REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2007-04482
BETWEEN
KEITH MALCHAN
CLAIMANT
AND
REPUBLIC BANK LIMITED
DEFENDANT
BEFORE THE HON. MADAME JUSTICE JOAN CHARLES
Appearances:
For the Claimant:
Mr. Larry Lalla
For the Defendant:
Mr. Kendall Alexander
Date of Delivery:
25th February, 2014
JUDGMENT
Page 1 of 32
BACKGROUND
[1]
The Claimant, at all material times, was an employee of the Defendant
Company. The Defendant is a registered limited liability company duly
incorporated under the COMPANIES ACT, CHAP. 31:01 engaged in the
business of commercial banking. The Claim is one for negligence
occasioned by the Defendant to the Claimant.
o CLAIM
[2]
The Claimant filed his Claim Form and Statement of Case on the 27th
November, 2007, wherein he stated that he was employed by the
Defendant as a Sales officer, stationed at the Defendant’s Tunapuna West
Branch.
[3]
On or about the 14th August, 2006, he returned from vacation and resumed
duties at the Tunapuna West Branch. Upon his arrival, he noticed that the
Sales Department was being renovated. The staff in the Sales Department
was placed on the ground floor to work in close proximity to the fumes
and other chemicals being used in the renovation process. Although the
pungent smells of fumes and other intoxicants were most prominent on
the first floor, the odours also permeated the entire building.
[4]
Thereafter, on or about the 15th August, 2006, the Claimant once again
reported for duty and was advised by his immediate supervisor that the
Sales Department would be functioning as normal despite the smell and
dust emanating from the ongoing renovations. The Claimant complied.
Page 2 of 32
However, around midday he began feeling unwell; his throat felt “scratchy
and grainy” and he had a headache.
[5]
Despite numerous reports of his ill health to his supervisor, the Claimant
was still made to work in the dust, fumes and pungent odours coming
from the renovation works. The Claimant worked at the Tunapuna West
Branch from the 15th August, 2006 until he was sent on medical sick leave
for twenty-one (21) days on the 8th September, 2006.
[6]
The Claimant, to date, has had to remain on sick leave as he is unable to
return to work. He has been diagnosed with Sjogren’s syndrome which he
believes was caused by the negligence of the Defendant, its servants
and/or agents. The Particulars of negligence are as follows:
i.
Failing to take appropriate measures in reducing and/or
minimizing the effect that the fumes, dust, and smell would have
had on the Claimant while undertaking its renovations;
ii.
Failing to ensure that the Claimant would not be injured during
the renovations being undertaken;
iii.
Exposing the Claimant on a daily basis, for a period of three (3)
weeks, to the pungent smells, dust, paint and flue fumes from the
renovations;
iv.
Opting to renovate whilst the Claimant was engaged in his
employment necessitating his presence in this building while it
was being renovated;
v.
Failing to provide the Claimant with a safe system of work;
vi.
Failing
to
provide
the
Claimant
with
a
safe
working
environment;
Page 3 of 32
vii.
Failing to make a suitable and sufficient assessment of the risks
created by the hazardous properties of the substances used in the
renovation works in addition to the level, type and duration of
the exposure to the said substances.
viii.
Failing in all the circumstances to take reasonable care for the
health, safety and well-being of the Claimant;
ix.
Exposing the Claimant to the unnecessary risk of injury to his
health;
x.
Exposing the Claimant to risk of injury to his health which the
Defendant knew, or ought to have known, about;
xi.
Failing to consider and take appropriate remedial actions in light
of the fact that the Claimant was evidently suffering from ill
health and/or the need to transfer him to another branch for the
duration of the renovations.
[7]
The Claimant contended that due to this illness, he is unable to fully care
for himself and will be unable to return to his current employment or any
employment of comparable stature. He further pleaded that he is unable to
move around without assistance and is likely to be on medication for the
foreseeable future. As a consequence he now suffers a handicap in the
labour market and his future earnings are affected.
[8]
The Claimant claimed special damages in the sum of thirty three thousand,
one hundred and seventy four dollars and fifty two cents ($33,174.52) and
general damages.
Page 4 of 32
o DEFENCE
[9]
The Defendant filed its Amended Defence on the 8th February, 2008
wherein it acknowledged that the Claimant was at all material times
employed by it as a Sales Officer in the Sales Department of its Tunapuna
West Branch. However, the Defendant denied that the Claimant was
present during the renovation works which commenced on or about the 6th
August, 2006 and was completed by the 11th August, 2006. It emphasized,
the painting of the Sales Department and the removal of all dust related to
the renovation works were completed on or about the 13th August, 2006.
[10]
It was contended by the Defendant that some members of staff of the Sales
Department, including the Claimant, were relocated to the ground floor of
the building to continue the discharge of their duties. However, the
Defendant denied that any smell of chemicals and/or fumes and/or dust
filtered to the said floor as a result of the renovation works. Further
renovation works involving paints was suspended on the 14th August,
2006 and/or were not executed during working hours. It was contended
that no further renovation works were executed subsequent to the 14th
August, 2006 which created any pungent smell and/or dangerous fumes
and/or dust.
[11]
It was denied by the Defendant that it instructed and/or made the
Claimant work in conditions that were hazardous to his health. At all
material times, the Defendant gave the Claimant the option of continuing
work at the said Branch or returning home, or relocating to the
Defendant’s East Branch. However, the Claimant voluntarily exercised his
Page 5 of 32
option to remain at the said Branch and to continue working until the 21st
August, 2006; as such he accepted with full knowledge of the risk of injury
or damage to himself and waived any claim in respect thereof by
continuing to execute his duties at the said Branch.
[12]
The Defendant denied that the injuries and/or illness sustained by the
Claimant is as a result of its negligence as it took every reasonable
precaution to secure the safety of the Claimant and/or provide a safe
system of work and/or safe working environment by:
i.
Opening the windows in the affected areas and reducing the
scent of any paint fumes with stationary buckets of water as
prescribed by the Defendant’s premises department;
ii.
Ceasing any further paint or scented paint work after the 14th
August, 2006;
iii.
Conducting most of the dust-related works off site;
iv.
Hiring competent independent contractors to conduct the said
renovation works; and,
v.
Providing the Claimant with the option to remain at work on his
return from vacation leave or to be relocated to its East Branch.
[13]
Further, or in the alternative, the Defendant contended that the alleged
injuries/illness sustained by the Claimant were caused or contributed to
by his own negligence. The Particulars of such negligence was outlined as
this are as follows:
Page 6 of 32
i.
Failing to stay away from work or to be relocated after the 14th
August, 2006 with full knowledge of a pre-existing disease
namely Sjogen’s disease;
ii.
Failing to advise and/or notify the Defendant of his said preexisting condition and/or his allergies;
iii.
Failing to take proper care of his safety.
EVIDENCE
o CLAIMANT
[14]
The evidence on behalf of the Claimant is contained in the Witness
Statements of:
i.
Keith Malchan filed on the 31st May, 2011;
ii.
Keino Camille Gibson filed on the 31st May, 2011; and,
iii.
Dr. Peter Poon-King filed on the 31st May, 2011.
KEITH MALCHAN
[15]
The Claimant has been employed by the Defendant for twenty-eight (28)
years and assigned to various Branches and Units during his tenure. At the
material time, he was assigned to the Tunapuna West Branch since June,
2005 where he remained until September, 2006 when he was placed on
medical leave.
Page 7 of 32
[16]
He contended that the Defendant commenced renovations in the Sales
Department of the Tunapuna West Branch on the weekend of the 5th
August, 2006 with the intention of remodelling the entire Sales
Department. The Claimant reported to work on the 14th August, 2006 and
immediately noticed and inhaled a pungent smell and fumes, which was
mostly experienced on the first floor but permeated the entire building.
The smell made him nauseous, his sinuses became stuff and by midday he
had the first of many headaches.
[17]
Due to the smell, dust and fumes, the Claimant was informed that the
Sales Department would be operating on the ground floor on that day.
Consequently, the staff, including the Claimant, was advised by
Management at the Branch that they could leave as soon as the Bank was
closed and that all attempts were being made to get rid of the chemical
smell and dust that permeated the building.
[18]
Nevertheless the Claimant returned to work thereafter and was still met
with the pungent smells and continued to work at his desk which was
often covered in a thick layer of white dust. Despite these conditions, the
Claimant’s supervisor advised all employees that work would continue as
normal.
[19]
On several occasions, the Claimant complained to his supervisor that he
was unwell and sought permission to leave work early. He was given
permission on the condition that he took a shorter than usual lunch-break.
On that occasion he left work at approximately 3:00 pm. Further, he
informed his supervisor on the 16th August, 2006 that he believed that the
fumes and dust in the building was the reason he was constantly unwell.
Page 8 of 32
As a result, he was notified by the Manager, Mr. Hyland, that they would
look into possibly transferring him with someone at the Tunapuna East
Branch or set up a computer in another part of the building for him to use.
[20]
The Claimant was advised by Mr. V. Singh on the 17th August, 2006 that
because renovation work was being done to the entire branch of the bank a
computer could not be set up downstairs for hi m to work and
arrangements were not yet made to send him to another Branch. He was
then relocated to the Personal Banking Officer office, which was located on
the same floor as the Sales Department with the exception that it had a
small window which could be opened for fresh air. However, the room
was still filled with the chemical smell which made the Claimant feel ill.
[21]
It was contended by the Claimant that despite often being relocated to
different parts of the building to escape the smell and to quell his
symptoms, he would inevitably have to shuffle between various other
departments to complete his tasks. Therefore, he was still inhaling the
fumes and being bombarded with the dust and other intoxicants
permeating the air.
[22]
Subsequently, on the 21st August, 2006, the Claimant after enduring
constant and incessant headaches, increasingly stuffy sinuses and a
scratchy throat attended the medical office of his family doctor, Dr.
Devarashetty.
The doctor prescribed medication for his described
symptoms and advised that should his symptoms worsened to return
immediately to her office. The Claimant notified his manager of this
doctor’s visit and went on sick leave for another week.
Page 9 of 32
[23]
The Claimant resumed duties on the 28th August, 2006 despite still being ill
and was met with the same conditions in the office; the fumes were still
present, which only exacerbated his symptoms. However, he did not ask to
leave early that day because he feared being penalised as he had just
returned from sick leave and he was the only one complaining of
symptoms associated with the renovation works. He returned to work the
next day in a worsened state. He again complained to his supervisor but
nothing was done to assist him.
[24]
On the 30th August, 2006 the Claimant was unable to attend work and
instead had cause to visit his doctor as his symptoms were worsening. He
was given stronger medication in hopes of alleviating his symptoms and
was given sick leave for the rest of the week. He duly informed the
Defendant of this.
[25]
The Claimant resumed duties on the 4 th September, 2006 despite minimal
relief from the medication prescribed. The fumes were still present and he
was forced to leave work at midday to once again visit Dr. Devarashetty.
He was given more medication and the rest of the week off. In addition,
Dr. Devarashetty wrote a letter to the Defendant requesting that he be
relocated to an alternative work environment if possible. The Claimant’s
symptoms worsened and he was referred to Dr. Solaiman Juman, an ear,
nose and throat specialist.
[26]
Upon examination, Dr. Juman found that the Claimant’s sinuses were
extremely inflamed; fluid had gathered in his ears; and the upper part of
his oesophagus was inflamed. The Claimant’s medication was once again
increased and he was placed on twenty-one (21) days sick leave.
Page 10 of 32
[27]
On his follow-up visit to Dr. Juman on the 28th September, 2006, the
Claimant indicated that his symptoms were not subsiding. Dr. Juman’s
preliminary diagnosis was that the Claimant was suffering from a disease
called ‘Sjogren’s Syndrome’. He referred the Claimant to Dr. Peter Poon
King, a specialist in Rheumatology.
[28]
The Claimant was examined by Dr. Poon King on the 4th October, 2006
who confirmed that he indeed had Sjogren’s syndrome. Dr. Poon King
advised him that it was a debilitating disease with no known cure however
with proper treatment it was possible to manage the disease.
[29]
It was contended by the Claimant that in February, 2007, the Defendant
advised him that his salary would be stopped and that he would be placed
on the National Insurance payments. In response to this, the Claimant
made an appointment to see Ms. S. Fingal, the Defendant’s Industrial
Relations Manager, to discuss the matter with her. In their discussions, Ms.
Fingal denied any responsibility on the Defendant’s part for the Claimant’s
illness; she also indicated that the Claimant would be sent to the
Defendant’s doctor for his opinion on the Claimant’s condition.
[30]
In March, 2007, the Defendant’s doctor, Dr. Sonia Roache, examined the
Claimant and also concluded that he was suffering from Sjorgen’s
Syndrome. She opined that his condition may have been triggered by an
allergic-type response to an external agent. Following this assessment, the
Claimant’s salary was reinstated.
Page 11 of 32
[31]
The Claimant again saw Dr. Roache in August, 2007.She informed the
Claimant that based on his medical condition, it was recommended that
the Defendant retire him on medical grounds.
[32]
The Claimant did not receive any communication from the Defendant
thereafter despite writing to them to inquire how they intended to address
his situation. Consequently, he sought legal redress sometime in
November, 2007.
KEINO CAMILLE GIBSON
[33]
This witness had been employed by the Defendant for over eighteen (18)
years. She was assigned to the Tunapuna West Branch in 2006 and had
been assigned for a period of seven (7) years.
[34]
She testified that the Defendant commenced renovations at the Tunapuna
West Branch in the Sales Department on the weekend of the 5th August,
2006 in order to remodel the entire Department.
[35]
On the 7th August, 2006, she reported for duty and was overwhelmed by
the “overbearing and pungent chemical fumes” that permeated the air in
the Branch. She stated that most of the staff from the Sales Department
decided to remain outside the building because of the fumes. They were
later sent to the Tunapuna East Branch for that day as a result of the
unbearable fumes in the Department.
[36]
Upon her return to the Tunapuna West Branch on the 8th August, 2006, the
fumes were still present and continued to be present.
Page 12 of 32
DR. PETER POON-KING
[37]
This witness testified that he is a specialist physician in the field
rheumatology and is based at the Westshore Medical Centre. He explained
that rheumatology is a sub-speciality in internal medicine devoted to the
diagnosis and therapy of conditions and diseases affecting joints, muscles,
bones and soft tissue in addition to certain autoimmune diseases and
connective tissue disorders. He also explained he has been specialising in
this field since 1990.
[38]
Dr. Poon-King testified that Sjogren’s Syndrome is a chronic allergy-type
disorder in which susceptible or allergy prone individuals develop
symptoms including swollen salivary glands, dryness of the eyes and
mouth, joint pains, persistent dry cough and prolonged fatigue. This
disease can be triggered by powerful stressful (psychological or physical)
situations. Sinusitis is also an example of an event that can trigger this
condition. He further stated that there is no known cure, but that it can be
controlled by medication and lifestyle measures.
[39]
He stated that he first saw the Claimant on the 9th October, 2006 after being
referred by Dr. Solaiman Juman. At the time, the Claimant had a twomonth history of dryness of mouth and eyes, knee pains and swelling of
the salivary glands after developing sinusitis. Dr. Poon-King diagnosed
the Claimant with Sjogren’s Syndrome and concluded that sinusitis was
the probable trigger of the condition.
[40]
The Claimant was placed on a course of medication in hopes that he could
return to regular work duties once his condition was brought under
Page 13 of 32
control. However, there was difficulty in bringing the Claimant’s
symptoms under control. As a consequence, the doctor wrote to the
Defendant on the 9th November, 2006 explaining the difficulty in the
Claimant’s treatment and advised that he be placed on sick leave for a
further period of three (3) months.
[41]
Dr. Poon-King testified further that that throughout 2007 to 2008, he was
unable to bring the Claimant’s condition under total control. By January
2009 he concluded that the Claimant was now able to function in his
environment and thus able to carry out the various activities of daily
living, such as working. He opined, however, that due to his disability the
Claimant would need to be selective about the type of job that he could
undertake. He advised the Claimant that he should not resume his duties
as a sales officer at the Defendant’s bank because of the importance of
managing his stress levels so as to avoid exacerbation of his condition.
[42]
The Doctor stated in conclusion that the Claimant’s condition had not been
brought under total control as of the date of trial; further he gave as his
opinion that Mr. Malchan will require lifelong medical management.
o DEFENDANT
[43]
The evidence on behalf of the Defendant is contained in the Witness
Statements of:
i.
Dale Kalloo filed on the 18th September, 2009 and a Supplemental
Witness Statement filed on the 16th March, 2010;
ii.
Hilton Hyland filed on the 18th September, 2009;
Page 14 of 32
iii.
Ian Roberts filed on the 18th September, 2009
iv.
Shameed Ghany filed on the 31st May, 2011;
v.
Dr. Sonia Roache filed on the 31st May, 2011; and,
vi.
Terence Seemungal filed on the 31st May, 2011.
DALE KALLOO
[44]
This witness is the Project Co-ordinator of Unicom Limited and was
assigned, along with Ian Roberts, to oversee the completion of the
renovation works at the Sales Department of the Tunapuna West Branch of
the Defendant. The Project entailed the design and renovation of the
Branch by installing new partitions or cubicles, workstations and
repainting the Sales Department.
[45]
These works commenced on the weekend of the 5th and 6th August, 2006; it
was only conducted on the weekends. He attested that prior to starting
work each day the windows of the Branch were opened and the air
conditioning units were turned off to allow the air to filter outside the
building and to prevent dust from circulating in the building.
[46]
On the 5th August, 2006, the old gypsum partitions were removed and the
Sales Department was cleaned of all dust and material in preparation for
the installation of the new partitions the following day. On the 6th August,
2006, the new partitions were installed by using screws to fasten frames
made from pre-painted pitch pine wood to the floors and walls of the
Department. Thereafter, pieces of pre-fabricated and pre-painted fireboard
were fastened to the pitch pine frames. The pre-painted fireboard was
Page 15 of 32
used for the new partitions because it could be pre-fabricated off-site
thereby reducing the amount of dust involved in installation; this also
shortened the installation process.
[47]
He testified that during the installation of the partitions, there was
minimal cutting and sanding as the fireboard and pitch pine were prefabricated and pre-painted off site. If either needed to be cut on-site a
“chop-saw” that had an industrial vacuum attached was used; this
collected approximately 90% of the dust made during cutting. The Witness
further stated that for any large-scale cutting, the wood was taken outside
to prevent an accumulation of dust in the Department.
[48]
After the installation of the partitions, an odourless, water-based, quick
drying wood filler called “white lightening” was used to fill the joints in
the partitions. Sand paper was then used on the joints of the partition and
it was then painted with emulsion paint. Upon completion, the
Department was then cleaned by wiping down all the surfaces and
vacuuming the floors before vacating the premises.
[49]
Mr. Kalloo returned on the weekend of the 12th and 13th August, 2006 with
Ian Roberts and the workers to continue the renovation works. During the
period, the workers installed electrical outlets in the new partitions, glass
at the top of the partitions, filled and painted the partitions and painting
the majority of the walls in the Sales Department. He stated that all
painting was done with ‘Berger Everglow Low Sheen Emulsion paint’,
which is quick drying with a low and tolerable odour. Upon completion of
these works the Department was cleaned before the premises were
vacated.
Page 16 of 32
[50]
On the 14th August, 2006, Mr. Kalloo testified that he received a telephone
call from Ian Roberts who requested that the former meet him at the
Defendant’s Tunapuna West Branch as employees were complaining that
the Sales Department smelled of paint. Upon his arrival with several of his
workers around 10:00 a.m. they cleaned the entire Sales Department: all
mats were taken off site and thoroughly cleaned; all surfaces (desks,
cabinets, doors, window blinds and windows) were wiped down with
disinfectant and Lysol was sprayed throughout the Branch. He attested
that when he left the Branch that evening there was no longer any scent of
paint fumes.
[51]
The witness and his work crew returned to the Branch on the weekend of
the 19th and 20th August, 2006 to install the workstations and complete the
remainder of the painting. Ian Roberts was already on site and he had
opened the windows and turned off all the air conditioning units in
preparation for the works. The installation of the workstations and
painting was completed by 4:00 p.m. on the 20th August, 2006. Before
leaving, the Branch was once again cleaned before they vacated the
premises.
IAN ROBERTS
[52]
The evidence of this witness was similar with that of Dale Kalloo.
HILTON HYLAND
[53]
Mr. Hyland is currently the Branch Sales Manager of the Defendant’s
Independence Square Branch in Port of Spain. At the material time, he was
Page 17 of 32
the Branch Sales Manager for the Defendant’s Tunapuna West and East
Branches. During this period, the Claimant worked as a Sales Officer at the
Tunapuna West Branch under his management.
[54]
He too testified that renovation works commenced at the Sales Department
of the Tunapuna West Branch were only executed on the weekends.
[55]
He also stated that when he arrived at work on the 7th August, 2006 the
Branch was thoroughly cleaned and he received no complaints about dust
or any aspect of the renovation works from any of the employees of the
Sales Department.
[56]
He acknowledged that the Claimant resumed duties on the 14th August,
2006 after being on a week’s vacation. On this day, all the employees,
including the Claimant, were relocated to the Defendant’s Tunapuna East
Branch as the Staff complained that the Sales Department smelled of paint
fumes. He stated that the smell of paint on the ground floor was faint and
tolerable so he instructed employees that they were allowed to either
conduct their duties from the ground floor of the Branch or they could
choose to be relocated to the Defendant’s Tunapuna East Branch.
[57]
The majority of the Sales Department, including the Claimant, chose to
continue to work from the ground floor while a few were relocated to the
sister branch. The Claimant worked the majority of that day without
complaint but was nevertheless allowed to leave work early at 2:35 p.m.
after notifying his immediate supervisor, Mrs. Wendy Maunday that was
he was feeling ill that afternoon.
Page 18 of 32
[58]
After relocating the employees, Mr. Hyland contacted Ian Roberts, the
Defendant’s Civil Engineer, about the issue. In response, the Department
was thoroughly cleaned by Ian Roberts’ team which lasted from about
10:00 a.m. to 4:00 p.m. All the surfaces were wiped down with disinfectant;
Lysol was sprayed throughout the Branch and the mats were taken off site
to be cleaned.
[59]
Mr. Hyland asserted that as a result of the cleanup exercise there was no
smell of paint fumes the following day in the Sales Department and
business was conducted from the Sales Department as per normal.
However he instructed that employees still had the option of moving to
another department to perform their duties, to relocating to the sister
Branch, or returning home.
[60]
He testified further that all employees returned to work in the Sales
Department except the Claimant and there were no complaints about the
presence of dust and/or paint fumes other than that of the Claimant.
Notwithstanding this fact the Claimant was allowed to work from the
ground floor and once again allowed to leave early because of complaints
of feeling ill.
[61]
Mr. Hyland’s evidence is that despite the options given to the Claimant,
the latter chose to remain at the Tunapuna West Branch and worked from
the ground floor for most of the time; he frequently asked to leave the job
early due to ill health and his requests were granted. On the 16th August,
2006 the Claimant was given permission to leave at 12:00 noon after once
again complaining of feeling ill but did not leave the Branch until 2:50 p.m.
Page 19 of 32
[62]
This witness’ testimony is that efforts were made by the Defendant to
relocate the Claimant to the Tunapuna East Branch in the face of his
deteriorating health. His move could not be accomplished immediately
since his wife was employed at that Branch and it was against the Bank’s
policy to have spouses work at the same branch. Arrangements for Mr.
Malchan’s relocation were completed on 21st August 2006 but were not
effected because he did not report for work that day but submitted a sick
leave certificate.
[63]
Mr. Hyland also stated that the Claimant reported for duty on the 28th and
29th August, 2006 at the Tunapuna West Branch but complained that his
condition had not improved and was given permission to leave early on
both days. On the 29th August, 2006, during a discussion with the
Claimant, the latter disclosed that he suffers from Sjogren’s Syndrome,
having been diagnosed several years prior to the renovations at the
Branch. Mr. Hyland testified that the Claimant also told him that he
believed the condition to be hereditary as his son had also been diagnosed
with it.
[64]
This witness asserted that from August to September the Claimant
submitted several sick leave certificates and only worked for short periods.
On the 4th September he received a sick leave certificate for four (4) days
sick leave beginning the 5th September, 2009 on the ground that the
Claimant was having “recurrent allergic reactions secondary to glue
fumes”. Mr. Hyland noted that the Claimant had never complained of glue
fumes since he returned to work on the 14th August, 2006. The Claimant
has since been on sick leave.
Page 20 of 32
SHAMEED GHANY
[65]
Mr. Ghany is a Technical Officer 2 at Berger Paints Trinidad Limited
specializing in the manufacture and design of paints for use in painting
interior and exterior surfaces.
[66]
He testified that Berger Everglow Low Sheen Emulsion is considered to be
a non-toxic paint. The most hazardous additives used in this paint, and
which are common to most emulsion paints, are the “dry state” and “wet
state” biocides. These are used to prevent microbial activity of the paint in
its wet state and to prevent microorganisms from growing in the paint.
[67]
The biocides used in Berger emulsion paints are manufactured by THOR
Chemicals. The Deponent stated that to the best of his knowledge and
experience these chemicals are not known to have an effect on humans
especially after the paint has dried, once used in the correct concentrations.
[68]
He further asserted that Berger Everglow Low Sheen Emulsion paint
generally presents no risk to persons exposed to paint in its wet or dry
state, as the same ingredients are present in most brands of body paint. In
his opinion persons generally suffer no discomfort whatsoever especially if
the area is well ventilated.
DR. SONIA ROACHE
[69]
Dr. Roach is a General Practitioner with experience in work-related
injuries and diseases. By letter dated 16th March 2007 she was retained by
the Defendant to have the Claimant medically assessed for the purpose of
Page 21 of 32
assessing the extent of his illness as well as his ability to resume his duties
as a Customer Sales Officer.
[70]
From her examination of the Claimant on the 16th March, 2007, she
concluded that Dr. Poon-King’s diagnosis of the Claimant was correct and
that he was indeed suffering from Sjorgen’s Syndrome. She reported that
at the time of examination the Claimant was still symptomatic
experiencing difficulty: (i) to move around due to painful hip joints; (ii) to
write and move his fingers and shoulders; and (iii) in concentrating,
focusing and seeing documents due to dry eyes.
[71]
In her witness statement Dr. Roach further outlined that at the material
time, the Claimant was not responding as quickly and fully as might have
been desired given the course of treatment administered by Dr. Poon-King.
Her opinion was the Claimant was suffering from psychological stress
caused by the uncertainties of his illness. She also formed the view that the
new medication he was placed on by Dr. Poon-King was also potentially
draining on his body.
[72]
This witness, in her report, gave the following opinion:
“1) Mr. Malchan was then medically unfit to return to his job as a
Customer Sales Officer with the Bank;
2) He should be given at least three (3) months on the regime treatment he
was then undergoing to try for recovery and then possibly a return to full
duties or to alternative less strenuous duties;
3) Should this not be possible – either if no leave extension can be
entertained at the moment; no alternative position become available should
Page 22 of 32
he be allowed to return by Dr. Poon-King or should he not respond to
treatment within Three (3) Months (ie by July 01, 2007), then his services
should be terminated on medical grounds bearing in mind the information
below
4) She further opined that it must be noted that this condition is many
times triggered by an allergy-type response to an external agent. He reports
an allergy-type sinus reaction to glue fumes at work, where he had to be
treated by his GP Dr. Devarashetty in August/September, 2006. Any
separation therefore will need to include Percentage disability benefits based
on an occupationally related disease.”1
[73]
On the Defendant’s request Dr. Roach again examined the Claimant on the
24th August, 2007. At the time, the Claimant had relapsed and Dr. PoonKing could not give a date of return to work by the Claimant.
She
reported that the Claimant was of the view that he could not return to his
job since he could not perform at optimum and he believed that the
Defendant would not give him time off.
[74]
She therefore concluded that the Claimant was medically unfit to return to
optimal employment and advised that his services be terminated on
medical grounds.
DR. TERENCE SEEMUNGAL
[75]
The Deponent is a specialist in Chest and Internal medicine. He examined
the Claimant on the 12th December, 2010 and again on the 31st March, 2010
1
Medical Report of Dr. Sonia Roache, dated the 9th April, 2007 and annexed to her Witness Statement as “SR 1”
filed on the 31st May, 2011
Page 23 of 32
for the purpose of providing an expert opinion on the Claimant’s diagnosis
of Sjorgen’s Syndrome and its effects.
[76]
Upon his examination of the Claimant, the Deponent confirmed that the
Claimant suffers from Sjorgen’s Syndrome. However, he stated that there
is no medical evidence to support the hypothesis that the Claimant’s
condition was caused by his exposure to paint.
ISSUES
[77]
The main issue to be determined by the Court is whether the Defendant
failed to provide a safe system of work/working environment for the
Claimant following its renovation works resulting in the Claimant’s
diagnosis of Sjorgen’s Syndrome.
ANALYSIS
[78]
In an action for negligence, the onus is on the Claimant to: (1) show that
the Defendant had a duty of care towards him; (2) the Defendant breached
that duty; (3) but for the breach of that duty of care the claimant would
have not sustained loss; (4) the Claimant’s loss was foreseeable; and (5) the
Claimant has suffered damage as a result.
[79]
The duty of care of an employer, other than that imposed by statute, is to
take reasonable care for their employees’ safety.2 In Wilsons & Clyde Coal
2
Charlesworth and Percy on Negligence, 12th Edition, para. 11-02
Page 24 of 32
Co. Ltd. v English3, Lord Wright opined:
“I think the whole course of authority consistently recognises a duty which
rests on the employer and which is personal to the employer, to take
reasonable care for the safety of his workmen, whether the employer be an
individual, a firm, or a company, and whether or not the employer takes
any share in the conduct of the operations…”
Further, the employer’s duty is stricter than the duty to take reasonable
care for oneself, and it exists whether or not the employment is inherently
dangerous.4
[80]
This duty of care includes providing a safe place of work. Goddard LJ in
Naismith v London Film Productions Ltd.5 opined that duty was:
“… not merely to warn against unusual dangers known to him … but also
to make the place of employment … as safe as the exercise of reasonable skill
and care would permit.”
[81]
The Common Law prescribes that it is sufficient that the employee’s place
of work be maintained in as safe a condition as reasonable care by a
prudent employer can make. The test to be applied is set out in Stokes v
Guest, Keen and Nettleford (Bolts and Nuts) Ltd.6 where Swanwick J.
opined:
3
[1938] A.C. 57, 78
Charlesworth and Percy on Negligence, 12th Edition, para. 11-05
5
[1939] 1 All ER 794, 798
6
[1968] 1 WLR 1776, as cited in Charlesworth and Percy on Negligence, 12 th Edition, para. 11-02
4
Page 25 of 32
“… the overall test is still the conduct of the reasonable and prudent
employer, taking positive thought the safety of his workers in light of what
he knows or ought to know; where there is a recognised and general practice
which has been followed for a substantial period in similar circumstances
without mishap, he is entitled to follow it, unless in the light of common
sense or newer knowledge it is clearly bad; but, where there is developing
knowledge, he must keep reasonably abreast of it and not be too slow to
apply it; and where he has in fact greater than average knowledge of the
risks, he may be thereby obliged to make a more than average or standard
precautions. He must weigh up the risk in terms of the likelihood of injury
occurring and the potential consequences if it does, and he must balance
against this the probably effectiveness of the precautions. He must weight
up the risk in terms of the likelihood of injury occurring and the potential
consequences if it does; and he must balance against this the probably
effectiveness of the precautions that can be taken to meet it and the expense
and inconvenience they involve. If he is found to have fallen below the
standard to be properly expected of a reasonable and prudent employer in
these respects, he is negligent.”
[82]
It is also recognised that this duty encompasses the protection of an
employee from temporarily unsafe conditions, as a place of employment
may become unsafe owing to some temporary condition. The test to be
applied is whether or not a reasonably prudent employer would have
caused or permitted the existence of that state of affairs of which the
complaint is made.7
7
Charlesworth and Percy on Negligence, 12th Edition, para. 11-26
Page 26 of 32
[83]
In the present case, the renovation works that were carried out in the Sales
Department rendered the work environment temporarily unsafe, i.e. while
the works were being carried out. It is not disputed that the renovation
works were only carried out on the weekends. However, these works
consisted largely of repainting the Department as evidenced by both Dale
Kalloo and Ian Roberts who testified that painting occurred on:
i.
6th August, 2006 – where portions of the partitions were painted8;
ii.
12th and 13th August, 2006 – filling and painting the partitions
and “majority of the walls of the Sales Department were also
painted”9;
iii.
[84]
20th August, 2006 – remainder of the painting was completed.10
Ian Roberts testified that work on Sunday, 6th August, 2006 was completed
at 8:00 p.m.11; work on Sunday, 13th August, 2006 was completed at 8:00
p.m.12; and on Sunday, 20th August, 2006 work was completed before 4:00
p.m.13. He further testified that on each occasion he remained an additional
two (2) hours to air the Department out before he closed the windows and
turn back on the air conditioning units.
[85]
It seems to me however, that two (2) hours was insufficient time to “air
out” the building which was undoubtedly filled with strong fumes. The
8
Para. 7 of the Witness Statement of Dale Kalloo filed on the 18 th September, 2009; Para. 3-4 of the Witness
Statement of Ian Roberts filed on the 18th September, 2009
9
Para. 8 of the Witness Statement of Dale Kalloo filed on the 18th September, 2009; Para. 5 of the Witness
Statement of Ian Roberts filed on the 18th September, 2009
10
Para. 11 of the Witness Statement of Dale Kalloo filed on the 18 th September, 2009; Para. 10 of the Witness
Statement of Ian Roberts filed on the 18th September, 2009
11
Para. 4 of the Witness Statement of Ian Roberts filed on the 18 th September, 2009
12
Para. 7 of the Witness Statement of Ian Roberts filed on the 18 th September, 2009
13
Para. 10 of the Witness Statement of Ian Roberts filed on the 18th September, 2009
Page 27 of 32
evidence clearly shows that paint and other noxious fumes had filled the
building having been circulated throughout by the air-conditioning. I do
accept the Claimant’s evidence that there was a heavy layer of dirt on
desks and other surfaces both on the 9th and the 16th August. I also accept
the Claimant’s evidence that on the 14th August the combination of dust
and fumes triggered an episode of continued acute sinusitis. The fact that
other employees were not so affected is not relevant to the issue that I
must determine.
[86]
Ms. Keino Camille Gibson testified that the following day – i.e. the 8th
August, 2006 – she could still smell fumes in the Department. Under crossexamination, she stated that while the fumes did not thereafter directly
after her she cannot verify that it did not have a negative impact to any of
the other employees who were so susceptible.
[87]
On this point, I note the Eggshell Skull Rule which establishes that a
defendant has to take his victim as he finds him; if it is reasonable to
foresee some injury, however slight, to the claimant assuming him to be a
normal person, then the defendant is answerable for the full extent of the
injury which the claimant may sustain owing to some particular
susceptibility.14 In Owens v Liverpool Corporation15, Mackinnon L.J.
opined:
“… one who is guilty of negligence to another must put up with the
idiosyncrasies of his victim that increase the likelihood or extent of damage
14
15
Clerk & Lindsell on Torts, 12th Edition, para. 2-158
[1939] 1 KB 394, 400-401
Page 28 of 32
to him: it is no answer to claim for a fractured skull that the owner had an
usually fragile one.”
Further, in Smith v Leech Brain & Co. Ltd.16 a workman suffered a burn
on his lip when a fleck of molten metal splashed onto it. While the burn
healed, it was discovered that due to a premalignant condition the burn
triggered a cancerous growth which eventually led to the workman’s
death. Lord Parker CJ opined:
“The test is not whether these employers could reasonably have foreseen
that a burn would cause cancer and that he would die. The question is
whether these employers could reasonably foresee the type of injury
suffered, namely the burn. What, in the particular case, is the amount of
damage which he suffers as a result of that burn, depends upon the
characteristics and constitution of the victim.”
The present case is on all fours with Smith v Leech Brain & Co. Ltd supra
in that the Claimant had an underlying condition namely sinusitis which
was triggered by a work related event i.e. strong fumes from the paint and
dust from the sawing of the partitions.
[88]
Dr. Poon-King testified that the Claimant had a predisposition to Sjogren’s
Syndrome and would have possibly developed same given the right
trigger. He asserted that psychological and physical stresses are triggers of
the condition and that chemical fumes are the likely physical stress trigger.
Further, Dr. Seemungal in his Medical Report stated:
16
[1942] 2 QB 405
Page 29 of 32
“[The Claimant] gave no history of use of anticholinergic drugs – a not
uncommon cause of ‘dry mouth’ … Further, there is no evidence of another
connective tissue disease such SLE or Rheumatoid Arthritis which could
have cause Mr. Malchan’s Sjorgen’s Syndrome.”17
[89]
From the evidence before me, it is apparent that the Defendant provided
the trigger by exposing the Claimant to paint and/or other fumes from the
renovation works at the Sales Department; had this not occurred it is quite
possible that the Claimant could have gone his entire life without
developing this condition or may have developed it at some later point in
time.
[90]
I do not accept Mr. Hyland’s evidence that the Claimant told him that he
suffered from Sjorern’s Syndrome before renovations and that his son also
suffered from this ailment.
[91]
The Defendant through its Witness, Shameed Ghanny, provided a product
information sheet on “Acticide HF”18 which Shameed Ghanny testified
was the most hazardous chemical used in their paint manufacturing
process. A perusal of this document identified the following possible
health risks:
“Information pertaining to particular dangers for man and environment
R36 Irritating to eyes
17
Medical Report of Dr. Terence Seemungal dated the 26th July, 2010 annexed to this Witness Statement filed on
the 31st May, 2011 as “TS 1”
18
Annexed to the Witness Statement of Shameed Ghanny filed on the 31 st May, 2001 as “SG 1”
Page 30 of 32
R40 Possible risks of irreversible side effects
R43 May cause sensitization by skin contact
Toxicological information
Primary irritant effect:
[92]
-
On the skin: irritant for skin and mucous membrane
-
On the eye: irritant effect
-
Sensitization: sensitization possible by skin contact”
Based on the evidence before me, I am of the view that it is reasonably
foreseeable that exposing its employees to paint fumes and other
renovation-related works could cause one or more of them to develop
some form of respiratory ailment. The fact that the Claimant alone
appeared to have suffered a severe reaction does not negate his claim.
[93]
Hilton Hyland acknowledged that he was at all times aware that the
Claimant continuously complained of being unwell to the extent that he
was considering relocating the Claimant to another Branch in an effort to
alleviate his illness. Given this fact, it would seem prudent to me that
further precautionary measures should have been taken in the interim
while the relocation process was being done. However, Hilton Hyland
testified that the Claimant chose to remain under such conditions despite
given the option to leave work early and/or to stay home. The Claimant
denied this outright; his evidence was that after he complained that he was
not feeling well the Defendant only allowed him to leave after working
through his lunch hour or taking a shorter lunch period; as a result he
remained in the environment until early afternoon.
Page 31 of 32
[94]
In my view it is improbable that the Claimant, suffering such severe and
acute symptoms would pass on the opportunity to either leave work early
or stay at home. It is more probable, in my view, that the Claimant was not
given the time off as he alleged but was forced by the Defendant to remain
in an environment which was hazardous to his health. No doubt his
concern for his job at that time would have caused him to remain
notwithstanding the risk to his health.
[95]
Accordingly, I hold that the Defendant failed to provide a safe system or
work/safe working environment for the Claimant.
CONCLUSION
[96]
In the circumstances, I make the following orders:
i.
Judgment for the Claimant as against the Defendant;
ii.
The Defendant to pay the Claimant’s costs and damages, to be
assessed.
JOAN CHARLES
JUDGE
Page 32 of 32