Officials of Paria Fuel Trading Company and Land and Marine Contracting Services (LMCS) have denied 15 charges under the Occupational Safety and Health (OSH) Act, related to an incident in 2022 which claimed the lives of four LMCS divers.
Paria general manager Mushtaq Mohammed, its terminal operations manager Collin Piper and LMCS director Kazim Ali Snr pleaded not guilty to the charges as they made their second court appearance before Senior Magistrate Alicia Chankar yesterday.
Magistrate Chankar read the set of charges that were brought against the trio and two companies by the Occupational Safety and Health Authority and Agency (OSHA), through its Chief Inspector Franz Brisbane, earlier this year.
Mohammed, who is facing four charges, is accused of facilitating a breach of the OSH Act by failing to prepare an emergency plan based on a risk assessment and by failing to ensure workers, including the four deceased divers and their colleague who survived, were not exposed to a safety risk.
Mohammed was called upon to enter pleas on behalf of the State-owned energy company, which is charged with four offences for failing to ensure the divers were not exposed to risk, for failing to implement an emergency plan based on a risk assessment, for failing to revise an emergency plan through consultation with worker representatives and for failing to conduct an annual assessment of the potential risks to employees of third- party contractors such as the divers.
Piper is accused of allegedly failing to ensure employees of third-party contractors were not exposed to health and safety risks.
Ali, whose son was among the deceased divers, was slapped with three charges - neglecting to ensure the health, safety and welfare of his employees, for failing to perform annual risk assessments and for neglecting to provide training, instructions and supervision to ensure the safety of his workers.
His company was charged with failing to perform a risk assessment, for failing to ensure its workers’ safety, and failing to provide them with proper training and supervision.
During the hearing, Gilbert Peterson, SC, accused OSHA of launching a “double-barrelled” attack on the parties, as he questioned why similar charges were filed before the Industrial Court. He suggested that the case before the magistrate should not proceed until the Privy Council weighs in on a landmark case over the laying of charges under the OSH Act.
In that case, a decision by the Court of Appeal over the time limit for bringing charges under the legislation is being challenged. The Appeal Court ruled that health and safety charges and criminal charges had to be filed six months after the conduct occurred, while civil claims can be brought within two years.
Peterson suggested the outcome of the appeal would directly affect the case against his clients.
“I cannot think of a greater abuse of process than this,” he said.
Peterson suggested that OSHA should not have waited until the outcome of the Commission of Enquiry into the diving tragedy before it took action.
“The limitation period is very alive,” Peterson said.
Responding to the submissions, OSHA lawyer Pamela Elder, SC, disagreed over the potential impact of the appeal. She said her client filed charges in both the Industrial Court and San Fernando Magistrates’ Court as it was seeking both “punishment” and “compensation” over the parties’ conduct.
Peterson agreed for the charges in relation to Mohammed, Piper and Paria to be joined. LMCS and Ali’s lawyer Dinesh Rambally agreed for the same to be done for his clients. There was no agreement on joining all 15 charges against the group.
Peterson and Rambally called on OSHA to disclose its evidence before they decide the issue which will affect whether the accused are eventually tried together.
“LMCS is seeking justice as well. Justice is due process. If you want justice, what could be wrong in sharing the information?” Rambally said.
Rambally also suggested that disclosure would assist with his clients’ defence. He pointed to section 89 of the legislation, which allows a person or entity facing charges to identify who they believe is the actual offender.
“From day one, we indicated, if you are the recipient of a complaint, you can make a complaint against whom you believe is the actual offender,” Rambally said.
“This is not a case where we are co-defendants and share a common interest.”
Rambally claimed he wrote OSHA to invoke the section but did not receive a response. He also agreed with Peterson on the potential effect of the pending Privy Council appeal.
On February 25, 2022, LMCS divers Christopher Boodram, Fyzal Kurban, Rishi Nagassar, Yusuf Henry and Kazim Ali Jr were sucked into the 30-inch diameter pipeline they were performing maintenance work 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 called a Commission of Enquiry due to public criticism.
In its report, the commission, chaired by King’s Counsel Jerome Lynch, presented several dozen recommendations, including charges under the OSH Act.
The commission also recommended that Director of Public Prosecutions (DPP) Roger Gaspard, SC, consider prosecuting Paria for gross negligence manslaughter.
In July, DPP Gaspard wrote to Police Commissioner Erla Harewood-Christopher for the initiation of an investigation to determine whether there was sufficient evidence to prosecute any person or entity.
Around the same time, Paria issued a release claiming LMCS and the legal representatives of the victims’ families were frustrating its attempts to settle compensation claims.
Attorney Prakash Ramadhar, who is representing the Kurban and Henry families, denied the claims as he called on Paria to pay each of the men’s families $5 million in compensation.
Last week, LMCS’ legal team wrote to Ramadhar, who is representing Naggasar’s family and Boodram, suggesting that they should direct their legal action to Paria.
LMCS’ lawyers dismissed any imputation of culpability attached to it by the commission and claimed Paria should be held solely liable for what transpired. They suggested that even if their clients were partially responsible for the initial accident as alleged, Paria’s handling of the response absolved it.
LMCS did admit 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 it pursued litigation over the issue, after it made a claim shortly after the incident but did not receive a response.
