Derek Achong

Lawyers rep­re­sent­ing now-de­funct BWIA In­ter­na­tion­al Air­ways have failed in yet an­oth­er bid to block a for­mer pi­lot from ob­tain­ing com­pen­sa­tion for an on-the-job in­jury he sus­tained 28 years ago. 

For­mer first of­fi­cer/flight en­gi­neer Tajo Be­har­ry suf­fered the in­jury to his eye af­ter hy­draulic flu­id sprayed in­to his face dur­ing an in­spec­tion of an air­craft be­fore a flight on March 7, 1994. 

Be­har­ry sued the com­pa­ny in 1998 but lost his case in 2003.

Three years lat­er, the Court of Ap­peal over­turned the de­ci­sion and or­dered that com­pen­sa­tion be as­sessed for Be­har­ry.
The State-owned com­pa­ny, which was shut down in 2006 and re­placed with Caribbean Air­lines, in­di­cat­ed that it want­ed to ap­peal to the Privy Coun­cil but even­tu­al­ly dis­con­tin­ued the move.

When as­sess­ment of dam­ages was even­tu­al­ly as­signed to High Court Robin Mo­hammed in 2019, the com­pa­ny’s lawyers chal­lenged the move claim­ing that it could not con­tin­ue as it was out­side the 12-year-old statu­to­ry pe­ri­od for en­forc­ing a judge­ment.

De­liv­er­ing a pre­lim­i­nary judg­ment in No­vem­ber 2020, Mo­hammed ruled that as nei­ther the tri­al judge nor the Court of Ap­peal as­sessed the dam­ages, there was a split in the case in terms of en­force­ment.
“There was sim­ply no judge­ment debt in favour of the plain­tiff in the in­stant mat­ter and there­fore no judge­ment to en­force,” Mo­hammed said.

In Jan­u­ary last year the com­pa­ny’s lawyers ap­plied for the as­sess­ment of dam­ages in Be­har­ry’s case to be struck out as it claimed that he (Be­har­ry) ne­glect­ed to pros­e­cute it for 12 years. It al­so sought to chal­lenge a move by Be­har­ry’s lawyers to file up­dat­ed med­ical re­ports for Jus­tice Mo­hammed’s con­sid­er­a­tion. 

In a writ­ten de­ci­sion de­liv­ered on Tues­day, Mo­hammed dis­missed the ap­pli­ca­tions as he ruled that the com­pa­ny’s lawyers failed to prove that the de­lay was in­ten­tion­al, in­or­di­nate and in­ex­cus­able. 

Mo­hammed ruled that while the com­pa­ny was en­ti­tled to make the ap­pli­ca­tion, it should have in­di­cat­ed so at an ear­li­er stage. 

He al­so stat­ed that even if there was in­or­di­nate de­lay, he had to still con­sid­er the pub­lic in­ter­est in al­low­ing the as­sess­ment to con­tin­ue. 

“The plain­tiff has been liv­ing with his in­juries for many years and to date have had no jus­tice. If I am to strike out his as­sess­ment of dam­ages, that leaves him with a bow with no ar­row, in oth­er words, a judge­ment but no jus­tice,” Mo­hammed said. 

He al­so de­nied the chal­lenge to the fresh med­ical re­ports. 

“I find it dif­fi­cult to de­ny the al­lowance of these up­dat­ed re­ports since should the Plain­tiff prove his case, this ev­i­dence would great­ly as­sist the court in ar­riv­ing at a just fig­ure for dam­ages,” he said. 

Be­har­ry is be­ing rep­re­sent­ed by Anand Ram­lo­gan, SC, Ganesh Sa­roop and Alvin Pariags­ingh while Ravin­dra Nan­ga and Alana Bisses­sar are rep­re­sent­ing the com­pa­ny.