Radcliffe Taylor v Commissioner of Customs and Others

• Jurisdiction: Jamaica
• Judge: E. Brown, J
• Judgment Date: 11 April 2014
• Neutral Citation: [2014] JMSC Civ 49
• Docket Number: CLAIM NO. 2010 HCV 00576
• Court: Supreme Court (Jamaica)
• Date: 11 April 2014

[2014] JMSC Civ 49

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2010 HCV 00576

Between

Radcliffe Taylor

Claimant

and

Commissioner of Customs

First Defendant

and

Kingston Wharves Limited

Second Defendant

and

The Attorney General of Jamaica

Third Defendant

Mr. Jason A. Jones instructed by Nigel Jones & Co. for the claimant.

Mr. Harrington McDermott instructed by Director of State Proceedings for the first and third defendants

Assessment of damages — Development of chronic myeloid leukaemia — Loss of earning capacity — Claimant previously employed as a Custom Tally Officer

Assessment of damages — Breach of statutory duty — Breach of contractual duty — Negligence

OPEN COURT

E. Brown, J

1 The life of Radcliffe Taylor (the claimant) changed drastically following his exposure to a dangerous chemical on Thursday, February 19 ^th 2004. Mr. Taylor was then 26 years old and was employed at the Jamaica Customs Department as a customs tally officer. He sustained injuries during the course of his employment when he inhaled a hazardous substance on the premises of Kingston Wharves Limited. This seemingly minor incident eventually caused him to develop Chronic Myeloid Leukaemia (CML).

2 The matter involved a damaged container on board a ship. He was among the persons called to inspect the container and remove drums from it. The ship's cargo was said to contain chemicals known as Dimethoate Tech 98%. Foul odours were emanating from the unopened container and it was suspected that the chemicals in the cargo might be dangerous. The claimant along with other workers was asked to remove the seal from the container. They were then provided with dust respirators by the third defendant. However, no protective gear was provided by the claimant's employer, the first defendant, while the claimant worked on the cargo. The dust respirator was the only gear that the claimant wore throughout the entire operation.

3 The operation lasted for about four hours after which the items were placed back into the cargo. Within hours of exposure to the substance, workers who were in the vicinity of the container while it was opened, started falling ill. In particular, the claimant started experiencing itching of his throat and running eyes within four hours of contact working on the cargo. He continued to experience sickness over the following months which included severe pains to his shoulder and lower back. As a result, he sought medical assistance.

4 In October 2004 while he was on vacation with his family in Tortola, British Virgin Islands, the claimant became seriously ill and was admitted to the Peebles Hospital. It was then that he was diagnosed with CML which occurred as a result of his exposure to the dangerous chemical Dimethoate Tech 98%.

5 The claimant was subsequently flown back to Jamaica as the Peebles Hospital did not have adequate facilities to properly treat his situation. Upon his return to Jamaica, he was treated at the Department of Pathology at the University Hospital of the West Indies by Doctors including Dr. M.E. Bromfield.

MEDICAL EVIDENCE

6 While in Tortola, the claimant was seen by Dr. M. Yee Sing. The doctor in his medical report stated that the claimant was admitted to the Peebles Hospital approximately twenty hours after he had priaprism. He had been trying home remedies during this time and denied using any topical or oral medications to effect an erection. He alluded to having pain in his left abdomen and flu like symptoms with fever three weeks before arriving in Tortola. The claimant as part of a medical examination had blood test done in March 2004 after being exposed to chemicals while working at the Newport West Wharf in Jamaica. He had no history of Weight loss or weakness.

7 The claimant was given Ativan, Largactil, iv fluids and Voltaren but with no positive effect. A diagnosis of CML with secondary priaprism was made. He was transfused two units of blood prior to having his penile shunt to alleviate his priaprism. The pain was localized at the tip of his penis and there was no recurrence of his priaprism.

8 While at the University Hospital of the West Indies (UHWI), the claimant was seen by Dr. M.E. Bromfield, who in his medical report dated December 30 ^th , 2004, stated that the claimant had been diagnosed with CML. This diagnosis came after he was transferred to the Urology Service, UHWI, in September 2004, from the British Virgin Islands. Dr. Bromfield noted that, in addition to his surgical complaint, the claimant was found to have an elevated white blood cell count and blood film suggestive of CML. The doctor also indicated that chromosomal studies confirmed the presence of the Philadelphia chromosome, which is diagnostic of the disease. He also indicated that the claimant will require life-long treatment and was being followed up as an outpatient at the Haematology Clinic.

9 The claimant was also seen by Dr. Garfield Forbes at the Kingston Public Hospital. In his medical report dated February 21 ^st , 2010, Dr. Forbes stated that the claimant was referred to his practice on October 1 ^st , 2010 with a history of being previously diagnosed with CML in October 2004. Dr. Forbes noted that his assessment was that the claimant had CML with complete haematological response to Imatinib. He noted that the claimant was reportedly exposed to two chemical agents, Ethephan which has no known carcinogenic potential and Dimethoate (an organophosphate insecticide) which has been extensively studied and is classified as a Group C carcinogen. It has strict guidelines for its use and handling as it may be absorbed via the skin, respiratory tract and gastrointestinal tract.

GENERAL DAMAGES FOR PAIN AND SUFFERING

10 Special damages was agreed at J$265,000. The court is now called upon to assess general damages. To make this assessment the court's attention was drawn to the following cases, Linden Palmer v Neville Walker & Michael St. John 5 Khans 216; Joan Morgan and Cecil Lawrence v Ministry of Health 6 Khans 220; Nicholas v Ministry of Defence 2013 EWHC 2351 and Angie Moore v Mervis Rahman 4 Khans 4. The claim was discontinued against the defendant. Consequently, the assessment of damages concerns the first and third defendants only.

11 Generally, the purpose of an award of damages is to give the claimant adequate compensation for the damage, loss or injury suffered. When the Court is asked to assess damages in any case of tort, the court is constrained to make an award of damages which, as far as money can do should put the injured party in the same position as he would have been had he not suffered the wrong for which he is now being compensated. This principle was enunciated by Lord Blackburn in Livingstone v Rawyards Coal Co [1880 Appeal CAS.25].

‘I do not think there is any difference of opinion as to its being a general rule that, where any injuries to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get that sum of money which will put the party who has been injured, or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.’

12 Counsel for the claimant sought to highlight that, the award for pain and suffering in Jamaica is achieved by an award of a sum of money calculated on the basis of established principles and the use of comparable cases. This principle has been approved and applied by the Jamaican Court of Appeal, as seen in the case of Beverley Dryden v Winston Layne SCCA 44/87 delivered 12 ^th June, 1989, where Campbell J.A. stated that,

‘Personal injury awards should be reasonable and assessed with moderation and that as far as possible comparable injuries should be compensated by comparable awards.’

Thus, applying the rule in this case, the court is minded to address two primary factors. Firstly, the basis on which a claimant is to receive compensation and secondly, what would constitute a reasonable sum to compensate the claimant.

13 Counsel for the claimant maintained that, though in making the assessment, comparisons ought to be made with past awards that are made in Jamaica, there are instances in which there are no precedent awards made in this jurisdiction. It was submitted that this is one such case, where there is no literature on any similarly decided cases in Jamaica.

14 In Linden Palmer v Neville Walker & Michael St. John Suit No. 1990 P 072, the court had a similar dilemma. In that case, the plaintiff a Deputy Commissioner of Police was injured in a motor vehicle collision on March 9 ^th , 1990. He was admitted to the Kingston Public Hospital (KPH), and there remained until June 20, 1990. On discharge, he visited the Orthopaedic Clinic for further treatment of fractures until October 1990. He had physiotherapy from June to November of the said year. On discharge from the hospital he could not walk and was mobilized...