Oct 16, 2013
The adopted daughter of alleged elder abuse victim “Auntie Em” has won a six-year legal battle with her mother’s former carer.
Chief Justice Ian Kawaley ruled in the Supreme Court that Rosamund Hayward does not have to pay Yvonne Dawson $25,000 in unpaid fees, as she was ordered to do by a magistrate in 2010.
But Mr Justice Kawaley said Ms Hayward’s “apparent unwillingness to live up to her moral obligations” in relation to contributing to the cost of care for her mother was “on the face of it, not just unreasonable, but bordering on the outrageous, considering that she is seemingly entitled to inherit her mother’s home”.
He said it was difficult to see why Ms Hayward shouldn’t pay for her own costs in the long-running civil case, adding: “It is to be hoped that [Ms Dawson’s] legal advisers will have the ingenuity to find some means of achieving some measure of financial justice for her.”
The harrowing case of “Auntie Em” — whose real name was Wilhelmina Liburd — was revealed by The Royal Gazette in September 2007, when her nephew Stephen Woodley and Ms Dawson told of the terrible conditions she was found living in at the family home in Upland Street, Devonshire.
Ms Dawson described seeing cockroaches crawling across the senior’s skin and food, while environmental health officers declared the property unfit for human habitation due to clutter, dirt, roach and rodent infestation and droppings, unsanitary water, roof fungus and bed bugs.
The near-blind great-grandmother, who lived with Ms Hayward and other family members, moved temporarily into Ms Dawson’s home to be looked after.
She ultimately ended up at King Edward VII Memorial Hospital, where part of one leg was amputated due to gangrene.
Mrs Liburd died in 2011, aged 98, at the hospital’s Continuing Care Unit and Ms Hayward has never faced any criminal charges in connection with the alleged mistreatment of her mother.
Ms Dawson launched legal proceedings in 2007 against Ms Hayward, the only child of Mrs Liburd and her late husband, to recover money she claimed she was owed for caring for the senior at weekends.
Mr Woodley, she said, hired her and paid for her weekday fees, with Ms Hayward agreeing to meet the costs of weekend care.
Magistrate Tyrone Chin provisionally ruled in May 2008 that there was a contract between the parties and, in December 2010, reaffirmed that decision, ordering Ms Hayward to pay $25,000, plus $70 costs.
Ms Hayward immediately appealed the decision but it took until last month for a judgement in the case, when Mr Justice Kawaley agreed with her lawyer Ray DeSilva’s argument that Mr Chin’s decision was “plainly flawed” because it had not been shown that a legally enforceable contract existed between the two women.
The magistrate referred to one payment of $280 for weekend services in October 2006 as evidence of Ms Hayward’s agreement to a contract.
That wasn’t sufficient, according to Mr Justice Kawaley, who wrote: “The learned magistrate did not support his finding that a contract existed by reference to any other specific aspect of the evidence adduced at trial in support of [Ms Dawson’s] case.
“Nor did he make any express findings on the issues which formed the basis of [Ms Hayward’s] submission of no case.”
He said the 2010 judgement simply reaffirmed the earlier ruling, adding: “It follows that if that ruling is not supportable, neither is his final judgement. The appeal is allowed on the ground that [Ms Dawson] failed to prove her case.”
The Chief Justice said it seemed obvious that Ms Hayward was “at a minimum, morally obliged to contribute to the costs of her mother’s care”.
The magistrate’s decision, he added, appeared both pragmatic and consistent with ordinary notions of justice, in that it would have meant Ms Dawson was paid for her “valuable services” and Ms Hayward, who was willing to receive the benefit of her mother’s property, would have to contribute to Mrs Liburd’s care.
But the judge agreed with Mr DeSilva that it did not meet with strict legal principles and should be set aside.
Mr Justice Kawaley said the case took too long to deal with and changes were needed to the law to ensure “more active case management” of civil matters by the Magistrates’ Court, with the help of counsel.
Neither Ms Hayward nor Ms Dawson could be reached for comment yesterday. Mr DeSilva told this newspaper he could not comment on the judgement until he had spoken to his client, as did Richard Horseman, lawyer for Ms Dawson.
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