Donald v Minister of Works and Engineering and Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 19 February 2016
• Date: 19 February 2016
• Docket Number: Civil Jurisdiction 2010 No 269
• Court: Supreme Court (Bermuda)

[2016] Bda LR 18

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No 269

Between:

Emmerson Glenville Donald

Plaintiff

and

The Minister of Works And Engineering

and

The Attorney General

Defendants

Mr R Horseman for the Plaintiff

Mr J Cooper and Ms S Dill for the Defendants

The following cases were referred to in the judgment:

Herring v Ministry of Defence [2003] EWCA 528

Downing v Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216

XYZ v Portsmouth Hospitals NHS Trust [2011] EWHC 243

Failure to maintain a safe working environment — Chronic renal failure — Damages — Quantum — Future loss of earnings — Future medical expenses

JUDGMENT of Kawaley CJ

Background

1. The Applicant is a Jamaican national, now 44 years of age, who was employed as a Police Constable with the Bermuda Police Service (‘BPS’) in 2000 as a healthy 28 year old. He worked at the Somerset Police Station, Hamilton Police Station and the Forensic Support Unit at Southside, St David's. In or about 2004 he was diagnosed with chronic renal failure. Through his lawyers' letter dated February 18, 2008, the Plaintiff requested the Commissioner of Police to investigate the environmental status of those three work sites. By a Generally Indorsed Writ issued on March 2, 2010, the Plaintiff sought damages for personal injuries caused by the Defendants' failure to maintain a safe working environment.

2. On June 16, 2011, I gave directions for a trial on liability. By a Consent Order dated December 2, 2011, the action was stayed upon the Defendants' admission of liability with liberty to the Plaintiff to apply to proceed with a trial on quantum if damages were not agreed. The Plaintiff's Summons for Directions on quantum was issued on December 6, 2013; directions were ordered on January 16, 2014. Further pre-trial directions were ordered by Hellman J on October 2, 2014. Thereafter, there were various hearings related to discovery before, by Notice of Hearing dated November 2, 2015, the matter was fixed for trial in January 2016.

3. Despite a flurry of late exchanges of expert reports, amendments to the Plaintiff's Schedule of Loss and applications by the Defendants to adjourn the trial, the parties commendably managed to resolve various issues (notably general damages and the fact that the Plaintiff was entitled to retire early on health grounds) before trial. The trial not only proceeded on the fixed date; it was completed using only six of the original 10 days assigned.

4. One issue was reserved for possible future determination in the absence of agreement, the issue of the Plaintiff's loss of pension claim. On the final day of the trial, the Plaintiff's counsel handed in a signed undertaking by the Plaintiff to apply forthwith for retirement on health grounds. It is hoped by both the Plaintiff and the Defendants that this application will be processed swiftly by the relevant authorities so that the Plaintiff's employment can be brought to an end at the end of this month. He can then relocate to the United States where his wife is currently employed and access cheaper medical care.

5. That left for determination by this Court the Plaintiff's future loss of earnings and future medical expenses claims. The loss of earnings claim dispute mainly centred on which of three promotion scenarios would have likely occurred but for the injury; an incidental question was what sums the Plaintiff would likely have earned in post-retirement employment. Disagreement on the admissible extent of the future medical expenses claim mainly centred on assessments of the number of likely kidney transplants and related expenses, together with assessments of the risks of related and unrelated medical complications and consideration of the impact of reduced life expectancy.

Findings: past and future loss of earnings

The Plaintiff's case

6. Mr Horseman submitted that the Court should be guided by the overarching principles found in the following words of Potter LJ in Herring v Ministry of Defence[2003] EWCA 528:

‘In any claim for injury to earning capacity based on long-term disability, the task of the court in assessing a fair figure for future earnings loss can only be effected by forming a view as to the most likely future working career (“the career model”) of the claimant had he not been injured. Where, at the time of the accident, a claimant is in an established job or field of work in which he was likely to have remained but for the accident, the working assumption is that he would have done so and the conventional multiplier/multiplicand method of calculation is adopted, the court taking into account any reasonable prospects of promotion and/or movement to a higher salary scale or into a better remunerated field of work, by adjusting the multiplicand at an appropriate point along the scale of the multiplier. However, if a move of job or change of career at some stage is probable, it need only be allowed for so far as it is likely to increase or decrease the level of the claimant's earnings at the stage of his career at which it is regarded as likely to happen.If such a move or change is unlikely significantly to affect the future level of earnings, it may be ignored in the multiplicand/multiplier exercise, save that it will generally be appropriate to make a (moderate) discount in the multiplier in respect of contingencies or “the vicissitudes of life”.’

7. In Herring, at the time of the injury, the claimant was a sports coach who was pursuing an HND1 in law with a view to becoming a police officer. Employment evidence showed that he was a strong candidate for selection. The trial judge found that he was likely to have reached sergeant but that promotion beyond that was too speculative. Future loss of earnings based on the assumption that he would have worked until retirement age as a policeman and retired as a sergeant were assessed by the trial judge but reduced by 25% to take into the risk that he might not have become a policeman at all. The Court of Appeal not only upheld this award but increased it, in part holding that the discount to account for the risk that the claimant would not have joined the Police at all was unjustified in light of clear evidence of comparable earning capacity in his existing career.

8. Mr Horseman also relied on the facts of this case to illustrate the point that the Court's jurisdiction to assess promotion prospects for an existing police officer, such as the Plaintiff, was far broader than the Defendants contended. The Plaintiff's claim had two elements to it:

• i. a claim for loss of earnings as a police officer until retirement at age 55, based on his own assessments of his future prospects and undisputed documentary evidence as to his academic and professional record; and

• ii. a claim for post-retirement loss of earnings based on a combination of his own evidence and supporting undisputed evidence from two former police officers who are now lawyers.

9. The financial computations in relation to this claim were supported by an Accountant's Report prepared by Mathew Clingerman of KRyS Global. This Report posited three possible scenarios for the Plaintiff's career as a police officer which the Plaintiff supported through his own evidence:

• i. Scenario 1: the Plaintiff would have been promoted to the rank of Sergeant on January 1, 2010 and retired at that rank at age 55 on January 17, 2027;

• ii. Scenario 2: the Plaintiff would in addition be promoted to the rank of Inspector on January 1, 2015;

• iii. Scenario 3: the Plaintiff would in addition have been further promoted to the ranks of Chief Inspector on January 1, 2017 and Superintendent on January 1, 2022.

10. The Plaintiff relied, inter alia,on the following facts (confirmed by documents attached to his first Witness Statement) to support his own subjective assessment that Scenario 3 best reflected his promotion prospects:

• i. between 1990 and 1993, the Plaintiff worked as Primary School teacher after leaving school where he attended Sixth Form, was a prefect and obtained two “A” Levels ;

• ii. in 1993 he joined the Jamaican Police Force, qualifying to use six different types of firearm and subsequently placing first in the entire country in the 1996 Grade 1 Promotional Examination. Although he was working in Bermuda from 2000, the Plaintiff was promoted to the rank of Corporal in the Jamaican Constabulary Force in 2002 before he formally resigned from that Force in 2003;

• iii. in or about 1996 he commenced studies while working in Jamaica and obtained a BA Degree from the University of the West Indies (‘UWI’) on July 1, 2000;

• iv. after joining the BPS and before being diagnosed with chronic renal failure in 2004, he obtained a Perfect Attendance Certificate in 2002, and received the following assessment from then Chief Inspector DeSilva:

  ‘This is an outstanding officer who carries himself in a most professional manner. He is extremely productive and has a deep spirit of dedication. He has stuck through some very problematic times …and is a calming and professional influence on his colleagues…’;

• v. the Plaintiff registered for an LLB Degree with the University of London in 2001 and attempted the Intermediate Examinations in 2005, after he had become ill. The Plaintiff passed two of the four courses he attempted, Public Law and Common Law Reasoning and Institutions;

• vi. even after becoming ill in 2004, the Plaintiff demonstrated leadership qualities. For instance, in 2009 he made a written recommendation to his superior officers that Bermuda adopt a witness protection programme, years before such a programme was implemented. He was also “Team Player of Year” for 2013.

11. As far as what his post-retirement career prospects would have been, had he not sustained the work-place illnesses which he succumbed to, the Plaintiff relied upon his own evidence that he...