LONDON, CMC – The UK-based Privy Council has reserved its judgment on a final appeal in the tragic 2022 Paria diving incident, which claimed the lives of four divers.
The five law lords concluded their hearing on Wednesday, with their decision now keenly awaited, as it will define the Occupational Health and Safety Authority and Agency (OSH Authority)’s window to initiate health and safety offense prosecutions.
The incident saw Land and Marine Contracting Services Limited (LMCS) divers Fyzal Kurban, Rishi Nagassar, Yusuf Henry, and Kazim Ali Jr. sucked into a 30-inch diameter pipeline during maintenance work at Paria’s Pointe-a-Pierre facility.
Christopher Boodram, though seriously injured, managed to escape. A subsequent Commission of Enquiry (CoE), whose report was released last January, presented dozens of recommendations, including charges under the OSH Act.
These charges were eventually laid against Paria, LMCS, and key individuals – Paria’s general manager Mushtaq Mohammed, its terminal operations manager Collin Piper, and LMCS director Kazim Ali Snr – with proceedings initiated before both the Industrial Court and a Magistrate’s Court.
The charges were filed more than two years after the incident, and when they appeared in Court last September, the companies and individuals pleaded not guilty to the charges.
The pivotal legal question now before the Privy Council stems from a separate case involving the OSH Authority and the University of the West Indies (UWI). This appeal relates to a complaint filed by the Authority concerning UWI’s alleged delay in reporting an incident where a cow injured an employee in March 2016.
The core of the legal debate revolves around two sections of the Occupational Health and Safety Act (OSHA). UWI objected to the complaint, citing Section 93, which mandates that a complaint be filed within six months of the issue coming to the Authority’s attention. Conversely, the OSH Authority pointed to Section 97(B), which states that all proceedings under the Act must be initiated within two years of the cause of action arising.
The Industrial Court initially sided with the OSH Authority, ruling that the two-year limit applied to prosecutions before it. In contrast, the six-month limit was confined to similar but separate health and safety offenses pursued before magistrates.
However, UWI successfully appealed this decision to the Court of Appeal. The Appeal Court reversed the Industrial Court’s ruling, concluding that the six-month limit applied to prosecutions before both Magistrates and the Industrial Court and that the two-year limit was only relevant for civil lawsuits under the legislation.
Attorney Robert Strang, representing the OSH Authority before the Privy Council on Wednesday, underscored the profound impact of this differing interpretation on his client’s operations.
“The authority scheduled its investigations and prosecutions based on the two-year limit,” Strang told the Lords, urging them to affirm the Industrial Court’s broader interpretation.
In response, UWI’s attorney, David Alexander, defended the Appeal Court’s ruling, asserting its thoroughness and adherence to the plain meaning of the legislative provisions.
“There should be no difficulty with words in those provisions… The plain meaning of the words is clear,” Alexander argued, noting that the six-month time limit aligns with that set under the Summary Courts Act for summary prosecutions.
The outcome of this appeal will directly determine the OSH Authority’s capacity to pursue several high-profile cases, including the Paria tragedy prosecutions. It will redefine the framework for health and safety enforcement in the country.
Beyond the OSH Act charges, the Paria tragedy has spawned other legal actions. Christopher Boodram and Rishi Nagassar’s family filed negligence lawsuits against both Paria and LMCS last October, with different families expected to follow suit. While LMCS has admitted a compensation obligation under the Workmen’s Compensation Act, it points to a dispute with its insurer. It claims Paria should bear sole liability for the incident’s handling.
In early April, former Prime Minister Stuart Young announced the Cabinet’s decision to make ex gratia payments of TT$1 million each to Boodram and the families of the deceased divers without admitting liability. This week, Prime Minister Kamla Persad-Bissessar and Attorney General John Jeremie, SC, when questioned about the payments, stated that the commitment would be honored.
Persad-Bissessar, on the other hand, suggested that judicial assistance might be necessary to resolve such complex cases.
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