- A National Roads Authority employee is driving a bulldozer. He falls asleep at the wheel, and the construction vehicle rams through the wall of a nearby house, injuring several people. They are unable to sue the authority or the employee, or make a successful insurance claim, because of an immunity provision in the law
- A Health Services Authority nurse commits a critical error during a normally routine procedure at the Cayman Islands Hospital, resulting in a serious infection that causes the patient to die. The family is unable to sue the authority or the nurse because of an immunity provision in the law
- An Airports Authority supervisor is caught stealing from a passenger’s suitcase, but instead blames it on a nearby employee, who is terminated on the spot without due process. The employee is unable to claim compensation for unfair dismissal because of an immunity provision in the law.
Those are just a few hypothetical examples of potential injustices that could occur under immunity clauses that have found their way into several laws governing government entities in the Cayman Islands, protecting authorities, staff and directors from being held liable for their actions, so long as they weren’t acting in “bad faith.”
A ruling from Justice Richard Williams has made “Section 12” of the Health Services Authority Law the most notorious of the immunity provisions, but the reality is that Section 12–like clauses exist in multiple laws, including legislation governing the National Roads Authority, Airports Authority, Planning Department, Cayman Islands Monetary Authority and Maritime Authority.
Collectively the clauses give great power to authorities and public servants — by putting the public at great risk.
Simply put, what the immunity clauses do is create a climate of “victors versus victims,” where the victors are the public agencies, and the victims are the ordinary members of Cayman society.
Since Justice Williams’s ruling on Section 12, various officials have attempted to claim that the resulting blanket immunity was an unintended consequence of trying to craft legislation that would protect appointed board members from being held personally liable for damage caused by the authority or its employees.
The legislative paper trail, we believe, points to the opposite conclusion: that the blanket immunity was absolutely intentional, and was meant to shield the public agencies from accountability for errors or accidents.
Consider the history of Section 12 in the HSA Law. In the 2003 version of the law, Section 12 protected the authority, staff and directors from liability unless there was “dishonesty, fraud or wilful neglect.”
Lawmakers revisited that particular section in 2004, adding a new section (Section 12A) granting indemnification to directors, and injecting the “bad faith” phrase into Section 12. When the HSA Law was overhauled in 2010, the Section 12 and 12A were combined, retaining the “bad faith” phrase.
Additionally, the HSA has fended off several potential lawsuits by invoking its immunity under Section 12. We don’t know if other authorities have blocked legal actions by bringing up their own immunity clauses.
The point is, Section 12 and similar clauses have been subjected to individual scrutiny by lawmakers and attorneys time and time again over the years. It was not — and never was — a “drafting oversight,” as is now being claimed.
When Justice Williams made his ruling, he wasn’t “legislating from the bench.” He was simply describing the legal reality in Cayman.
Justice Williams has said that the issue of whether Section 12 runs afoul of our constitutional Bill of Rights “is one of great public importance” and also said that lawmakers may want to reconsider their policy on the blanket immunity provision.
In our opinion, the immunity clauses constitute no less than a clear and present danger to the public. Each day those provisions remain on the books is another day we are all at risk. Premier Alden McLaughlin should convene an emergency session of the Legislative Assembly with the sole objective of vaporizing Section 12 and its siblings from the legal framework of this country. Immediately.
This needn’t be a complicated or lengthy task. If the Premier needs to borrow an editor, we have several at the Compass who are experienced in getting rid of “bad copy” on deadline.
Just hand us a red pen, and we’ll draw the “X.”