National Post

April 26, 2002

Unharmed woman awarded $104,000

Judge gives compensation even as he doubts her pain

Francine Dubé
National Post

A woman who believes she was poisoned by a chemical spill in 1993 has been awarded $104,000 by a Manitoba court, even though the judge acknowledged the woman is likely mistaken in her belief.

Lynette Mary Sant, 55, complained of a variety of symptoms after a bottle of phenol, a highly toxic chemical, leaked in her brother's car. She had no direct contact with the spilled fluid, only later inhaling vapours from items that had come into contact with it.

After the exposure, Ms. Sant complained of tingling and burning in her limbs and nausea, as well as several more unusual symptoms, including "painful jaw glands, big toes tingling and bluish, burning in brain" and "Can't sleep on back -- makes head feel as if it will explode."

She visited her physician 60 times after the spill and spent several weeks being tested at an institution called the Environmental Health Center in Dallas.

There it was found that while she exhibited symptoms when exposed to phenol, she also exhibited symptoms when exposed to distilled water.

Medical tests found no evidence of liver, kidney or nervous system damage. Her physician ultimately decided her symptoms "could be explained by menopause and might well be psychosomatic."

However, a psychiatrist who examined Ms. Sant said she was suffering from post-traumatic stress disorder as a result of the spill.

"It is not too much to say that she became obsessed with the incident and what it might have done to her -- and is still obsessed with it," Judge Gerald Jewers, of the Manitoba Court of Queen's Bench, wrote in his decision. "She has not proved that the phenol did her much actual physical harm; but she has proved that it has resulted in psychiatric damage, which has had a marked effect upon her."

Saying he had no doubt that, whatever their cause, Ms. Sant was genuinely experiencing the symptoms she described, he awarded her $45,855 in damages and special damages, $43,650 in lost income and opportunity to invest and interest of $5,000.

While the decision is unusual in Canada, it is not unprecedented, according to Patrick Riley, president of the Advocates Society of Manitoba.

"The analogy is this: If you assault someone and strike them lightly, you're committing a wrong. And if you hit them in the head and you damage their skull and you damage them more than you would a normal person, it doesn't matter that the normal person wouldn't be affected that way," he said.

"If she's nearby a chemical spill and has any kind of basis for feeling that she might be in danger and then has this susceptibility, then I'm not sure it's a wrong decision on that basis."

Nonetheless, the decision is a rarity, he said. "Judges in Canada are very strict on plaintiffs in these matters ... they're skeptical," Mr. Riley said.

Ms. Sant's ordeal began in July, 1993, when her brother Kenny, who was working as a courier, received a package from Jack Andrews Kirkfield Pharmacy Ltd., the defendant in the lawsuit.

Within an hour of placing the package in the back of his Hyundai Pony, Mr. Sant noticed a strong smell and began to develop a headache. He opened the rear hatch of the car and saw that a pink liquid had spilled from its container. Later, he found the bottom of the bottle that had contained the phenol had been eaten away.

When he called the pharmacy, Mr. Sant was warned not to get the substance on his hands -- phenol poisoning can be fatal. Unable to remove the smell from his car, Mr. Sant bought a new one four days later, but moved several items from the old car into the new one. Ms. Sant claims it was her exposure to phenol on her brother's clothes and even his breath that caused her symptoms, along with exposure to the items transferred between the two cars -- a tool box, booster cables, a light dome and a gas can -- although she only rode in the new car once.

Ms. Sant came to believe their entire apartment was contaminated. She and her brother eventually put all their belongings in storage and moved in with a friend, where they continue to live.

fdube@nationalpost.com

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