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Cancer patient lashes Gov’t

'Unconscionable,' says customs officer who got disease on the job, after State challenges court award

BY PAUL HENRY Co-ordinator, Crime/Court Desk henryp@jamaicaobserver.com

Sunday, June 08, 2014    

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A 38-year-old man who developed cancer of the blood due to his exposure to a shipment of dangerous chemicals at Kingston Wharves 10 years ago, has described as unconscionable the State's decision to fight a Supreme Court order awarding him future medical expenses.

"I think they are unconscionable; very, very," Radcliffe Taylor told the Jamaica Observer during an interview at his Clarendon home last weekend.

"It would be better if they had challenged the pain and suffering award because the sickness hasn't gone away. I have to battle it every week," he said in reference to his weekly treatment.

He said he had led an active social life and played football in his community. Now, with his immune system damaged by the cancer, the father of an 11-year-old son said he spends most his days locked away in his house when he's not at work.

As a result of his condition, Taylor was also been warned against strenuous activities, and has been transferred from his duties as a Customs tally officer to the Accounts Department of Jamaica Customs.

Still, there are times, he said, when he's unable to work for days on end due to his illness. And when things get bad, he may only show up for work one day of the week.

Just two weeks ago, Taylor spent three days in hospital after falling ill. He was ordered by doctors to take a few days' rest upon his release.

Taylor's life was forever changed on February 19, 2004. The circumstance surrounding his developing cancer has not been challenged by the State, which accepted liability after the stricken father filed suit against the commissioner of Customs, Kingston Wharves Ltd, and the attorney general of Jamaica. The case against Kingston Wharves was subsequently dropped.

The Sunday Observer obtained a copy of the ruling by Justice Evan Brown in Taylor's favour and which outlines his ordeal from the start.

Taylor was among a group of workers at Kingston Wharves asked to inspect a damaged container on-board a Mexico-bound ship that was emitting a foul odour.

The container was carrying drums of chemicals called Dimethoate Tech 98% -- an insecticide used to kill mites and insects.

The workers were only provided with dust respirators, no protective gear, throughout the four hours it took them to remove and inspect the drums and place them back in

the container.

Within hours, workers in the vicinity of the opened container started falling ill, according to the ruling. Taylor himself started experiencing itching in the throat and runny eyes, and continued, over the course of months, to experience sickness, including severe pains to his shoulder and lower back, which caused him to seek medical assistance.

Taylor was later diagnosed with chronic myeloid leukaemia at Peebles Hospital, in October 2004, after falling ill during a family vacation in the British Virgin Islands.

He told the Sunday Observer that he stopped at a red light when he passed out and woke up in the hospital where he was diagnosed.

He was subsequently flown back to Jamaica for treatment by Dr M E Bromfield at University Hospital of the West Indies' Department of Pathology. His diagnosis was confirmed at the urology service of the hospital.

In a medical report dated December 30, 2004 that was presented as medical evidence in Taylor's case, Dr Bromfield noted that Taylor "will require life-long treatment for his condition".

Taylor was also seen by a Dr Garfield Forbes at Kingston Public Hospital. In his medical report, Forbes stated that Taylor had chronic myeloid leukaemia. The doctor said that he had "complete haematological response" to the drug Imatinib, which is to say the treatment had worked well in restoring normal blood count.

Taylor's lawsuit was heard on January 9 and special damages of $265,000 was agreed between the attorney general and Taylor's legal team led by Nigel Jones.

This left the issue of general damages to be hashed out among Taylor, the commissioner of Customs, and the attorney general. Submissions were made and Brown reserved judgement until April 11 when he awarded a total of $165.6 million, which includes the $265,000 previously agreed.

A breakdown of the award in Taylor's favour is as follows:

"General damages: $12,513,520 and US$760,239 ($83,626,290)

"Pain and suffering: J$8,500,000

"Future medical expenses: $2,484,000 and US$552,000 ($60,720,000).

He was also awarded three per cent interest on the special damages and the award for pain and suffering.

Costs of $40,000 were awarded in his favour.

"In the case before me, not only has the claimant endured immense pain and suffering, but this will likely continue for the rest of his natural life," wrote Justice Brown.

Brown noted that Taylor was still a young man, that he continues to suffer from the disease and is likely to face hardship on the labour market.

"The collective effect of these factors means that Radcliffe Taylor is faced with an extended period of pain and suffering. Ten years have already passed and he is still suffering. Hence, it appears to the court that it would not be excessive to make an award at the upper end of the scale," Brown wrote.

The figures for future medical expenses were arrived at based on monthly estimates for treatment quoted in Jamaican and US figures, which, in some instances, ran up to US$3,500 per month. The total figures per year were tallied, then multiplied by 23, in keeping with legal precedence.

This is what is being appealed. The State is claiming that Justice Brown erred in finding that Taylor was entitled to an award for future medical care. The application by Brown of the multiplier of 23 is also being challenged as being too high.

The State is contending in its grounds of appeal that Brown erred in law by making an award for future medical care in circumstances where it was not pleaded in Taylor's particulars of claim. The grounds also stated that the assessment of the quantum of damages for future medical care is unsupported by medical evidence. The State is also claiming that the sum assessed for future medical care is "inordinately high".

The appellant will be asking the court to vary the award of damages to disallow the award for future medical care; "or alternatively to reduce the quantum of future medical care by applying a lower multiplier in the calculation".

But, last weekend, Taylor told the Sunday Observer that the sum for future medical expenses may not even be enough, as he has to be switching medication and at times has to get stronger doses when his body gets accustomed to the treatment.

To date, he hasn't received any money from the court award. He's only able to access treatment due to the kindness of friends, he said.

"I'm sure if it was one of their relatives they would get their money. But because me is a country boy dem believe me nuh have no sense," Taylor said.

Taylor's case reportedly led to some changes. A trained and fully equipped team is now in place to handle chemical shipments, while containers coming into the island's ports are now properly labelled.

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