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Tuesday, July 15, 2025

Judge grants $2m to ex-bank employee

Af­ter in­hal­ing paint fumes at work­place...

by

20140418

Re­pub­lic Bank Lim­it­ed has been or­dered to pay more than $2 mil­lion in com­pen­sa­tion to a 51-year-old em­ploy­ee who de­vel­oped an in­cur­able res­pi­ra­to­ry dis­ease af­ter be­ing ex­posed to paint fumes left over from ren­o­va­tion works at the one of the bank's two branch­es in Tu­na­puna in 2006. Kei­th Malchan, of Tu­na­puna, suc­cess­ful­ly proved his neg­li­gence law­suit against his em­ploy­er, ear­li­er this year al­though med­ical ev­i­dence in the case showed that he was pre­dis­posed to the ill­ness.His lawyer, Lar­ry Lal­la, had ar­gued that al­though his client had a risk of con­tract­ing the dis­ease, the bank was still li­able as it was his em­ploy­er's neg­li­gence that cause Malchan to be ex­posed to the stim­uli which trig­gered the dis­ease.

"In the present case, com­mon­sense would have led the bank to con­clude that ex­pos­ing the bank's staff to air that con­tains ab­nor­mal pol­lu­tants (from the ren­o­va­tion process) could lead the em­ploy­ees to de­vel­op res­pi­ra­to­ry ail­ments," Lal­la said in his sub­mis­sions in the case. It was Malchan's case that the bank, as his em­ploy­er, had a du­ty of care to­wards him, which it breached by forc­ing him to work in the un­safe con­di­tions.Lal­la al­so con­tend­ed that the bank should be held li­able for the dis­com­fort Malchan suf­fered through con­tract­ing the dis­ease, even though it was not pos­si­ble for the bank's man­age­ment to rea­son­ably fore­see it as a con­se­quence of its ren­o­va­tion works at the branch.

The dis­ease, Sjo­gren Syn­drome, is a chron­ic au­toim­mune con­di­tion in which the body's white blood cells de­stroy the ex­ocrine glands, which pro­duce sali­va and tears. Symp­toms in­clude swollen sali­vary glands, dry­ness of the eye and mouth, joint pains, per­sis­tent dry cough and pro­longed fa­tigue. There is no known cure.Dur­ing a hear­ing for as­sess­ing Malchan's com­pen­sa­tion in the Port-of-Spain High Court, on Mon­day, Jus­tice Joan Charles award­ed him $400,000 for his pain, suf­fer­ing and loss of ameni­ties, $1,275,552 rep­re­sent­ing his loss of in­come and an an­nu­al prof­it-shar­ing ben­e­fit and $230,098 for his past and fu­ture med­ical bills.

Charles al­so or­dered that the bank pay Malchan three per cent in­ter­est on the dam­ages for the sev­en-year pe­ri­od be­tween when he filed the claim and won it. At­tor­ney Kendall Alexan­der of the law firm MG Daly and Part­ners ap­peared for the bank. The judge had ruled in Feb­ru­ary that the bank was li­able.Ac­cord­ing to his ev­i­dence in his case, Malchan, who has been em­ployed with the bank for more than 30 years, had gone on va­ca­tion in Au­gust 2006 and when he re­turned to work at the Tu­na­puna West branch of the bank in the mid­dle of the month, the build­ing was un­der­go­ing ren­o­va­tions.

Malchan claimed that on his first day of work he com­plained of hav­ing headaches and si­nus is­sues be­cause of the strong scent of paint in the build­ing. De­spite his com­plaints, he said he was in­struct­ed that he could on­ly leave work when the bank was closed to cus­tomers. Malchan claimed he was forced to work un­der the con­di­tions at the bank for a week be­fore be­ing of­fered a trans­fer to the bank's oth­er branch in Tu­na­puna. His trans­fer could not be im­me­di­ate­ly processed be­cause his wife was al­ready em­ployed at that branch and the trans­fer would be con­trary to the bank's pol­i­cy on the em­ploy­ment of spous­es..Malchan's claim of be­ing forced to re­main un­der the con­di­tions was op­posed by the bank's rep­re­sen­ta­tive Hilton Hy­land who claimed that Malchan was al­lowed to leave work ear­ly dur­ing that week and he re­fused and chose to com­plete his work­day.

"No rea­son­able em­ploy­ee would re­main at work to in­hale paint fumes if giv­en the op­tion to re­turn home," Lal­la said while mak­ing sub­mis­sions chal­leng­ing Hy­land's ev­i­dence. Af­ter com­plet­ing work that week, Malchan went on sick leave dur­ing which time he went to his per­son­al doc­tors and was di­ag­nosed with the syn­drome which left him an al­most 40 per cent per­ma­nent-par­tial dis­abil­i­ty. His con­di­tion was lat­er con­firmed by the com­pa­ny's doc­tor, So­nia Roache, which led him to be placed on leave with pay. He has not re­turned to work since.In his claim, Malchan al­leged that be­cause of the high risk of ex­ac­er­bat­ing his con­di­tion his mo­bil­i­ty and ac­tiv­i­ty lev­el has sig­nif­i­cant­ly de­creased."As it is I am un­able to take part in nor­mal play with my chil­dren or to par­tic­i­pate in nor­mal fam­i­ly ac­tiv­i­ties...I of­ten­times sit and watch them play, over­come by sad­ness," Malchan said.

He al­so claimed that the con­di­tion has se­ri­ous­ly af­fect­ed his re­la­tion­ship with his wife. He said: "My dis­ease has af­fect­ed the ac­tiv­i­ties that I en­joy with my wife as I can be no longer be in­ti­mate with her."Malchan al­so claimed he now re­quired life-long treat­ment of the dis­ease in­clu­sive of doc­tor vis­its four times a year as well as a dai­ly reg­i­men of a pletho­ra of dif­fer­ent med­ica­tion.


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