Quadriplegic is given extended time to sue Bermuda Hospitals Board
By Amanda Dale
Court of Appeal judges have extended the time in which a quadriplegic can sue the Bermuda Hospitals Board 15 years after he was paralysed.
Justices Edward Zacca, Sir Austin Ward and Sir Anthony Evans granted an adjournment yesterday to allow lawyers for Thomas Hofer to apply for legal aid for junior counsel.
It follows a Supreme Court judgement on June 26, 2008, which struck out the case due to excessive delay.
The Court also heard yesterday that Michael Scott, Minister of Energy, Telecommunications and E-Commerce, is no longer Mr. Hofer's legal representative.
Instead Tony Cottle is to represent the German ex-chef.
Mr. Hofer broke his neck while allegedly under the care of St. Brendan's Hospital, now the Mid Atlantic Wellness Institute.
On February 10, 1994, he was arrested after entering Butterfield Bank, on Front Street, claiming he was a killer. He was taken to St. Brendan's Hospital for psychiatric treatment but three days later was admitted to King Edward VII Memorial Hospital with a fractured neck.
Mr. Hofer was flown back to Bavaria, Germany, and proceeded to file a writ against BHB for negligence and damages for injuries. The claim includes costs for ongoing care and is expected to exceed $5 million.
Yesterday Allan Doughty, lawyer for BHB, said: "I have only heard today Mr. Scott is no longer acting for the appellant."
Mr. Justice Sir Austin said: "It is apparent on the face of the record that Mr. Scott, who is now a Minister, cannot appear before the Bermuda Hospitals Board."
Mr. Justice Sir Anthony added: "Nevertheless he did (appear previously) and that's one of the puzzles of this case. The case began with him representing."
Mr. Cottle told The Royal Gazette yesterday that Mr. Scott, a former Health Minister, had a conflict of interest in representing someone suing a Government body.
"He's a Minister in Government and Mr. Hofer is suing the Government, so he (Mr. Scott) can't act for the Government. It's a conflict of interest," said Mr. Cottle.
Asked when Mr. Scott withdrew from the case, he said: "I don't know, I've come into it late. I am sure he has done that on legal advice."
Court of Appeal justices were critical yesterday of the time it has taken to hear Mr. Hofer's case.
Commenting on delays and legal technicalities, Mr. Justice Sir Anthony said: "I doubt it reflects any great credit on the Bermuda system of justice.
"We've had an 18 month delay since the case was struck out and what we are concerned with now is whether there should be an appeal against that ruling.
"The simple question is, whether the applicant should have the opportunity to have a ruling on legal aid for counsel."
Mr. Doughty told the Court: "The answer is no, because there's nothing on the record to show proper steps have been made for legal aid funding.
"The matter has dragged on for too long and an adjournment should not be made at this stage, because it would amount to an abuse if this Court's process."
He added: "The matter is now 15 years old and there is no end in sight. I vigorously oppose this application.
"The Bermuda Hospitals Board wants to have absolute closure of this case. There's been an abuse of process, there's been continuous delay."
Mr. Cottle however, said Mr. Scott has previously attempted to gain legal aid to obtain assistant counsel.
"It would seem in the interests of justice that this must be resolved as soon as possible," he said.
Mr. Doughty then raised the matter of costs, telling the judges: "My security for costs ($5,000) was never paid."
This drew a rebuke from Mr. Justice Sir Austin, who said: "For the Bermuda Hospitals Board to be asking for security of costs for this appeal from a paraplegic in Germany..., it is just about the most naked procedural gamble I have ever heard."
He said it was "appalling" to think it would even be considered.
"The Court is not just bound by the rules of the Court, but its overriding consideration is fairness and justice," he said.
President Mr. Justice Zacca said: "The Court is prepared to grant the adjournment on condition the application is made forthwith for legal aid to be granted."
He said the case was likely to be concluded in March.
"Certainly the matter will be heard and there's not matter of any adjournment being granted in March," he said.
