The Williams family’s new life in the Cayman Islands started off with a bang — and a crash, and a thud … But no “I’m sorry” from port personnel who dropped their shipping container, causing tens of thousands of dollars of damage to its contents, including their car, scooters and other property.
Instead of an apology, the Cayman Islands Port Authority has given the Williamses the runaround, blaming the accident on “faulty” latches on top of the shipping container, attempting to shift responsibility to the private shipping company and then, as a last resort, informing the couple that the Port Authority is only liable to pay for damage to property if there is “wilful neglect or default.” (In fact, the regulations to the Port Authority Law stipulate that the port also cannot be held responsible for losses, delays, thefts and even injuries or death, unless, again, “wilful neglect or default” can be demonstrated.)
If this sounds familiar, it should: It’s the “Section 12 problem,” all over again.
We are, of course, referring to the blanket immunity clause that grabbed headlines earlier this year after a judge ruled that “Section 12” of the Health Services Authority Law effectively prevented any lawsuits from proceeding against the public hospital’s doctors, nurses or other staff for medical negligence. Similar immunity provisions appear in several other laws governing Cayman agencies, including the National Roads Authority, Planning Department, Airports Authority, Cayman Islands Monetary Authority, Maritime Authority and, apparently, the Port Authority as well.
Following a hue and cry from the populace, lawmakers at first denied vigorously that “Section 12” was actively intended to shield HSA staff from accountability (even though the HSA had deliberately invoked the immunity clause on several occasions to fend off potential lawsuits). Then, in late April, lawmakers convened and unanimously approved the repeal of Section 12 from the HSA Law, but only in the HSA Law. Nearly six months later, the Legislative Assembly is again in session, but there is no indication that lawmakers plan to alter any of the other immunity clauses in any of the other laws.
(In case you were wondering … we were, so we looked it up … the Traffic Law does indeed contain an immunity clause shielding the Department of Vehicle and Drivers’ Licensing, and its vehicle inspectors, from liability for causing damage to property “unless it is shown that the act or omission was in bad faith.” That may explain, in part, otherwise-inexplicable delays in the traffic case concerning the DVDL “racing inspector” who totaled a car he was test driving in broad daylight on July 11. Police investigated the high-profile incident and submitted a case file to public prosecutors in mid-September … That would be more than a month ago … and since then, we have heard nothing.)
Lawmakers’ limited action on the HSA Law this spring, and blatant inaction on other immunity clauses, is proof that those “Section 12s” are there for a specific and obvious purpose, that is, to protect the government when it harms people or property.
What we editorialized in March continues to hold true: “The blanket immunity was absolutely intentional, and was meant to shield the public agencies from accountability for errors or accidents.”