Legal team ‘stunningly unreasonable’

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  • Chief Justice Ian Kawaley

    Chief Justice Ian Kawaley

Chief Justice Ian Kawaley has launched a scathing condemnation of the way the Ministry of Education conducted its case against a CedarBridge teacher who claimed she had been unfairly treated.

Mr Justice Kawaley said “the conduct of the defendant’s case at trial crossed far over the reasonableness line” as he awarded Karen Clemons 90 per cent of the costs she incurred taking the case to court.

He added that it was “stunningly unreasonable” for the ministry’s legal team, which was represented by Norman MacDonald, to question Ms Clemons on her sexual orientation “when this had no conceivable relevance to the facts in issue”.

Previously, in the first case of its kind in the Bermuda Supreme Court, Mr Justice Kawaley had ruled that the ministry had breached its duty of care to Ms Clemons that resulted in her suffering high blood pressure.

In the latest ruling relating to costs, the Chief Justice said: “I find that the plaintiff should be awarded her costs from the commencement of the trial until the present ruling on an indemnity basis to reflect the strong disapproval of the court.

“The plaintiff is awarded 90 per cent of her costs of the action to date, which encompasses the trial on liability which she has won overall to be taxed, if not agreed, and paid forthwith.

“The 10 per cent deduction is to take into account the fact that the defendant succeeded in defeating the largely overlapping intentional infliction of harm claim and had success in rebuffing a variety of allegations advanced by the plaintiff including her psychological injury claim.

“The costs from the commencement of the trial until the date of the present ruling are awarded to the plaintiff on an indemnity basis because of the improper way in which the defendant conducted significant aspects of his unsuccessful defence.”

Ms Clemons welcomed the ruling on costs.

She told The Royal Gazette: “I understand that it is rare for such a determination at this stage of the proceedings.

“I was worried that I would be unable to maintain the proper demeanour during the course of the trial, given the circumstances.

“I didn’t dream that I would be subjected to random attacks on my character and personality that caused me to feel as though I was being victimised all over again.

“You can call me anything you wish, you can even call me late for Christmas dinner, but I take issue with being called a ‘bad teacher’.

“When all else fails, it should not be an acceptable practice for a party to ‘blame the victim’ under any circumstances.”

Mr Justice Kawaley also stated in his ruling that it was unreasonable for the ministry to advance a case that Ms Clemons was a “malingerer and had invented her psychological problems” particularly because “the defendant himself had served and filed an expert report which agreed that the plaintiff probably had psychological problems and merely disagreed on the label to attach to the relevant injury”.

He added: “It was unreasonable to advance a positive case that the plaintiff was an incompetent teacher when this did not form part of the defendant’s pleaded case and the defendant’s own evidence made it clear that the plaintiff’s main clashes with the CedarBridge administration related to alleged non-compliance with administrative policies rather than pedagogical shortcomings.”

The Chief Justice also chastised the ministry’s legal team for failing to recognise that Ms Clemons was at least a potentially vulnerable witness and cross-examine her accordingly.

Ms Clemons looks set to be awarded damages after winning her ground-breaking legal battle against the ministry for the way she was treated while working at CedarBridge, although the figure has not been set. After the initial trial Mr Justice Kawaley dismissed Ms Clemons claim for damages for “intentional infliction of harm” by the ministry as well as her submission that she developed post-traumatic stress disorder from her treatment.

But her claim for negligence succeeded because she proved she suffered “an exacerbation of an existing hypertension condition” because the ministry breached its duty to exercise reasonable care “to provide a safe system of work”.

Ms Clemons embarked on her personal injury action in 2009, claiming the ministry was responsible for a hostile working environment while she taught at CedarBridge Academy between 2000 and 2006.

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