LMCS lawyers: Divers’ families should sue Paria for negligence
Senior Reporter
derek.achong@guardian.co.tt
The families of the four victims and one survivor of the diving tragedy at Paria Fuel Trading Company Limited’s Pointe-a-Pierre facility have been advised to direct their negligence lawsuit to the State-owned energy company.
Lawyers representing the divers’ employer, Land and Marine Contracting Services Limited (LMCS), which was contracted by Paria to do repairs on a pipeline when the incident occurred in February 2022, made the claim in a letter sent to the attorneys for the victims’ families and survivor Christopher Boodram on Wednesday.
In the correspondence, LMCS’s lawyers Dinesh Rambally and Kamini Persaud-Maraj claimed that Paria should be held solely liable for the incident despite the findings of the Commission of Enquiry (CoE) into the incident.
Persaud-Maraj said: “For the removal of doubt, our client refutes any imputation of culpability attached to it by the Commission of Enquiry (CoE), denies liability as alleged or reported by the CoE or otherwise against it and relies on Paria’s failure to fulfil its non-delegable duties to the safety of LMCS Ltd and its employees resulting in accident and sufferable deaths and injury of the survivor.
“Our client has been advised that any appointment of civil liability is for the court’s determination and not the CoE.”
Despite its position, LMCS admitted that it is responsible for compensating its workers’ families and Boodram under the Workmen’s Compensation Act. However, the company claimed it was forced to bring action in relation to its insurer Trinre Ltd, after it failed to respond to its claims filed a month after the incident.
“Despite all claims and calculations being submitted for payment both Trinre Ltd and/or its agent have gone completely silent,” Persaud-Maraj said.
“LMCS is therefore not responsible in any way for the delayed compensation to the estates and injured parties.”
Responding to negligence claims made against LMCS and Paria by the victims’ families and Boodram, Persaud-Maraj sought to make additional allegations about Paria’s role in what transpired.
She claimed that before engaging the divers to perform the work, Paria failed to inspect the pipeline on the seabed. She also alleged that Paria changed the methodology of the work LMCS was initially contracted to perform without reassessing the associated risks.
“Paria failed to afford any opportunity to LMCS to assess the risks associated with such change in particular the creation of a latent hazardous differential pressure condition.
“Paria’s (not LMCS’s) action was the base reason for the root cause of the accident,” she said.
Persaud-Maraj suggested that even if her clients were partially responsible for the initial accident as alleged, Paria’s handling of the response absolved it.
“Further and alternatively Paria’s prohibition against LMCS carrying out any rescue operations whatsoever to rescue and/or save the lives of the four workers (who died) was not foreseeable by LMCS and constituted a novus actus interveniens which broke the chain of causation in relation to their deaths,” she said.
Persaud-Maraj also sought to challenge claims made by Paria in July that LMCS was frustrating its efforts to compensate the victims’s families and Boodram and avoid litigation.
“LMCS is therefore being used by Paria as a scapegoat to unscrupulously delay compensation and further aggravate and punish the deceased workers’ estates and the sole survivor in that regard,” Persaud-Maraj said.
“We also hold the strong view that morally, legally and on the simple premise that Paria is a State-owned-operated entity which ought to lead corporate citizens by example, Paria ought to have accepted liability and acted expeditiously (whether prior to or subsequent to the Report of the CoE) to ensure that your Client’s claims were duly considered and settled.”
Dealing with LMCS’s obligations under the Workmen’s Compensation Act, Persaud-Maraj noted that her client could not make payments with its claim to its insurers still pending.
“LMCS, despite its anxiety that the calculable payments be made, is prohibited under the policy from making any payments on its own,” she said.
Under the provisions of the legislation, dependents of deceased workers receive three years’ salary if they were wholly dependent on their relative’s earnings before their death.
If dependents are only partially reliant on their deceased relative’s earnings they would only receive a portion. Deceased workers with no dependents would only receive a maximum of $500 towards their funeral expenses. Surviving but injured workers receive varying compensation based on their degree of disability after being injured.
Persaud-Maraj said the compensation owed to its deceased workers’ families and Boodram was clearly and precisely calculable under the legislation.
She noted that LMCS has initiated action to facilitate the payments.
“Workmen’s Compensation proceedings have since commenced and since Paria is the party wholly responsible for the accident LMCS is entitled to defend accordingly and pursuant to the Workmen’s Compensation Act to join Paria in those proceedings for the Commissioner to determine liability,” Persaud-Maraj said.
She also accused Paria of engaging in “deceptive” tactics.
“Paria from inception is bent on misleading and conveniently manipulating the facts at every opportunity,” she said.
She noted that Paria sought to cancel its contract with LMCS after a Safety and Health Inspector of the Occupational Safety and Health (OSH) Act issued a prohibition notice blocking Paria from continuing sub-sea works until the existing danger was removed.
Persaud-Maraj noted that Paria relied on a “force majeure” clause in the contract, which allowed for cancellation in circumstances where performance could not be completed due to a foreseeable factor outside the control of the parties, including natural disasters or terrorism.
“The accident was caused by the gross negligence of Paria and was not an event that the contracting parties agreed could occur but whose timing and impact they cannot control. Force Majeure was therefore inapplicable to this matter,” she said.
Persaud-Maraj claimed Paria was obligated to indemnify LMCS against the proposed legal action based on its alleged role and contractual obligations.
On February 25, 2022, LMCS divers Christopher Boodram, Fyzal Kurban, Rishi Nagassar, Yusuf Henry, and Kazim Ali Jr, who was the son of the company’s owner Kazim Ali Snr, were sucked into the 30-inch-diameter pipeline they were performing maintenance work on.
Boodram managed to make his way to the entrance of the pipeline and was rescued. Three of the divers’ bodies were recovered on February 28, while Nagassar’s was recovered the following day.
Cabinet initially appointed a five-member team to investigate the incident but eventually appointed a CoE due to public criticism.
In its report, the commission, chaired by King’s Counsel Jerome Lynch, recommended that Director of Public Prosecutions (DPP) Roger Gaspard, SC, consider prosecuting Paria for gross negligence manslaughter.
The commission also recommended charges against officials of Paria and LMCS under the OSH Act.
OSH Authority and Agency Chief Inspector Franz Brisbane eventually laid charges against Paria, its general manager Mushtaq Mohammed, its operations manager Colin Piper, LMCS and Kazim Ali Snr.
In July, DPP Gaspard wrote to Police Commissioner Erla Harewood-Christopher for the initiation of 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.
Attorney Prakash Ramadhar, who is representing Kurban and Henry’s families, denied the claims as he called on Paria to pay each of the men’s families $5 million in compensation.
Nagassar’s family and Boodram are being represented by Freedom Law Chambers led by Senior Counsel Anand Ramlogan.
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