Senior Reporter
derek.achong@guardian.co.tt
Almost three years after a major diving tragedy at Paria Fuel Trading Company’s Pointe-a-Pierre facility, lawyers for survivor Christopher Boodram and relatives of Rishi Nagassar have filed negligence lawsuits against the State-owned energy company and their former employer, Paria and Land and Marine Contracting Services Limited (LMCS).
On October 14, a team of attorneys from Freedom Law Chambers led by Senior Counsel Anand Ramlogan, filed the cases over what transpired in February 2022. They identified 29 grounds on which they claimed Paria’s negligence led to the fatal incident and also raised 25 grounds in relation to LMCS as their employer.
They are seeking significant compensation for Nagassar’s death and Boodram’s long-lasting physical and mental injuries, which will be largely based on what they endured in the incident and their lack of earnings since then.
Contacted yesterday, attorney Prakash Ramdhar, who is leading the legal team for the families of two of the other divers, Fyzal Kurban and Yusuf Henry, said similar cases will be soon filed.
He said he attempted to settle the cases with Paria and avoid litigation but discussions with the company proved futile.
“They took a decision that they were not going to be reasonable and fair in all of the circumstances so we were left with no choice but to proceed to file actions,” Ramadhar said.
In their statement of case, the lawyers gave a synopsis of the incident as recounted by Boodram.
On February 25, 2022, Boodram, Nagassar, Henry, Kurban, and Kazim Ali Junior, whose father is a director of LMCS, were doing maintenance work on an underwater offshore pipeline off Berth #6 on Paria’s compound when the incident occurred.
They said the group were performing work following the scope of works issued by Paria and the project execution plan developed by LMCS when the hyperbaric chamber flooded and they were sucked in.
Although the men were injured, they managed to find each other in an air pocket. When the men reached the end of the air pocket, Boodram went ahead through a mixture of crude oil and water and met a chain block hanging near the end of the pipe.
They claimed that just as Boodram was about to give up hope, he heard a response from someone outside. He was eventually pulled out of the pipe by his colleague Ronald Ramoutar, who he later learned had been warned by Paria officials against intervening.
Before being taken to the San Fernando General Hospital, Boodram reportedly told officials of the condition of his colleagues and pleaded with them to rescue them. The men were not rescued and their bodies were recovered days later.
Summarising the negligence claims against the companies, the lawyers claimed they failed to identify the potential hazards associated with the job and implement measures to ensure an effective emergency response.
The lawyers alleged that Paria failed to ensure that LMCS had proper health and safety equipment for their staff and could safely and competently complete the job. They further claimed that Paria and LMCS failed to properly clear the pipeline before the divers were allowed to commence work.
“Failure, in all circumstances, to adhere to industry safety standards by taking steps to ensure the safety of the Claimant and other workers,” they said.
They also criticised Paria for preventing a rescue operation and quoted some of the findings of the Commission of Enquiry (CoE) appointed by the government to probe the incident following public furore over the tragedy.
O the loss and damage suffered by Boodram, his lawyers claimed he still suffers mental anguish and “continues to be haunted by the memories of his friends’ suffering and the inability to help them despite promising them that he will get assistance.”
They said he has been unable to return to work as he suffers from post-traumatic stress disorder (PTSD).
“The haunting memories of the incident, coupled with the ongoing emotional distress, make it challenging for him to concentrate, engage with colleagues, or function effectively in a work environment at present, and for the foreseeable future,” they said.
They claimed that Boodram has suffered from neuropsychiatric disorders, including amnesia, since the incident.
“He frequently misplaces items and forgets his scheduled medical appointments for example,” they said, adding that he also suffers from linguistic difficulties.
“He relives the nightmare on a daily basis and is unable to get a good night’s sleep.”
They claimed that he lost out on more than $400,000 in income since the incident as he previously worked on a freelance basis with other dive companies and as a fisherman in his free time.
Boodram’s lawyers also claimed that he will require weekly therapeutic support for the next decade and the medical bills will be approximately $312,000.
Nagassar’s lawyers are claiming compensation for the pain and suffering he endured, $25,000 for loss of expectation of life and loss of earnings for the 46-year-old based on the $9,800 monthly salary he received from LMCS as well as private work.
They are also seeking $53,350, which represents the money expended by his family for his funeral.
Nagassar was the sole breadwinner in his family and his lawyers are claiming compensation for his common-law wife and five-year-old daughter estimated at an annual rate of $85,000 until he would have retired.
The duo is also being represented by Kent Samlal, Robert Abdool-Mitchell, Sue Ann Deosaran, and Natasha Bisram.
After the tragedy, the Cabinet initially appointed a five-member team to investigate but the move was scrapped due to public criticism and a CoE was appointed.
In its report, the commission chaired by King’s Counsel Jerome Lynch presented several dozen recommendations, including occupational safety and health charges.
It 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 to initiate an investigation to determine whether there was sufficient evidence to prosecute any person or entity.
Around the same time, Paria issued a release claiming that the LMCS and the legal representatives of the victims’ families were frustrating its attempts to settle compensation claims.
Ramadhar denied the claims and called on Paria to pay each of the men’s families $5 million in compensation.
Last month, LMCS’s legal team wrote to Ramadhar and Ramlogan suggesting they direct their legal action to Paria and not their client. The company’s 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.
After being served with pre-action protocol letters threatening the lawsuits, Paria reportedly claimed that only LMCS should be held liable.
LMCS did admit that they owed 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 was determined.
The company claimed it pursued litigation when it made a claim shortly after the incident but did not receive a response.
Earlier this year, the Occupational Safety and Health Authority and Agency (OSHA) brought 15 charges against the companies, Paria’s general manager Mushtaq Mohammed, its terminal operations manager Collin Piper and LMCS director Kazim Ali Snr.
Mohammed is facing four charges for facilitating a breach of the OSH Act by failing to prepare an emergency plan based on a risk assessment and by failing to ensure the divers were not exposed to a safety risk.
Paria is charged with four offences for failing to ensure that the divers were not exposed to risk, for failing to implement an emergency plan based on a risk assessment, for failing to revise the emergency plan through consultation with worker representatives and 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 that employees of the third-party contractors were not exposed to health and safety risks.
Ali is facing three charges for neglecting to ensure the health, safety and welfare of his employees, failing to perform annual risk assessments and neglecting to provide training, instructions and supervision to ensure the safety of the workers.
His company was charged with failing to perform a risk assessment, failing to ensure its workers’ safety, and failing to provide them with proper training and supervision.
The three officials and the two companies denied any wrongdoing when they reappeared in court last month.
The outcome of the charges might be affected by a landmark case over the laying of charges under the OSH Act which is currently being considered by the United Kingdom-based Privy Council.
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 could be brought within two years.