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Man awarded $4m in toxic mould payout

Emmerson Donald, centre right. (Photograph by Akil Simmons)

A police officer is in line to receive more than $4 million in damages after he suffered chronic health problems from being exposed to toxic mould at Hamilton and Somerset police stations.

Emmerson Donald has provisionally been awarded $2.5 million in lost earnings and $1.5 million for future medical expenses as a result of his condition on top of the $450,000 he has already been paid for “pain and suffering”.

The ruling by Chief Justice Ian Kawaley is believed to be the first case where substantial damages have been awarded in Bermuda for a mould injury case.

Last month Mr Donald, 44, and his lawyer, Richard Horseman, took their claim to the Supreme Court after the Ministry of Works and Engineering admitted liability.

In the ruling, the Chief Justice makes clear that both parties can still make further submissions about the total damages if they are not agreed on.

He said: “The total award for loss of earnings, subject to any adjustments as may be advised by or agreed between counsel is: $97,713 (past earnings), $1,133,594 (Bermuda Police Service future) and $1,495,886 (less two years — second career).

“These amounts are based on figures calculated by the plaintiff’s expert Mr Clingerman applying a discount rate, which was essentially agreed.

“Subject to the parties hopefully agreeing the adjustment required to give effect to a 13-year rather than a 15-year second career, the total award for loss of earnings is in the region of $2.5 million.”

The Chief Justice further ruled: “The total future medical expense award, assuming a life expectancy of 21 more years, is accordingly $1,120,000 for (kidney) transplant and dialysis, $346,978 for ongoing medical expenses and $105,000 for risk of additional serious illnesses, that totals $1,571,978.” Mr Donald came to Bermuda in 2000 after seven years’ experience with the Jamaican police service.

The Supreme Court heard he was an “outstanding” officer with an exemplary record until he first fell ill with chronic renal failure in 2003.

In a sworn statement Mr Donald said his “body and mind were broken down” and his “life was hijacked” by the illness.

Mr Donald, who still undergoes dialysis three times a week for his health problems, maintained he could have be promoted through the ranks all the way up to superintendent by 2022 had it not been for his medical condition.

In relation to his future promotional prospects, Chief Justice Kawaley said: “I find that the plaintiff would most likely have been promoted to the rank of sergeant with effect from January 1, 2010, as he himself claims.

“I accordingly find that the plaintiff’s career, but for the defendants’ negligence, would have likely followed scenario two and that he would have been further promoted to the rank of inspector with effect from January 1, 2015 and retired in that rank at age 55.

“This promotion date appears to me to be reasonable bearing in mind that the plaintiff’s most high-flying peers were promoted to the rank of inspector six years earlier, in 2009.”

The Chief Justice added: “It is common ground that the plaintiff will require at least one kidney transplant preceded and followed by ongoing dialysis treatment, is subject to increased health risks, notably cancer and cardiovascular disease, and has a reduced life expectancy.”