Derek Achong

The fam­i­ly of an oil work­er, who died af­ter sus­tain­ing se­ri­ous in­juries in an on-the-job ac­ci­dent in 2012, has scored a ma­jor vic­to­ry in their bid for in­creased com­pen­sa­tion.

De­liv­er­ing a judg­ment late last week, Ap­pel­late Judges Prakash Moo­sai, Mark Mo­hammed, and Maria Wil­son up­held an ap­peal pur­sued by the fam­i­ly of Asim Arthur against Well Ser­vices Pe­tro­le­um Com­pa­ny Lim­it­ed and Trin­i­ty Ex­plo­ration and Pro­duc­tion PLC.

In the ap­peal, at­tor­neys Chanka Per­sads­ingh and Ted Roop­nar­ine, who rep­re­sent­ed Arthur's fam­i­ly, claimed that a High Court Mas­ter was wrong to have de­duct­ed a $939,006 fine, paid by the com­pa­nies for breach­es of the Oc­cu­pa­tion­al Safe­ty and Health Act (OS­HA), from the com­pen­sa­tion she as­sessed for the fam­i­ly.

Jus­tice Moo­sai found that the Mas­ter was wrong to have tak­en the de­ci­sion on the ba­sis that the fine was in­tend­ed to be used to ben­e­fit Arthur's fam­i­ly.

"The Court should dis­tin­guish be­tween a com­pen­sato­ry pay­ment in­tend­ed to make good the same eco­nom­ic loss and a statu­to­ry penal­ty im­posed to pun­ish and de­ter a breach of the oc­cu­pa­tion­al safe­ty oblig­a­tions," Jus­tice Moo­sai said.

While he not­ed that com­pen­sa­tion paid to Arthur's fam­i­ly un­der the Work­men's Com­pen­sa­tion Act could have been de­duct­ed to pre­vent dou­ble re­cov­ery, he said that such could not ap­ply to the fine.

"The lat­ter should not au­to­mat­i­cal­ly be treat­ed as a cred­it against civ­il dam­ages mere­ly be­cause the Court has di­rect­ed that the penal­ty ben­e­fit the vic­tim or es­tate," Jus­tice Moo­sai said.

The out­come means that Arthur's fam­i­ly will now re­ceive the com­pen­sa­tion that was with­held un­less the com­pa­nies suc­cess­ful­ly pur­sue a fi­nal chal­lenge be­fore the Unit­ed King­dom-based Privy Coun­cil.

Arthur, 24, was em­ployed as a floor man by Well Ser­vices and was work­ing on Trin­i­ty's op­er­a­tion in Ran­cho Que­ma­do, Erin, when the in­ci­dent oc­curred on Au­gust 3, 2012.

A trainee di­rec­tion­al driller was left to over­see the op­er­a­tions, in­clud­ing the ori­en­teer­ing of the drilling tool.

A loose drill bit struck Arthur and pinned him against a tong ca­ble. Arthur's pelvic area was crushed and his gen­i­talia was sev­ered.

Arthur was tak­en to hos­pi­tal but died the fol­low­ing day.

His moth­er and his com­mon-law wife pur­sued a neg­li­gence claim against the com­pa­ny on be­half of his two chil­dren.

The com­pa­nies ac­cept­ed li­a­bil­i­ty in 2017 and the Mas­ter was tasked with as­sess­ing the ap­pro­pri­ate com­pen­sa­tion.

The Oc­cu­pa­tion­al Safe­ty and Health Agency (OSH Agency) brought pro­ceed­ings in the In­dus­tri­al Court against the com­pa­nies. The pro­ceed­ings were up­held and the com­pa­nies were fined, with the court di­rect­ing that the fine ben­e­fit Arthur's fam­i­ly.

The fine was cal­cu­lat­ed us­ing Arthur's salary for three years.

In March 2021, Mas­ter Martha Alexan­der or­dered $25,000 for loss of ex­pec­ta­tion of life, $1,415,360.23 for loss of po­ten­tial earn­ings, and $15,000 in nom­i­nal dam­ages for pain and suf­fer­ing.

How­ev­er, Mas­ter Alexan­der de­duct­ed the fine and the sum the fam­i­ly re­ceived un­der work­men's com­pen­sa­tion from the loss of po­ten­tial earn­ings, re­sult­ing in a bal­ance of $6,851.23.

Jus­tice Moo­sai found that the de­ci­sion of the In­dus­tri­al Court to di­rect that the fine be used to as­sist the fam­i­ly did not al­ter its na­ture as a pun­ish­ment.

"It (In­dus­tri­al Court) de­ter­mined the re­cip­i­ent of the fine but did not nec­es­sar­i­ly trans­form the fine in­to com­pen­sa­tion for lost earn­ings," Jus­tice Moo­sai said.

Arthur's fam­i­ly was al­so rep­re­sent­ed by Ke­ly-Jo Sir­ju. The com­pa­nies were rep­re­sent­ed by Kirk Ben­gochea, Ke­ston Mc­Quilkin, and Shari Fitz­patrick.