A Mt Hope labourer who lost a thumb on a job site in 2016 will not be allowed to pursue his claim for compensation from his former boss.

Justice Frank Seepersad dismissed Ernest Smith’s application for more time to file a claim against Lindon De Rocke and Lone Star Construction on April 16.

In an oral ruling, Seepersad said while the Limitation of Certain Acts Act gave the court the power to extend the time, Smith’s explanation of why five years had elapsed was “untenable and unreasonable.”

The act sets out a limitation period of four years from the date of the accrual of the action.

Smith’s application said after the incident, he sought legal advice and was told he should give his former employer time to get a response from its insurers for compensation. It also said he did not receive national insurance benefits, since he did not sign NIS documents.

He said that based on the advice he received from his attorney, he was assured the company was waiting for a response from its insurers and in 2017-2021, he kept making inquiries.

In March 2021, a pre-action protocol letter was sent, but he was told his claim would be statute-barred.

He again tried to contact his former boss, in the hope that there would be a settlement without going to court.

In his ruling, Seepersad said Smith failed to act promptly and reasonably and there were no justifiable circumstances for the court to extend the time for him to file his claim.

“Judicial discretion is not to be exercised whimsically.”

While he said he empathised with Smith, the law sets a limitation period so that matters can be prosecuted promptly.

He also chided Smith’s former employer for not ensuring he was compensated.

“The defendant should have operated with empathy.”

Because Smith said he was unemployed, the judge made no orders for him to pay the company’s costs.

In his application, Smith said he and another employee were assigned to offload cement from a three-tonne truck driven by De Rocke, another of Lone Star’s employees, at the Shops of Arima.

While he was on the tray of the truck, he said, he felt it move forward and his thumb became stuck between a pillar and the truck’s tray.

He shouted out to the driver to stop, but it did not and his arm was trapped. He lost his upper left thumb, which had to be amputated.

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