Cancer payout to late cement worker slashed
Published:Wednesday | February 3, 2021 | 12:20 AMTanesha Mundle/Staff Reporter
The Court of Appeal has slashed by half $24 million in damages awarded to a former Jamaica Pre-Mix Concrete Limited employee almost five years ago after a Supreme Court judge ruled that the company had been derelict in its duty of care that resulted in the ex-worker contracting lung cancer.
The appeal court has, however, upheld the Supreme Court’s September 2016 ruling that the manufacturing company was liable to pay damages to the now-deceased worker, Brenton Hennie, for pain and suffering and loss of amenities.
A three-judge panel, in allowing the appeal, in part, ruled that the award for damages set by Judge Georgiana Fraser was inordinately high and that $12 million be paid with interest at the rate of three per cent per annum from January 6, 2013, until January 27, 2017.
The Court of Appeal judges also ruled that Hennie be awarded $200,000 for loss of expectation of life.
They, however, awarded the appellant 20 per cent of its costs of appeal.
Hennie, who had filed the claim against the manufacturing company in 2012 after he was diagnosed with the cancer and was later relieved of his job, died days before the judgment was handed down on September 12, 2016.
HENNIE’S CLAIM
The ex-worker, who was employed to the company from around 1999, sought, in his lawsuit, damages for breach of statutory duty and breach of contract and negligence. He argued that he was continuously exposed to concrete mixture containing substances hazardous to his health, resulting in him sustaining serious personal injury, loss, and damage.
Hennie further accused the company of being negligent in its duty of care, including failing to provide a safe place of work, failing to provide the requisite warnings, notices, and/or special instructions to employees about the dangers and/or hazards of inhalation of cement/concrete particulate, dust and/or substance so as to prove injury, as well as failing to install warning signs and provide safety equipment.
COMPANY’S DEFENCE
But the company, in its defence, argued then that Hennie never worked at the batching plant and that he worked off-site, initially as a labourer with the finishing crew and, subsequently, as a pump attendant and ,at all times, had only come in contact with wet cement.
The company further said that Hennie had been provided with protective gear, including a hard hat, hard boots, dust mask, and eyewear, and that though he was never assigned to the batching plant, it, at all material times, had a dust protective shield that effectively minimised pollution.
The company, however, after losing the lawsuit, appealed the judge’s decision, challenging the amount that was awarded and asked for a reduction in the Court of Appeal.
“The appellant’s position was, therefore, that while it owed Mr Hennie a duty of care, and it had acted in breach of that duty, this breach of duty did not cause Mr Hennie to contract lung cancer,” the judgment read.
“In addition, it was not foreseeable that its breach of duty would have led to Mr Hennie contracting lung cancer.”
Attorney-at-law Kashina Moore represented Shawn Hennie, the administrator in the Brenton Hennie estate, while the Queen’s counsel, Patrick Foster and attorney Symone Mayhew defended the company.