A FORMER BWIA flight engineer's fight for compensation after an injury almost three decades ago has crept one step further after the judge hearing an assessment for damages allowed him to present updated medical reports.
Justice Robin Mohammed also dismissed yet another application by the airline to strike out Tajo Beharry’s assessment claim on the basis that he failed/refused/neglected to prosecute it for over 12 years and that this was an abuse of process.
Beharry, 67, sued the airline in 1998 after he was struck in the eye by a stream of hydraulic fuel from the hydraulic bay of flight BW981 on March 7, 1994.
In 2020, the judge dismissed a preliminary objection by BWIA that the assessment of damages was statute-barred. BWIA ceased operations on December 31, 2006.
In his decision, as he dismissed the airline’s attempt to have the claim struck out and allowed Beharry’s fresh evidence application, Mohammed said it was difficult to ignore that the matter was simply lost in the chaos of the old judicial system, “so much so, that no file existed in the Judiciary by the time the matter landed on my list.
“The delay was not solely the fault of the plaintiff,” the judge pointed out.
Mohammed inherited the case in 2019 when the Court of Appeal sent it back to the High Court for assessment of damages after the court found the airline liable for Beharry's injuries.
The judge said while Beharry could have done more to progress the matter, the court could not ignore the reality of the old rules system under which the case began.
“Regard must be had to the fact that under the old system, delays like these were the norm; matters went on for decades. This matter is unfortunately a remnant or remainder of that system.
“... I shudder to remember the delays in the old justice system, but taking all the circumstances of this case into account, I cannot find that the delay was inordinate or inexcusable, at least, not under what was the old system of civil justice.”
He also said the airline did not seek to have the matter dismissed before 2019, when the file was reconstituted and landed in his docket.
Mohammed pointed out that this problem of delay was unlikely to arise today because of new civil proceedings rules.
Beharry’s claim for compensation was initially dismissed in 2003, but he appealed. Three years later, the Court of Appeal, by majority decision, ruled in his favour and sent the issue of assessment of damages back to the trial judge.
Beharry is represented by Anand Ramlogan, SC, and Ganesh Saroop. The airline is represented by Ravindra Nanga and Alana Bissessar.
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