “BHB is pleased that this long-running case is now over.”
The board’s lawyer, Allan Doughty, added: “This is a tragic case but at the same time liability was never admitted.”
A lawyer has described how he suffered one of the worst days of his legal career when Thomas Hofer’s lawsuit against hospital chiefs was thrown out of court.
Larry Mussenden, who most recently represented the German quadriplegic in his long-running bid to claim damages for negligence from Bermuda Hospitals Board, told The Royal Gazette that justice had not been served in the case.
“It was certainly one of the most disappointing days of my legal career,” he said of August 5, when Chief Justice Ian Kawaley struck out the personal injury action because it had taken too long to prosecute.
“Where is the sense of justice? Mr Hofer went into St Brendan’s physically OK. He went out with a broken neck.”
Mr Hofer, a 52-year-old former chef, launched his civil claim in 1997, three years after the accident at St Brendan’s mental hospital which left him paralysed from the neck down.
He claimed BHB allowed him to sustain a serious injury by failing to restrain him.
His original lawyer was Michael Scott but, according to Mr Justice Kawaley’s ruling, Mr Scott could no longer represent him when he became a government minister after the 2007 General Election.
Throughout proceedings, Bermuda’s legal aid committee granted Mr Hofer limited financial aid and his counsel claimed the lack of funds hampered their ability to gather the expert evidence needed to proceed to trial.
In 2011, the Legal Aid Act was amended to limit access to financial aid in civil matters for non-Bermudians. Mr Hofer’s legal aid certificate was discharged in 2013, on the basis he was a ward of the German state.
Mr Mussenden, who is instructed by a lawyer for the German government who acts as Mr Hofer’s guardian, criticised that decision, arguing: “A person needs to have some kind of funding to have their just day in court.
“Had he stayed in Bermuda it would have cost us millions of dollars to care for him.
“Now it is over in respect of a dedicated action against the hospital. I have to consider whether or not Mr Hofer’s human rights have been breached by the legal aid committee.”
Mr Justice Kawaley said in his ruling that when the legal aid certificate was discharged: “The frustration that the plaintiff and his Bermuda attorneys must have felt can only be imagined, because it should not happen that a plaintiff is given support from the legal aid committee in respect of an action filed in 1997 and in 2013 the committee is still in the process of deciding whether or not to fully support the claim.”
Rosemary Tyrrell, the permanent secretary at the Ministry of Legal Affairs, said the certificate was discharged because Mr Hofer, as a ward of the German state, did not qualify for legal aid.
She said the certificate was reinstated briefly last year to allow Mr Mussenden to pursue a settlement on behalf of Mr Hofer, but when the committee was informed a settlement was not possible, it decided not to extend the legal aid.
