Appeal filed in 22-year-old lawsuit against BWIA

AN appeal has been filed in a 22-year-old lawsuit between a former flight engineer and BWIA International Airways after a High Court judge dismissed a preliminary objection on the issue that an assessment of damages was statute-barred.

Justice Robin Mohammed gave the order overruling the airline’s objection of limitation and adjourned the hearing of the assessment of damages for Tajo Beharry to December 2.

When the matter was called virtually, the judge was told the airline has since filed an appeal over his ruling on the preliminary objection.

Beharry sued the airline in 1998 claiming he was struck in the eye by a stream of hydraulic fuel from the hydraulic bay of flight BW981 on March 7, 1994.

His claim for compensation was initially dismissed in 2003, but he appealed. Three years later, the Court of Appeal, by majority decision, entered judgment in his favour and sent the issue of assessment of damages back to the trial judge to consider.

Mohammed said he inherited the matter in 2019 and after the original file could not be found, he ordered a new file to be reconstituted. The airline raised the preliminary point that the assessment was now statute-barred, and it was put on hold pending the judge’s ruling on the preliminary point raised.

The airline argued that Beharry took no steps to ask for the matter to be relisted for hearing between November 2006, when the Appeal Court ruled, and 2013. It was argued that when the case came up for hearing on July 26, 2013, it was because the airline wrote to the court asking for a status hearing because of Beharry’s inaction in prosecuting his own matter.

The airline argued that by November 7, 2018, 12 years would have passed since the Appeal Court ruled and Beharry took no steps to proceed with the assessment. It argued that under the Limitation of Personal Actions Ordinance Chapter 5 No 6, a party has 12 years to bring any proceedings pursuant to a judgement, and Beharry failed to do so in time.

Beharry’s attorneys argued that since there no damages had been assessed, there was no judgment to enforce, so the ordinance was not applicable.

In his decision, Mohammed held that there was no money judgment or judgment debt and the only decision at the time was of liability, so “until an assessment is completed, there is no quantifiable judgment in favour of the plaintiff.”

He said the court could not usurp the function of the legislature to set rules on when the statutory limit was to begin, but simply interpret the law.

It was also argued that since the cause of action arose before 1994, and the Limitation of Certain Acts Act did not come into effect until 1997, the relevant legislation the court had to look at was the ordinance.

He held that up to the point of the assessment, Beharry would have had no way to enforce any order for damages until the money judgment was quantified.

“The point of an assessment of damages is to assess the financial entitlement to the successful party. If this is not done, there is no 'action, suit or proceeding' to be brought to ‘recover any sum of money’ pursuant to section 3 of the ordinance. The question of whether the assessment of damages is time barred, cannot be dealt with without looking at the question of enforcement,” he ruled.

“There simply was no judgment debt in favour of the plaintiff in the instant matter and therefore no judgment to enforce,” he said, although he agreed Beharry should have taken a more active role.

With an appeal having been filed, the assessment of damages has again been stalled until that is determined.

Beharry is represented by Anand Ramlogan, SC, Alvin Pariagsingh and Ganesh Saroop. The airline is represented by attorneys Ravindra Nanga and Alana Bissessar.