Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Dozens of res­i­dents of La Brea, who were af­fect­ed by an oil spill in De­cem­ber 2013, have suf­fered yet an­oth­er le­gal de­feat in their bid to sue the now-de­funct state oil com­pa­ny Petrotrin for neg­li­gence.

In a de­ci­sion late last month, three Law Lords from the Unit­ed King­dom-based Privy Coun­cil re­fused a spe­cial-pur­pose non-prof­it com­pa­ny rep­re­sent­ing 101 res­i­dents spe­cial leave to ap­peal con­sec­u­tive de­ci­sions by the lo­cal courts to block them from pur­su­ing a class ac­tion law­suit.

In a post on its web­site, the Privy Coun­cil said that the ap­peal did not raise a point of law of gen­er­al pub­lic im­por­tance.

The case re­lat­ed to an oil spill that took place in mid-De­cem­ber 2013.

Res­i­dents of the vil­lage woke up to a strong smell of gas in the air and found oil along a lo­cal beach.

The res­i­dents formed the La Brea En­vi­rons Pro­tec­tors (LBEP) sev­er­al months lat­er and sued Petrotrin and the Oc­cu­pa­tion­al Health and Safe­ty Agency (OSH Agency).

In their law­suit, the com­pa­ny claimed Petrotrin act­ed neg­li­gent­ly by us­ing the chem­i­cal Corex­it 9500 in its clean-up ac­tiv­i­ties.

The oil dis­per­sant has been banned by sev­er­al coun­tries since 1988.

They al­so con­tend­ed that Petrotrin hired some of them to clean beach­es with­out pro­vid­ing prop­er safe­ty equip­ment and that the OSH Agency failed to en­sure that Petrotrin com­plied with health and safe­ty leg­is­la­tion.

Petrotrin and the OSH Agency de­nied any wrong­do­ing as they claimed that they did not owe the com­pa­ny a du­ty of care.

In 2018, Jus­tice Ava­son Quin­lan-Williams dis­missed the com­pa­ny’s ap­pli­ca­tion to rep­re­sent its mem­bers but did not rule on the al­ter­nate ap­pli­ca­tion to sub­sti­tute some mem­bers to rep­re­sent the oth­ers.

The com­pa­ny’s ap­peal was sub­se­quent­ly dis­missed by Chief Jus­tice Ivor Archie and Ap­pel­late Judge Char­maine Pem­ber­ton in 2019.

The Court of Ap­peal’s de­ci­sion was up­held by the Privy Coun­cil.

In de­cid­ing that case, Lord David Kitchin stat­ed that the lo­cal courts had flex­i­bil­i­ty in their dis­cre­tion to al­low the case to pro­ceed, but came to the cor­rect con­clu­sion.

While he not­ed that the res­i­dents pos­si­bly had strong claims against Petrotrin and the agency based on the se­ri­ous­ness of the al­le­ga­tions in the law­suit, he stat­ed that the com­pa­ny they formed did not, as it did not ex­ist at the time of the oil spill.

“It is hard to dis­cern any co­her­ent case that Petrotrin or the OSH Agency owned any du­ty of care to LBEP, or that LBEP, as op­posed to its mem­bers, has suf­fered any loss or dam­age for which Petrotrin or the OSH Agency is re­spon­si­ble,” Lord Kitchin said.

Lord Kitchin re­fused to con­sid­er whether the res­i­dents could be sub­sti­tut­ed in place of the com­pa­ny to keep the case alive, as he di­rect­ed that such be done by the High Court.

While he stat­ed that “it would be hard not to feel con­sid­er­able sym­pa­thy” for the af­fect­ed res­i­dents, he not­ed that he and his col­leagues had not been pro­vid­ed with suf­fi­cient ev­i­dence that the mem­bers had agreed to be sub­sti­tut­ed af­ter be­ing ad­vised of the po­ten­tial con­se­quences.

He al­so point­ed out that the sub­sti­tu­tion ap­pli­ca­tion may not have been made with “rea­son­able promp­ti­tude”.

The sub­sti­tu­tion ap­pli­ca­tion was even­tu­al­ly dis­missed by both the High Court and Court of Ap­peal, lead­ing the group to pur­sue a sec­ond ap­peal be­fore the Privy Coun­cil.

Guardian Me­dia un­der­stands that the group’s lawyers are cur­rent­ly con­sid­er­ing their le­gal op­tions, which may be lim­it­ed based on the nu­mer­ous rul­ings and the lim­i­ta­tion pe­ri­od for ini­ti­at­ing lit­i­ga­tion.

The com­pa­ny was rep­re­sent­ed by El­ton Prescott and Farai Hove Ma­sai­sai, while Gilbert Pe­ter­son and Ami­rah Ra­haman rep­re­sent­ed Petrotrin.

Ravin­dra Nan­ga rep­re­sent­ed the OSH Agency.