Woman loses negligence case against swimming school

Derek Achong

Se­nior Re­porter

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A woman has lost her neg­li­gence case against a Diego Mar­tin swim­ming school and its own­er over med­ical is­sues her three-year-old daugh­ter ex­pe­ri­enced af­ter par­tic­i­pat­ing in a sur­vival swim­ming class.

De­liv­er­ing a judg­ment on Thurs­day, High Court Judge Robin Mo­hammed par­tial­ly dis­missed the law­suit from the moth­er, who can­not be named to pro­tect her daugh­ter’s iden­ti­ty.

Jus­tice Mo­hammed found he moth­er’s ev­i­dence over what tran­spired was un­re­li­able and she did not prove that the Aun­tie Ash­ley’s Swim­ming School and its own­er Ash­ley Alon­zo breached their du­ty of care to her daugh­ter.

De­spite the find­ing, Jus­tice Mo­hammed did find that Alon­zo and her school com­mit­ted a breach of con­fi­dence by post­ing the child’s med­ical records in re­la­tion to the in­ci­dent on its so­cial me­dia page. He or­dered them to pay $30,000 in com­pen­sa­tion and is­sued an in­junc­tion re­strain­ing them from dis­sem­i­nat­ing or pub­lish­ing the con­fi­den­tial med­ical in­for­ma­tion.

The case cen­tred around an al­leged in­ci­dent which oc­curred on Jan­u­ary 9, 2020, when the child at­tend­ed her sec­ond swim­ming class.

The moth­er claimed that short­ly af­ter pick­ing up her child from the class, she (the child) ap­peared to be drowsy and fell asleep. She claimed the child coughed re­peat­ed­ly and ex­pe­ri­enced dif­fi­cul­ty breath­ing.

The child was tak­en to the Pae­di­atric Emer­gency De­part­ment at the Er­ic Williams Med­ical Sci­ences Com­plex in Mt Hope, where she re­ceived treat­ment. She was as­sessed as suf­fer­ing from near-drown­ing or chem­i­cal pneu­moni­tis (dif­fi­cul­ty breath­ing or in­flam­ma­tion of the lungs caused by in­hal­ing chem­i­cal fumes or chok­ing on chem­i­cal sub­stances).

While the child re­cov­ered, her moth­er claimed she ex­pe­ri­enced long-term trau­ma from the in­ci­dent.

Alon­zo and the school de­nied any wrong­do­ing through their lawyers Lar­ry Williams and Sade Lee-Duprey. They claimed they nev­er en­tered in­to an agree­ment with the moth­er for the class­es and the child at­tend­ed through arrange­ments made by her school. They de­nied there was any ad­verse in­ci­dent dur­ing the class that amount­ed to a near-drown­ing and that their in­struc­tors were trained and cer­ti­fied and prop­er­ly su­per­vised the chil­dren in the class.

They ad­mit­ted that they post­ed the child’s med­ical re­port but claimed the ac­tion was tak­en in re­sponse to a ma­li­cious and defam­a­to­ry post from the moth­er.

In de­ter­min­ing the case, Jus­tice Mo­hammed took is­sue with the fact that while the med­ical re­ports in­di­cat­ed the child was giv­en cough syrup hours be­fore the class, the moth­er claimed the med­ica­tion was ad­min­is­tered the night be­fore.

“I have not viewed this dis­crep­an­cy in iso­la­tion, but in light of fur­ther ma­te­r­i­al in­con­sis­ten­cies,” he said.

He not­ed that the moth­er al­so ad­mit­ted that she did not dis­close that her daugh­ter had a pre-ex­ist­ing nasal con­ges­tion is­sue.

Jus­tice Mo­hammed al­so up­held the ev­i­dence from an in­struc­tor, who claimed the child was not sub­merged in the pool dur­ing the class, as she was cry­ing and re­peat­ed­ly cov­er­ing her face.

“I am of the opin­ion that it demon­strates that the in­struc­tor iden­ti­fied a haz­ard and proac­tive­ly avoid­ed it,” he said.

“The mere fact that the child was in an en­vi­ron­ment where wa­ter could be trapped does not prove that the de­fen­dants neg­li­gent­ly caused any wa­ter to en­ter her res­pi­ra­to­ry sys­tem,” he added.

Jus­tice Mo­hammed al­so dis­missed the moth­er’s breach of con­tract case on the ba­sis that the swim­ming pro­gramme was arranged by the child’s school.

Deal­ing with the breach of con­fi­dence, Jus­tice Mo­hammed not­ed that Alon­zo ad­mit­ted she was “ab­solute­ly” wrong to have post­ed the med­ical records when in­ter­ro­gat­ed by the moth­er’s lawyers Matthew Gayle and Ja­son Jones.

“The de­vi­a­tion from the de­fen­dant’s plead­ed case ef­fec­tive­ly de­feats any ten­able de­fence to the breach of con­fi­dence con­tention,” he said.

Jus­tice Mo­hammed or­dered Alon­zo and her school to pay in­ter­est on the dam­ages and 45 per cent of the moth­er’s le­gal costs for pur­su­ing the case.