The Cayman Islands Court of Appeal has confirmed that it is an offence of strict liability for an employer not to have a standard health insurance contract in place for employees, employees’ unemployed spouses and children.
The appeal judges upheld the Grand Court convictions of Godfrey Bowen and Air Tech Corporation Ltd., both of whom were found guilty before a jury in October 2007 of failure to have health insurance in effect.
Air Tech was further found guilty of deducting from an employee’s pay money for health insurance which was more than the employer was entitled to deduct, since there was no health insurance in place.
Attorney Clyde Allen argued that the offences were not strict liability and the trial judge had instructed the jury wrongly.
The appeal was filed out of time. However, court president Sir John Chadwick said he, Justice Ian Forte and Justice Abdullah Conteh would hear the matter because it involved a question of general importance in the Cayman Islands.
The Court of Appeal issued a written judgment on 8 April, quoting extensively from the trial judge. It said the trial judge was plainly correct in taking the view that the imposition of strict liability would promote the aim of the legislation – to ensure that those employed in Cayman are protected by health insurance.
Strict liability means that the defendant’s state of mind is irrelevant. As Justice Dale Sanderson explained to jurors, it was not necessary for the prosecution to prove that Mr. Bowen and Air Tech intended to not effect and continue a health insurance contract for the employee.
All that was necessary was to show that events occurred. It was not necessary to prove that the discontinuation of the policy and the continuation of deductions were intentional or came about by negligence or recklessness or lack of knowledge. The trial judge also said it was not a defence to say that the employer did not have the funds to pay the insurance premium.
Senior Crown Counsel Trevor Ward, who conducted the case for the prosecution in Grand Court replied to the ground of appeal argued by Mr. Allen. He welcomed the judgment and said it had cleared up several issues, including the obligation of the employee to keep his/ her employer informed about any change in the number of dependants to be covered.
In Grand Court Mr. Bowen and Air Tech were fined $5,000 each for failure to have health insurance in place. Air Tech was fined $2,500 for the unlawful deduction from an employee’s pay. The Court of Appeal did not interfere with these sentences.