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Judge grants $2m to ex-bank employee

After inhaling paint fumes at workplace...
Published: 
Friday, April 18, 2014

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.