Loretta Frett (as Executrix of the Estate of Jeuel Simeon Frett, deceased) Claimant v J.S. Archibald & Company (a trading name) Defendant

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeVentose, M.,Eddy Ventose,Master [Ag.]
Judgment Date14 Feb 2017
Neutral CitationVG 2017 HC 4,[2017] ECSC J0214-1
Docket NumberCLAIM NO.: BVIHCV2015/0209
[2017] ECSC J0214-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Before:

Eddy Ventose Master [Ag.]

CLAIM NO.: BVIHCV2015/0209

Between:
Loretta Frett (as Executrix of the Estate of Jeuel Simeon Frett, deceased)
Claimant
and
J.S. Archibald & Co (a trading name)
Defendant
Appearances:

Mr. Jamal Smith with Ms. Shanel Taylor with for the Claimant

Mrs. Patricia Archibald-Bowers for the Defendant

1

Ventose, M. [AG.] : This is an unfortunate case of professional negligence. On 20 October 2015, the court entered judgment in default of defence in favour of the Claimant with damages to be assessed. Only the Claimant has filed submissions and authorities on the assessment of damages. The Defendant filed Form 31 on 15 April 2016 indicating that it wished to cross-examine the Claimant and to make submissions to the court and has participated in the assessment to that extent.

Background Facts – The Professional Negligence Claim
2

The background facts as outlined in the statement of case of the Claimant, Ms. Loretta Frett, the widow and Executrix of the Estate of Jeuel Simeon Frett, deceased, are as follows. The Defendant is the trading name of the sole proprietorship owned by Mrs. Patricia Archibald-Bowers providing legal services as barristers and solicitors. The Defendant provided legal services to the Claimant in BVIHCV 2007/0137 Jeuel Simeon Frett v Attorney General of the British Virgin Islands, a personal injury claim on the death her husband.

3

The claim was commenced on 7 June 2007 against the British Virgin Islands Health Services Authority but later amended to add the Attorney General. Ellis J by order dated 23 September 2014 listed the matter for trial on 10–12 November 2014. On 5 November 2014, five (5) days before the trial was to start, the Defendant filed an application to be removed from the record. The Defendant made no appearance when the matter came up for trial on 10 November 2014 and the trial judge dismissed the claim. On 4 December 2014, the Defendant made an application to set aside the order of the trial judge dismissing the claim. Mrs. Patricia Archibald-Bowers, counsel on record, argued that she had to leave the territory with her child and had requested an adjourned date for the hearing of the application to remove counsel from the record. The trial judge rejected the application to set aside her order because the Defendant could provide no good reason why she was absent on the 10 November 2014 the first day of the trial.

4

The Claimant avers that the Defendant: (1) represented to the Claimant as having the skills and abilities of barristers and solicitors to prosecute the claim before the courts in the Virgin Islands; (2) owed a duty of care to the Claimant to attend court on 10 November 2014, or to provide the Claimant and the court with a good reason for her absence and taking any such measures as was necessary to avoid the trial due to absence; and (3) was in breach of that duty as the Defendant failed to inform both the Claimant and the court of any valid reason for non-attendance at court on 10 November 2014 or taking any necessary steps to avoid the trial being aborted. The Claimant also states that as a result of the forgoing, the Claimant has suffered damage by way of payment of legal fees and the benefit of the outcome of the trial.

5

As mentioned earlier, the court entered judgment in default of defence in favour of the Claimant on 20 October 2015 with damages to be assessed. The Defendant's application to set aside judgment in default of defence and to file and serve a defence out of time filed on 18 April 2016 was refused by the court on 3 October 2016.

The Background Facts – The Underlying Claim
6

In BVIHCV 2007/0137 Loretta Frett v Attorney General of the British Virgin Islands, the Government of the Virgin Islands employed Jeuel Simeon Frett (the " Deceased"), the husband of Claimant, as a maintenance officer. The claim was originally made against the British Virgin Islands Health Services Authority (the " Authority") and amended later to add the Attorney General. The claim against the Authority was subsequently struck off. The Claimant claimed against the Defendant for breach of contract of employment and/or negligence as a result of which the Deceased in the course of his employment with the Authority developed Mesothelioma, a cancer caused by the Deceased's exposure to asbestos particles at his workplace with the Authority, which eventually resulted in his death.

7

The Claimant avers that in the course of the Deceased's employment he was instructed by an employee of the Health Department of the British Virgin Islands to assist in repairs at the Road Town Clinic (the " Clinic") that included knocking down walls and cutting holes in the ceiling. The Claimant also avers that during that time the Deceased discovered and was informed by the servants of the Authority that the building contained asbestos. The Claimant states that during the period from January to June 2001 the Deceased was frequently exposed to asbestos during his daily tasks of breaking down walls and cutting holes into the ceiling. The Claimant also states that while performing these tasks the Deceased was exposed to the dust and debris from the building that would cover his skin and he would inhale the dust that contained asbestos. The Claimant avers that no protective clothing was provided by the Authority to protect the Deceased from inhalation and physical exposure to asbestos. The Claimant states that the Deceased became ill in 2004 and in July 2006 he was informed by his medical practitioners that he was suffering from mesothelioma.

8

Cecil Turnbull, the Deceased's immediate supervisor, in his witness statement filed on 24 March 2010, avers that the Deceased was never instructed to carry out work on the roof of the Clinic during the renovation works and that the work carried out by the Deceased consisted of tearing down kitchen cabinets and assisting with the configuration of the reception area of the building. He also avers that the Deceased did not carry out any work that involved cutting holes in the ceiling or knocking down walls of the building. Mr. Turnbull states that as maintenance supervisor he is aware that all maintenance staff received or had access to protective/industrial clothing in the form of overalls and industrial facemasks. Mr. Turnbull also states that the Deceased sometimes refused to wear his facemask because he complained that he was suffocating in them. Mr. Turnbull avers that prior to working for the government of the Virgin Islands, the Deceased worked in the United States of America but was unaware of the type of work with which he was engaged while there.

9

In a witness statement filed on 25 July 2013, Grace-Ann Marie Creque, retired Senior Administrative Officer at the Authority, avers that before the start of the renovation works an assessment was done on the building to determine the presence of, and if so the health risks posed by, asbestos in the building which housed the Clinic. The assessment revealed the presence of asbestos in the corrugated roofing of the building but that no health risks were posed by the presence of the asbestos because as long as the roofing remained undisturbed there was no risk of exposure to asbestos. Ms. Creque also avers that the Deceased was assigned to assist with the first or preliminary phase of the renovation works, which comprised routine maintenance that was exclusively limited to the expansion of the reception area and the filing room and this aspect commenced in or around June 2000.

10

More specifically, Ms. Creque states that the Deceased assisted in the removal of kitchen cabinets to facilitate the installation of filing cabinets and the partial reconfiguration of the reception area, and that none of these tasks involved work associated with the corrugated roofing of the building which was identified with asbestos. Ms. Creque avers that while the Deceased was performing these tasks, the contract to renovate the Clinic had not yet been awarded. She states that it was the policy of the Community Health Services to provide staff of the maintenance unit which included the Deceased with overalls and industrial facemasks when carrying out their assigned duties, particularly when engaged in work involving wood sanding or exposure to saw dust.

11

The export report of Professor Terrence Seemungal dated 21 July 2013 states that, having reviewed the medical information provided to him, the case for mesothelioma is weak because at least two other diagnoses have not been considered: hepatocellular carcinoma proven on biopsy on 1 August 2006 and adenocarcinoma. Professor Seeemungal states that in his opinion it is extremely unlikely that the Deceased contracted mesothelioma because of having allegedly been exposed to asbestos particles during the course of employment between January and June 2001 while working as a maintenance officer at the Clinic. The evidence Professor Seemungal considered included: (1) a letter from Dr. T. Ibrahim dated 6 May 2005 which states that the Claimant had ascites and following herniorhaphy, microscopic examination of the hernia sac was suggestive of mesothelioma; (2) a liver biopsy dated 23 June 2006 which shows hepatocellular carcinoma; and (3) the death certificate dated 22 September 2006 which shows the cause of death as metastatic carcinoma.

12

The following are derived from the expert report of Professor Seemungal: Malignant mesothelioma is a tumour arising from the mesothelial or submesothelial cells of the lining of the lung, the lining of the gut, or the lining of the heart. It may occur in other organs with low frequency but over 80 per cent of all cases of all mesotheliomas occur in the lung. The most common risk factor of mesothelioma is asbestos but it is not the only risk factor and that approximately 20 per cent of cases of...

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