Senior Reporter
derek.achong@guardian.co.tt
Parallel prosecutions by the Occupational Safety and Health Authority (OSH Authority) in relation to a diving tragedy at Paria Fuel Trading Company’s Pointe-a-Pierre facility in 2022, which claimed the lives of four divers, may now be in limbo.
Delivering a landmark judgment on Tuesday, five Law Lords of the United Kingdom-based Privy Council determined an appeal in which it was asked to rule on the time limit for the authority to initiate prosecutions under the Occupational Safety and Health Act (OSH Act).
The board held that prosecutions before the Industrial Court and magistrates must be filed within six months of an alleged breach coming to the authority’s attention. Its judgment on the issue was consistent with the findings of the local Court of Appeal.
Lady Ingrid Simler, who wrote the board’s judgment, said: “No ambiguity arises and the question of settled practice also does not arise in these circumstances.”
“The board recognises the consequences of this decision as described by the authority but, as the authority accepts, there is no scope for any principle of settled practice to operate,” she added.
The outcome of the appeal will have a direct effect on the authority’s pending prosecutions against Paria Fuel, two of its officials, diving company Land and Marine Contracting Services Limited (LMCS) and its director Kazim Ali Snr, as the charges against them were filed outside the limitation period determined by the country’s highest appellate court.
The issue, which was acknowledged by the authority when it first filed the charges, will have to be addressed when the cases come up for hearing before a magistrate on October 9 and the Industrial Court later this year.
The appeal determined by the Privy Council was between the authority and the University of the West Indies (UWI). It related to a complaint made by the authority over UWI’s alleged delay in informing it of an incident in which an employee was injured by a cow in March 2016.
After the complaint was filed before the Industrial Court in November 2017, UWI objected as he referred to section 93 of the Occupational Health and Safety Act (OSHA), which requires a complaint to be filed within six months of the issue coming to the attention of the authority.
The authority pointed to Section 97(B) of the legislation, which states that all proceedings under it (the act) should be initiated no more than two years after the cause of action arose.
The Industrial Court upheld the authority’s position, as it ruled that the two-year time limit applied to prosecutions before it and the six-month limit only applied to similar but separate health and safety offences pursued before magistrates.
UWI appealed the decision and succeeded before the Court of Appeal.
However, the Appeal Court reversed the decision, as it found that the six-month limit applied to prosecutions before magistrates and the Industrial Court. It also ruled that the two-year limit only applied to civil lawsuits brought under the legislation.
On February 25, 2022, LMCS divers Christopher Boodram, Fyzal Kurban, Rishi Nagassar, Yusuf Henry, and Ali’s son Kazim Jr were sucked into a 30-inch-diameter pipeline they were performing maintenance work on at Paria’s Pointe-a-Pierre facility.
All were seriously injured but Boodram managed to make his way to the entrance of the pipeline and was rescued. LMCS officials were blocked from attempting to rescue their colleagues.
Three of the divers’ bodies were recovered on February 28, while Nagassar’s was recovered the following day.
Cabinet initially appointed a five-member team to investigate the incident but eventually appointed a Commission of Enquiry (CoE) due to public criticism.
In its report released in January last year, the commission, chaired by King’s Counsel Jerome Lynch, presented several dozen recommendations, including charges under the OSH Act.
The charges were eventually laid against Paria, LMCS, Paria’s general manager Mushtaq Mohammed, its terminal operations manager Collin Piper, LMCS director Kazim Ali Snr, both before the Industrial Court and a magistrate.
The companies and individuals pleaded not guilty to the charges before a magistrate in September last year. Last year, LMCS’ legal team, led by attorney Dinesh Rambally, wrote to lawyers for Boodram and his deceased colleagues’ families, suggesting they should direct their legal action to Paria.
LMCS’ lawyers dismissed any imputation of culpability attached to it by the commission and claimed that Paria should be held solely liable for what transpired. LMCS did admit that they owe their workers’ families and Boodram compensation under the Workmen’s Compensation Act but claimed payments could not be made until its claim to its insurer is determined. The company claimed that it pursued litigation over the issue after it made a claim shortly after the incident but did not receive a response.
In October last year, Boodram and Nagassar’s family filed negligence lawsuits against Paria and LMCS.
Kurban and Henry’s families were expected to do the same.
In early April, former prime minister Stuart Young announced that the Cabinet had decided to make a one-time ex-gratia payment of $1 million each to Boodram and his colleagues’ families without admitting liability.
He claimed the delay in the settlement of the cases was due to insurers for LMCS and Paria disagreeing on which company was liable.
While speaking to reporters at the swearing-in ceremony for her Cabinet in May, Prime Minister Kamla Persad-Bissessar and Attorney General John Jeremie were asked about the payments.
Jeremie said he would have to enquire whether the payments had already been made and assured the commitment would be honoured. Persad-Bissessar also suggested that judicial assistance may be required to help settle the cases, which may be more complicated than initially anticipated.
Earlier this month, Paria’s new chair, Nyree Alfonso, confirmed that the ex-gratia payment was never made.
The authority was represented by Robert Strang, and Pettal John-Beerens, while David Alexander and Dave de Peiza represented UWI.
