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Senior Counsel Ramesh Lawrence Maharaj has recommended that the Commission of Enquiry into the Paria/LMCS Diving Tragedy team make a recommendation to the Occupational Health and Safety Authority (OSHA) to prosecute both Paria and LMCS for breaches of the OSH Act.
Maharaj made the recommendation in his closing statement to the CoE yesterday, as the Commission wrapped up its evidentiary hearings.
The Commission is expected to deliver its completed report into the accident that claimed the lives of Fyzal Kurban, Yusuf Henry, Rishi Nagassar and Kazim Ali Jr to the President by April 30.
In summing up, Maharaj said, “Having regard to OSHA’s preliminary report which suggested that both Paria and LMCS may be guilty of various offences under the OSH Act, the Commissioners may consider, based on the evidence, to recommend proceedings by OSHA.”
He said Section 91:2 of the OSH Act permits the authority to bring summary proceedings against those who have been found to have breached the act upon the advice of a Commission.
Maharaj quoted the section of the legislation, saying, “Those proceedings are required to be commenced within six months after the making of the report. The OSH Act imposes duties on employers, occupiers, employees, manufacturers and suppliers of goods.”
He said the act provides that these duties are also owed to visitors and people who may be affected by the operations or activities of the industrial establishment.
The Commission’s chairman, King’s Counsel Jerome Lynch, said the Government must be made aware that there is a six-month window in which OSHA can bring charges before the Magistrates’ Court, so the final report can be made public within the timeframe.
“Any delay in disclosing the report generally and in particular to OSHA, may result in them being time-barred,” Lynch said.
Maharaj also noted the provision of the OSH Act which states that where a person is killed, injured or develops a disease because their employer breached the act, the employer should be liable to a fine of $100,000 or three years’ salary for the employee, whichever is greater.
Lynch noted that the sum was not “very much” and Maharaj agreed.
“We are recommending that this should be looked at, because the evidence here discloses breaches of the OSH Act,” Maharaj said.
Lynch interjected, telling Maharaj that according to its remit, the Commission could not recommend prosecution.
“All we can do is identify the facts and recommend, for example, either the DPP (Director of Public Prosecutions) or OSHA consider whether or not an offence has been disclosed. It is not part of our responsibility to say LMCS are guilty of a crime or Paria are guilty of some breach of the act,” Lynch said.
He said the Commission can only present the facts and invite either of those bodies to consider whether anyone or any company should be prosecuted.
Maharaj also addressed the call made by attorney for several of the victims’ families, Prakash Ramadhar, for the Commission to recommend criminal charges in this matter.
“That issue has been engaging the attention of the legal team but we are not prepared at this time because we have not completed our research on that, we would have the research completed within the next seven days,” Maharaj said.
However, Maharaj said when that research is complete and he gives his legal opinion to the Commission, that recommendation will not be made public.
Maharaj also recommended that contractors undergo specific training for Paria’s permit-to-work system and that the company hires independent experts to assess all works before awarding contracts.
He said if Paria had hired an independent expert, the risk of a Delta P hazard could have been identified long before the accident which sucked the men into the pipeline.
Maharaj said Paria and other companies should adopt and apply international diving standards and that all new pipelines should be augmented to 48 inches instead of 30.
He said pipelines should also have elbows that are configured so divers can turn around inside them.
Commission to review evidence
Meanwhile, over the next two months, Lynch KC and subsea specialist Gregory Wilson will consider all the evidence relating to the February 25, 2022, accident at Paria Fuel Trading Company Limited’s Pointe-a-Pierre facility before submitting a report to the President.
The Commission began its sitting at the end of November, 2022, and yesterday, its evidentiary hearings came to an end.
Lynch vowed that the four divers who lost their lives will not be forgotten.
“We will not lose sight of the fact that Kazim Ali Junior, Rishi Nagassar, Yusuf Henry and Fyzal Kurban, lost their lives, that Christopher Boodram continues and remains scarred by the events that took place on the 25 of February last year,” Lynch said.
He said the relatives, friends and loved ones of the men will also be considered.
Lynch said the Commission will deliver its report to the President by April 30, but it will be a matter for the Government to decide when the Commission’s report will be made public.
He said he will do all in his power to ensure that a copy of the report is made public as soon as possible.
Lynch also made it clear that the Commission’s findings will be based on the facts that it had been presented with over the past two months.
“Whatever our ultimate findings, it will not be driven by rumour, superstition or emotion, it will have been driven by the evidence that we have heard and read,” Lynch said.
He also thanked the public for welcoming him to T&T and following the work of the Commission.
“All too often, I’ve been stopped in the street, people have come to me and said, can I have your photograph? It’s been slightly embarrassing from time to time but rewarding to think that the efforts that we, Mr Wilson and I, have put in, are appreciated by the public at large,” Lynch said.
