Senior Reporter
derek.achong@guardian.co.tt
A construction worker, who lost a piece of his thumb in a work-related accident, has been blocked from seeking compensation from his former employer due to his delay in filing the lawsuit.
Delivering an oral decision yesterday morning, High Court Judge Frank Seepersad rejected an application from Ernest Smith to retroactively extend the time for filing the case against Lone Star Construction Limited and his former co-worker Lindon De Rocke.
According to the evidence in the case, the accident occurred on April 26, 2016, while Smith, of Mt Hope, and another co-worker were offloading cement from a company vehicle driven by De Rocke at a shopping mall in Arima.
Smith and his co-worker reportedly stopped work to allow De Rocke to move the vehicle under a shed.
He claimed that when they resumed work they noticed the vehicle moving forward.
Smith claimed that he attempted to get off the tray of the vehicle but the thumb of his left hand was caught between the vehicle and a concrete post for the shed. The upper portion of his thumb was amputated.
In his lawsuit, Smith claimed that the company was negligent in failing to provide a safe workplace.
Through the lawsuit, Smith was seeking compensation for his injury as well as for loss of earnings as he claimed that he was unable to work as a mason after recovering.
Smith had to make the application as his lawyers only sent a pre-action protocol letter threatening the lawsuit in 2021 and eventually filed the case last year.
Explaining the delay, Smith claimed that he sought legal advice from another lawyer shortly after the accident and was told to not rush to file the case. He also claimed that the company said that it was seeking compensation for him from its insurance company and he agreed to give them time to process their claim.
“The prejudice against the Claimant if he is precluded from filing his claim outweighs the potential prejudice against the Second Defendant caused by his delay, which is minimal,” his lawyers said in the application.
In considering the application, Justice Seepersad noted that under the Limitation of Certain Actions Act, Smith had four years from the date of the accident to pursue the personal injury claim.
He noted that although the deadline was extended during the COVID-19 pandemic, Smith’s lawsuit still fell outside the deadline.
Justice Seepersad also noted that Smith could not use his injury as an excuse and it did not incapacitate or prevent him from meeting the deadline.
While he noted that Smith appeared to have a valid claim against the company, Justice Seepersad noted that he could not exercise his discretion as the other excuses suggested were unreasonable.
Despite his decision on the application, which meant that Smith’s case was automatically dismissed, Justice Seepersad did not order him to pay the company’s legal costs based on what transpired.
Smith was represented by Lemuel Murphy and Keishel Grant. The company and De Rocke were represented by Krystal Richardson-Dumitriu.