REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No.: CV2010-04153

BETWEEN

AARON JAIRAM
Claimant

AND

TRINCAN OIL LIMITED

First Defendant

VINCENT RAMPERSAD & SONS LIMITED

Second Defendant

DRILLING INTERNATIONAL SERVICES AND SUPPLIES LIMITED

Third Defendant

CV2008-047811
BETWEEN

VINCENT RAMPERSAD & SONS LIMITED

Claimant
AND

TRINCAN OIL LIMITED

Defendant

1
For convenience this judgment is intituled by making reference to these two High Court proceedings. No order for
th
consolidation of these proceedings was made however by case management order dated 19 October 2012 both
CV2010-04153 and the counterclaim in CV2008-04781 were ordered to be heard together.

1
Before the Honourable Mr. Justice Vasheist Kokaram
Date of Delivery: 29th January 2014

Appearances:
Mr. Shastri Parsad Snr instructed by Mr. Shastri Parsad Jr. and Mr. Kent Samlal for the
Claimant
Mr. Prakash Deonarine and Mr. Richard Jagai instructed by Ms. Reeyah Chattergoon for
the First Defendant
Ms. Lynette Maharaj S.C. instructed by Mr. Alvin Ramroop for the Second Defendant
Mr. Farees Hosein and Mr. Prakash Maharaj instructed by Mr. Roger Kawalsingh for the
Third Defendant

JUDGMENT

1. A little after 6:00p.m on 18th September 2007 there was an explosion at crude oil Tank 7 in
the Morne Diablo Gathering Station #1 in Quinam seriously injuring Mr. Aaron Jairam, the
Claimant, who was positioning a heated flood light near Tank 7’s open man-way. It ignited
the oil tank’s dangerous flammable gases and in a flash, a huge ball of fire leapt out from
inside Tank 7 engulfing Mr. Jairam. He ran for some 300 feet, jumping over a 4 to 5 feet bund
wall2 in the process in sheer panic. His burnt flesh had peeled off his arms from his elbows
and was hanging downwards from his wrists, his face, legs and arms were black, his lips
burnt. The explosion left him charred and according to his testimony smelling like a “roasted
manicou”. Other workers at the site dropped to the ground. Others scrambled in several
directions. Some eventually got to a muster point. In the meanwhile Mr. Jairam and his co-
worker were rolling on the ground their bodies and clothes on flames. The fire burnt for 10
minutes then subsided on its own accord. Mr. Jairam screamed at passing vehicles for help
until he was assisted by other workers. The Petrotrin Fire Services arrived about an hour later.
By that time Mr. Jairam was transported off the site in the back of a van. Eventually later that
night he was admitted to the burn unit of the San Fernando General Hospital where he
remained hospitalised for five (5) weeks.

2
A bund wall is a perimeter concrete wall surrounding Tank 7. It was about 20 to 30 feet from Tank 7.

2
2. These crude oil tanks are a common sight in South Trinidad’s oil and gas industry. Tank
7itself was a 15,000 barrel capacity oil tank, about 30 feet tall and 60 feet in diameter. It was
owned by Trincan Oil Limited (Trincan), the First Defendant3. Tank 7 was Trincan’s only
“fiscalisation” tank to store and sell oil to Petroleum Company of Trinidad and Tobago
(Petrotrin). Trincan was operating as a “Farmout” company operating as a sub licensee to
Petrotrin. Petrotrin’s Joint Ventures Department had prior to the incident made complaints to
Trincan of the high basal or bottom sediment in the oil being supplied and sold from Tank 7.
A day before the explosion took place, 17th September 2007, the Joint Ventures Department of
Petrotrin finally decided to cease future sales from Trincan until the sediments were removed
from its oil stored in that tank. To continue its sale of oil to Petrotrin from Tank 7, Trincan
needed to remove the basal sediment lying at the bottom of oil Tank 7 and the intention was to
return the tank to service in the shortest possible time.

3. Trincan’s source of revenue being in jeopardy, it wasted no time in trying to achieve this
objective to bring Tank 7 back in line with Petrotrin’s requirements. That very day, not
possessing the expertise to clean such large tanks, Trincan consulted with Petrotrin’s Joint
Venture Department for references of contractors which can execute such works. They were
referred to Vincent Rampersad and Sons Limited (“Rampersad”), the second Defendant 4 They
quickly obtained quotations from Rampersad after conducting a site visit at Tank 7 on the
afternoon of 17th September 2007.

4. By the next morning, Trincan’s operations manager, Mr. Neil Mohammed telephoned Mr.
Vincent Rampersad and confirmed that his company was being engaged to execute the job
while Trincan, notwithstanding its lack of expertise in tank cleaning, agreed to provide the
necessary lighting and support. It will transpire later in the day that the Trincan crew that was
mobilised to provide the lighting was Mr. Shawn Ramjattie and Mr. Aaron Jairam under the
supervision of Mr Ronald Seechan. Aaron Jairam, then 21years old, was an electrical trainee
under the supervision of Mr. Seechan executing the duties as directed by Mr. Seechan.
Although working for Trincan in its electrical department, Mr. Jairam was under a contract of
employment with Drilling International Services and Supplies Limited (“Drilling”), the third

3
And the Defendant in the counter claim in CV2008-04781
4
And the Claimant in the counterclaim CV2008-04781
3
 Defendant which was engaged by Trincan to supply to it labour and material as required under
a general contract.

5. By 4:00p.m Rampersad had mobilised its team under the supervision of Mr. Rayan
Rampersad, its safety officer. Amongst its 11 men crew was Mr. Steve Persad, foreman. Apart
from the electrical crew Trincan had on site three other persons who were directed to be on
site by Mr. Mohammed while Mr. Mohammed was on site collaborating with Rampersad and
overseeing the job.

6. A risk assessment and safety briefing having been done by Rampersad, the first phase of the
cleaning work of purging the tank commenced. The oil was pumped out of Tank 7 into an oil
pit nearby and then pumped by a diesel pump to an oil tanker nearby and to be removed off
site about 1.2 miles away to a waste pit. On the side of Tank 7 was a man-way door. It is a
doorway leading to the inside of the tank which had to be opened for the purpose of cleaning
and gaining access to the interior. To get into or to inspect the basal sediment and remove it
one would need eventually to enter Tank 7 from this man-way. The doorway was removed by
Mr. Persad and Mr. Rayan Rampersad, when flammable gaseous fumes began filtering out
into the environment. A chain of events will then unfold which led to the unfortunate
explosion at Tank 7.

7. Mr. Vincent Rampersad, managing director of Rampersad, advised Mr Mohammed that the
Tank needed 24 hours to ventilate this flammable gas. Mr. Mohammed disagreed. Not only
did he insist that Rampersad continue the job into the night but asked that Rampersad employ
a method of shooting water into the tank to expedite the process.

8. Mr. Rampersad stood down his team to get dinner for his crew foreseeing perhaps a long night
leaving Mr. Persad at Tank 7. It was then about 6:00p.m and Mr. Seechan with Trincan’s
electrical crew was on site positioning the flood light. Before leaving Mr. Rampersad had
requested additional lighting from Mr. Mohammed who instructed Mr. Seechan to procure the
lights. They had procured and positioned one of Trincan’s flood lights, an Appleton
Areamaster 250/400W flood light some 12 feet away from the man-way opening. The flood
light was however not classified for use in locations where there existed concentrations of
flammable gases, there was no visible tag on that floodlight to indicate that it was fireproof.
4
 Even though it was obvious to everyone near the open man-way that combustible gases like a
mist was escaping from Tank 7 through the open man-way, Mr. Persad asked Trincan’s men
to move the light closer so he could inspect the interior of Tank 7 to determine how much
sediment needed to be removed. Mr. Seechan and Mr. Jairam disassembled the lamp and
brought it a mere 4 feet from the open man-way with the intention of strapping it to the
railing. The flood light was at that stage energised, it radiated heat and its electrical cord was
joined manually in several places with connectors which too were not designed to be in areas
with combustible vapours. It was a disaster waiting to happen.

9. Mr. Persad stepped back while the light was being assembled near the man-way then as
Counsel for the Claimant puts it “boom and that’s it”.

10. In the aftermath of the explosion the area was cordoned off as officials of the Occupational
Safety and Health Authority (OSHA) and Petrotrin conducted an inspection of the site to
determine the causes of the explosion and make recommendations for its non-occurrence.
Apart from the injury to Mr. Jairam, Tank 7 itself was scorched in the explosion and there was
property damage to Rampersad’s pumping equipment which was in the bunded area.

11. Eventually all the reports conducted by Petrotrin5 and OSHA indicated a measure of
responsibility on Trincan for the explosion and breaches of the Occupational Safety and
Health Act (OSH Act6). No charges were laid under the OSH Act.

12. Arising out of this explosion at Tank 7 there are two claims in negligence before this Court for
determination. Mr. Jairam’s personal injury claim CV2010-4153 (“the Jairam claim”) against
all three Defendants. First Drilling as his general employer. Second Trincan as the
occupier/owner of Tank 7 and quasi employer who paid Drilling for his services, had the
direct control and supervision of his duties in relation to the tasks to be executed that day.
Finally Rampersad as the contractor retained to carry out the job of cleaning Tank 7. Mr.
Jairam had only begun his employment with Trincan about two months before the incident.

5
“Investigations into an incident on tank No 7 at Trincan Oil Limited (Farmout Operator) main storage, Morne
Diablo dated Sept. 20, 2007”
6
Chp. 88:08 as amended

5
 He was an unskilled labourer who had an interest in becoming an electrician. He had received
no formal training, no training in the handling or detection of hazardous areas, flammable
gases, or to execute works in unsafe or zoned areas. He was none the wiser of the sudden
change in the nature of the risks associated with the area immediately outside the man-way of
Tank 7 before and after it is opened. He was not supplied with fire resistant clothing. He was
not advised in any tool box or safety meetings of the hazards that may be likely to occur on
site and how to minimise them, nor of the possibility of the use of non fireproof flood lights in
the vicinity of an open man-way. He was simply doing the best he could as a trainee
electrician with his limited ability of basic knowledge in making the joins in the electrical
cord and splicing the end of the wire to attach to the power source, learning “at the feet” of
Mr. Seechan.

13. In the Jairam claim, Rampersad is also seeking an indemnity or contribution in an ancillary
claim against Trincan for the damages sustained by Mr. Jairam in the explosion.

14. Also for determination is Trincan’s property damage claim for Tank 7 against Rampersad in
CV2008-4781 (“the Trincan claim”). This is a counterclaim in negligence against Rampersad
for the damage to Tank 7. That counterclaim was filed together with a defence to an action
which was instituted by Rampersad against Trincan for the recovery of the loss it sustained to
its tools and equipment and unpaid fees as a result of the explosion. In my case management
order I had ordered that the Jairam claim and the Trincan claim be heard together and that the
hearing of the Rampersad claim in CV 2008-4781 will follow the Court’s ruling in this matter.

15. The issue of contributory negligence of Mr. Jairam was abandoned at the trial. What lies for
determination is which of these three companies are responsible for the loss and injury to Mr.
Jairam and the property damage sustained by Trincan. The main issues are:

 First to determine the cause of this explosion,

 Second whether any of these three employers owed a duty of care to Mr. Jairam to
prevent damage to him arising out of this explosion: whether Drilling as a general
employer, Trincan as a temporary employer or occupier or Rampersad as an
independent contractor
6
  Third, whether any of these Defendants in these circumstances breached that duty of
care and importantly did it result in the injury to Mr. Jairam.

 Fourth, Importantly also falling for determination is what are the duties owed by an
occupier and employer under the OSH Act and whether Trincan and/or Drilling can be
held liable for breach of their statutory duties under section 13 A, 6(1) (2) (a) (b) and
(d) of the OSH Act.

 In the property damage claim the main issue is also resolved by determining the cause
of the explosion and which of the two companies Rampersad or Trincan was
responsible for it.

16. It was Trincan and Rampersad who on that fateful day agreed to engage in a joint enterprise of
cleaning the tank with the responsibility of cleaning being left to the experts and with Trincan
providing the lighting and support. There is no doubt that the explosion occurred as a result of
the concurrence of the acts of Mr. Mohammed, Mr. Seechan and Mr. Persad, employees of
both Trincan and Rampersad. Their instructions and actions brought into contact the
unsuitable light used on that evening with the flammable gases and it cannot be disputed in
this case that so long as the man-way of Tank 7 was open, the lighting was unsuitable in two
main respects. First it was the wrong classification for use in an Area 1 Class 1 area, which
could be any area within the bund wall. Second there were several joints along the electrical
cord attaching the lamp to the energy source which also compromised the integrity of the
lighting in such a designated area. This is unquestionably the agreed testimony of all the
expert evidence in this matter and is conceded as much in the parties’ submissions. Although
it was Mr. Persad, foreman of Rampersad who requested the movement of the lamp closer to
the open man-way neither Mr. Seechan nor Mr. Persad nor anyone else for that matter made
any assessment of the risks associated with the use of that particular light for the operation
either in proximity of the open man-way or in the open bund area at all.

17. In opening the man-way the dimensions of the task altered dramatically. Flammable and toxic
gases were now seeping out from the oil Tank. These hydrocarbons being heavier than oxygen
would be creeping along the floor and extending outwards in every direction of the area up

7
 until the bund wall which would obstruct its flow. Exactly how much gas scientifically was
there in existence immediately before the explosion we do not know, nor is that important for
establishing the cause of the explosion. It was sufficient in this case to recognise the risks
associated with an area now compromised by such gases and what precautions should have
been made to guard against the foreseeable risk of ignition, fire or explosion.

18. This trial brings sharply into focus the response of employers and contractors in the execution
of hazardous jobs. The importance of the law of tort especially in the oil and gas sector is that
it delineates the boundaries of good managerial practice, the proper assessment of risks, the
proper execution of functions and the minimisation of foreseeable harms and threats. The
underlying premise of the employers’ duty of care being the promotion of the health and
safety of its employees and of those persons reasonably within its contemplation who may be
affected by its work and responsible for or affected by its production. The content of the duty
of care is of course fact specific and varies with the tasks undertaken, the nature of the
enterprise and the persons who are in control of the work. The fact that the law on vicarious
liability and employers’ liability is “on the move7” recently demonstrates however the Court’s
proactive role in the promotion of management practices which pays due regard to the welfare
of employees and also assuming responsibility for the performance of their duties. The search
for a unifying principle may be difficult but reasonableness, foreseeability and fairness remain
the touchstone of liability.

19. For the oil and gas industry, the imposition of a duty of care in the common law of negligence
and under statute, the OSH Act, encourages employers to be more careful in the selection of
employees, in their training and supervision, It also highlights the importance of accident
prevention and the proper assessment of risks associated with hazardous enterprises. These
demonstrate that the duty of care is more than a search for Donoghue v Stevenson8’s
neighbour but that it creates a credo of responsibility in the relationships involved in the

7
Per Lord Philips in Various Claimants v The Catholic Child Welfare Society [2012] UKSC 56 .See also the decision of
Ward LJ on vicarious liability as “not a static concept” but “has adjusted over the centuries to provide just solutions
to the challenges of changing times.” JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012]
EWCA Civ. 938
8
[1932] AC 562

8
 exploitation of resources. The trend in the law of an employer’s liability to widen the net to
include persons who are not strictly speaking its employee or considered to be as Mr. Jairam,
a “borrowed” or “quasi” employee”, is simply consistent with this philosophical underpinning
of the tort of negligence to impose a duty on those persons whom one should have reasonably
considered would be at risk.

20. Beyond the economic motivation therefore of the employers in its production and sales is the
motivation of a culture towards safe management practices and proper control of the workers
involved in the enterprise.

21. In this case a function of cleaning an oil tank resulted in an explosion which although not fatal
seriously injured the employees who were on duty engaged in the task where had there been
careful thought and planning by both parties it simply would not have occurred. Not
surprisingly no employer is willing to accept any blame in this accident. Trincan claims
Rampersad is 100% liable as it was retained as an independent contractor and its negligence
caused the accident, or that it was Drilling as his general employer who owes Mr Jairam a
duty of care. Rampersad claims that Trincan is the employer and should be 100% liable.
Drilling contends that Mr Jairam is not its employee. For any one of the employers to argue as
they have tried to do that there is no causative link between their actions and the explosion
and damage suffered by Mr. Jairam or caused to Tank 7 they must demonstrate that they
either bore no duty to Mr. Jairam or if there was such a duty took all proper steps and
precautions to reduce the risk of the commission of the tortious act.

22. Drilling in my view is an innocent bystander. It is a general employer which on the facts has
absolutely no knowledge nor control nor say as to what purpose or how Mr. Jairam's labour
would be integrated into Trincan’s business. This is really an issue between Trincan and
Rampersad. It was Trincan who took an active part in the operations by having its electricians
on site and agreeing to provide lighting and other support, while the actual cleaning of the
tank was being done by the experts, Rampersad. They were both collaborating and working to
one goal cleaning Tank 7.

9
23. In my view the circumstances surrounding this explosion demonstrates unmitigated folly and
irresponsibility of both Rampersad and Trincan, with the main responsibility being on
Trincan, Mr. Jairam’s employer pro hac vice and occupier:
(a) Both Trincan and Rampersad undertook the joint exercise of cleaning the tank, an
inherently dangerous task. Rampersad was retained for their expertise of cleaning and
freeing up the tank and Trincan retained control and agreed to provide lighting.

(b) Different crews under the respective control of the two companies were on site, with
Trincan maintaining overall supervision through Mr. Neil Mohammed.

(c) At the time when the man-way was open, the area outside of Tank 7 was transformed
from a Class 1 Division 2 to a Class 1 Division 1 Area.

(d) No risk assessment was done by Trincan nor Rampersad to determine the
classification of the area before lighting was brought unto the site which was
compromised by the gases.

(e) Rampersad made the request for light and having the expertise in this type of
dangerous task did not bother to make any specific request for the type of lighting to
be supplied nor did he make any enquiry as to the type of light stocked or supplied by
Trincan.

(f) Trincan who even though was aware that Rampersad, the expert, could have supplied
the specialist lighting for the job made a conscious economic decision to supply its
own lighting which was patently unsuitable for the job.

(g) The light and its equipment supplied were not of the standard required for a Class 1
Division 1 Area.

(h) The employees or crew of Trincan installing the lighting and in particular Mr. Jairam
had no training of the installation of lighting under such circumstances.

(i) Trincan unlike Rampersad did not even carry out a proper briefing of its workers,
supplied any safety clothing, conducted a safety analysis or risk assessment of the job,
yet it wanted to maintain overall supervision to ensure the job gets done.
10
 (j) Rampersad who had the required training did not bother to make any enquires or
assessment of the light and equipment supplied before bringing it closer into contact
with flammable material.

(k) Trincan against the advice of Rampersad insisted that the work continue with the
knowledge of the high density of flammable gases and failing to take any precaution
against the risk of ignition by supplying the work classification of light.

(l) There was no thought, nor planning nor any proper management exercised by either
Trincan or Rampersad in this particular aspect of the enterprise leading to the
explosion and injury of Mr. Jairam.

(m) Rampersad recognised in their risk assessment of the risk of fire due to any improper
electrical apparatus. Yet neither Trincan nor Rampersad took any steps to reduce the
risk of fire in the task of illuminating the tank for an inspection. It should have been
clear to everyone in my view that lighting would have been required to see inside the
tank to measure the basal sediment and to purge the basal sediment completely from
the tank that was in fact the main concern of Trincan and the main job Rampersad was
hired to accomplish.

24. I am of the view that Mr. Jairam was injured due to the folly of supplying a defective light for
the purpose requested, by directing Mr. Jairam to bring closer an energised non fireproof lamp
at an open manhole where gaseous flammable fumes were clearly noticeable. The inspection
of the tank with a light was not a spur of the moment request. It was an activity that was in my
view closely associated with the cleaning operation. Those responsible for completing the job
satisfactorily of removing the basal sediment could only make such an assessment by
illuminating the interior of Tank 7. It was a direction given by Mr. Persad in the employ of
Rampersad and a lamp supplied by Mr. Seechan under the supervision of Mr. Neil
Mohammed for Trincan.

25. They are both vicariously liable for the tort of their employees and failing to have in place a
safe system of work. It is the type of case where an apportionment of liability is appropriate
and I shall apportion their liability 80/20 against Trincan for the reasons set out in this

11
 judgment. Drilling in my view was the general employer which simply bore no common law
duty toward Mr. Jairam as it was not the employer in the enterprise that was being executed
nor was there a breach of its statutory duty under OSHA.

26. It will follow that Trincan is responsible for 80% of Mr. Jairam’s damages and Rampersad is
responsible for 20% of Mr. Jairam’s damages and 20% of Trincan’s counter claim.

27. I have structured this judgment along the following lines:

The evidence ..........................................................................................................18
The issues for determination ..................................................................................42
The cause of the explosion .....................................................................................43
A duty of care.........................................................................................................43
Duty of care- the employer ...........................................................................46
The duty of care to the borrowed employee .................................................47
Non delegable duty .......................................................................................57
Occupier’s Liability ......................................................................................59
The duty of the independent contractor ........................................................59
Joint enterprise .......................................................................................................60
Breach of Statutory Duty .......................................................................................61
Conclusion .............................................................................................................70
Postscript ................................................................................................................71

The Claims
The Jairam claim
28. The Jairam claim against all three Defendants is in common law negligence and breach of
statutory duty under the OSH Act. It is trite law that an employer owes its employee a duty to
take reasonable care for their safety. It was described as a threefold obligation: the provision
of competent staff, adequate material and a proper system and effective supervision.
Swanwick J formulated the employers duty in Stokes v Guest, Keen and Nettlefold (Bolts
and Nuts) Ltd [1968] 1 W.L.R. 1766 at 1883 in the following terms:
”the overall test is still the conduct of the reasonable and prudent employer, taking
positive thought for the safety of his workers in the light of what he knows and ought to
12
 know... Where he has in fact greater than average knowledge of the risks, he may be
thereby obliged to take more than the average or standard precautions... He must weigh up
the risks in terms of the likelihood of injury occurring and the potential consequences if it
does; and he must balance against this the probable effectiveness of the precautions that
can be taken to meet it and the expense and inconvenience they involve.”

29. Whether the employer is also in breach of a statutory duty will depend upon the nature of the
provisions of the statute, whether as a matter of construction the duty was imposed for the
benefit of a limited class and that Parliament intended to confer a private right of action,
established a duty on the employer and that it is in breach.

30. Insofar as a sub-contractor is concerned it also will owe its employer’s employee a duty to
take reasonable care for his safety depending on the nature of the work for which he was
engaged. See Wilsons and Clyde Coal Company v English [1938] AC 57.

31. In his re-amended Statement of Case Mr. Jairam contends that Trincan was negligent when
Mr. Mohammed failed to heed the warning of Rampersad’s employees, authorised the
installation of a light in a manner which undermined the recommended area classification,
failed to hire competent staff, failed to ensure a proper risk evaluation and risk assessment
was conducted, failed to provide adequate personal protective equipment, failed to provide a
safe system of work, failed to provide adequate training, failed to implement a permit to work
system bearing in mind that works were being undertaken within a confined space, failure of
its employee Mr. Seechan to properly install the lighting system.9

9
The First Defendant and/or its agents and/or the servants were negligent in that they:-
1) Failure of Neil Mohammed to heed the warnings of the Second Defendant’s agents and or servants;
2) Authorized the installation of the light in manner which undermined the recommended area classification;
3) Failed to hire/employ competent staff;
4) Failed to ensure that a proper risk evaluation was conducted before working in/around the Tank;
5) Failed to take reasonable care for the Claimant’s safety and expose the Claimant to a foreseeable risk of
injury;
6) Failed to make or give effect to appropriate measures for the safety of the Claimant by providing adequate
personal protective equipment;
7) Failed to take any or reasonable care to ensure that the Claimant would be reasonably safe in using the
premises;
8) Failed to take any or any reasonable care to prevent injury or damage to the claimant from unusual
dangers on the said premises of which they ought to have known;
13
32. With respect to Drilling, (which was only joined as a Defendant in these proceedings after
Trincan alleged negligence against Drilling in its Defence)10, he contended that it failed to
ensure he had the necessary skills to carry out works at the work site, failed to properly train
the Claimant, failed to take reasonable care for the Claimant’s safety and exposed the
Claimant to a foreseeable risk of injury, failed to provided PPE, failed to take reasonable care
to ensure that the Claimant would be reasonably safe in using the premises, failed to provide a
safe system of work and failed to provide adequate training.11

33. In his re amended pleadings Mr. Jairam described Drilling as his employer which has been
admitted by Drilling in its Defence. However as would be seen below an issue to be resolved
is which of these two companies assumed the duty of care towards Mr. Jairam as
employer/employee under the common law.

34. With respect to Rampersad, Mr. Jairam pleaded that they were negligent in carrying out the
work of cleaning Tank 7: in authorisation of the installation of the light, failed in addition to
warn the Claimant of the presence of the danger of highly flammable gaseous fumes,

9) Failed to conduct a suitable and sufficient risk assessment of the job;

10) Failed to provide a safety system of work for the job;
11) Failed to provide adequate training to the Claimant for a job of this nature;
12) Failure to implement a permit to work system especially bearing in mind that works were being
undertaken within a confined space;
13) Failure of its agent and or servant Ronald Seechan to properly install the lighting system; and
14) Breached sections 13A, 6(1), 6(2) (a), 6 (2) (c) and 6 (2) (d) of the OSH Act of 2004 as amended.
10
Trincan’s allegation of negligence against Drilling in its Defence.
11
The Third Defendant, its agents and or servants were negligent in that they:
1) Failed to ensure that the Claimant had the necessary skills to carry out his functions at the work site;
2) Failed to properly train its staff, in particular the Claimant;
3) Failed to take reasonable care for the Claimant’s safety and expose the Claimant to a foreseeable risk of
injury;
4) Failed to make or give effect to appropriate measures for the safety of the Claimant by providing adequate
personal protective equipment;
5) Failed to take any or reasonable to ensure that the Claimant would be reasonably safe in using the
premises;
6) Failed to take any or any reasonable care to prevent injury or damage to the Claimant from unusual
dangers on the said premises of which they ought to have known;
7) Failed to provide a safety system of work to the Claimant;
8) Failed to provide adequate training to the Claimant for a job of this nature;
9) Breached sections 13A, 6(1), 6(2) (a), 6(2) (c) and 6(2) (d) of the OSH Act of 2004 as amended.

14
 undertook cleaning of Tank 7 when it knew it was unsafe, failed to take proper precautions in
cleaning the tank, failed to wait 24 hours before cleaning the tank, failed to ensure a safe
system of work and failed to hire competent staff, failed to ensure a proper risk evaluation was
done.12

35. With respect to both Trincan and Drilling, Mr. Jairam alleged breach of the following sections
of the OSH Act sections 13A, 6(1) 6(2) (a) (c) (d).13 These sections of the OSH Act deals
with the provision of annual risk assessments and impose a general duty of care on employers
for the safety of their employees.

36. Trincan’s defence: Trincan defended the claim of negligence on three main planks. Firstly,
that Mr. Jairam was an employee of Drilling and as a consequence it owed no duty to Mr.
Jairam qua employer even if he was a “lent employee” Drilling retained its duty of care over
him. Second, that Mr. Jairam was under the special employment of the second Defendant.
This, quite wisely, was not seriously pursued however in closing addresses. Third, that it hired
a competent independent contractor to carry out the task of cleaning the tank and is therefore

12
The Second Defendant its agents and or servants were negligent in that they:
1) Authorized the installation of the light in a manner which undermined the recommended area
classification;
2) Failed to utilize standard operating practice and procedures for the cleaning of the tank;
3) Failed to ensure that the tank was free of highly flammable gaseous fume s before work was undertaken;
4) Failed to take appropriate steps to prevent the risk of injury to the Claimant arising out of their failure to
ensure and or properly ensure that the tank was safe and or free from fumes;
5) Failed to take care to prevent the risk of injury to the Claimant who was in the vicinity of the Tank;
6) Failed to warn the Claimant of the presence of the danger of highly flammable gaseous fumes in the
vicinity of the Tank;
7) Undertook cleaning of the tanks knowing that it was unsafe to do so;
8) Failed to take proper precaution in cleaning the tank;
9) Failed to await 24hours before cleaning the tank;
10) Failed to ensure a safe system of work;
11) Failed to hire/ employ competent staff;
12) Failed to ensure that a proper risk evaluation was conducted before working in/around the Tank;
13) Failed to take reasonable care for the Claimant’s safety and expose the Claimant to a foreseeable risk of
injury;
14) Failed to provide a safety system of work for the job; and
15) Failure to implement a permit to work system especially bearing in mind that works were being
undertaken within a confined space.
13
He also relied on the principle of res ipsa loquitur but this doctrine was not pursued by the Claimant in his
submission at the trial.

15
 not responsible for the loss. Fourthly, that the explosion was caused wholly or in part by the
negligence of Rampersad or Drilling. It adopted the allegations of negligence alleged by the
Claimant and further contended that Rampersad was negligent where the opening and or
allowing the man way of Tank 7 to remain open when it was unsafe so to do. Failing to
provide proper ventilation while cleaning the tank, instructed the electricians to move the light
approximately 3 feet to the tank when they knew or ought to have known the danger of the
exposure of the light to the fumes, knew or ought to have known that the light was not fit for
the purposes undertaken by the Claimant and failed to provide competent staff or adequate
supervision of the operations. With regard to Drilling it alleged that Drilling provided a
trainee without the necessary skills, failed to provide sufficient safety equipment for the job
and failed to provide a safe system of work.

37. A critical issue of fact to be determined is the contractual terms of the cleaning operation in so
far as it is alleged that Trincan agreed to provide lighting for the cleaning operations. On this
matter it is worth noting that this Defendant accepted that it had a role to play in the tank
cleaning operations in so far as it would provide the lighting. It accepted the evidential burden
in its pleading of also demonstrating that Rampersad was well aware of the “non gas proof
lights” in Trincan’s possession which would have been supplied for the job. This aspect of its
pleading is worth noting at paragraphs 7(f) (h) (i) and (j) of the Defence.

38. Rampersad’s Defence: The contractor Rampersad pleaded that it was Trincan which was
negligent and in breach of statutory duty. In addition to adopting Mr. Jairam’s allegation of
negligence against Trincan, the main planks of its own allegation of negligence against
Trincan was mainly that it failed to recognise that a Class 1 Division 2 Area had become a
Class 1 Division 1 Area by reason of the presence of ignitable gases in the area, therefore it
utilised a lighting system unsuitable for the area classification either by means of the light
itself or the inadequate joining or missing glands, failing to provide training for its employees
in classified areas, employing an operations manager who was untrained, failing to exercise
patience or insisting that the work continue rather than waiting for 24 hours for the venting
process as recommended by Rampersad and putting everyone at danger. Additionally
Rampersad contended that it followed acceptable practice for the cleaning of the tank, it took

16
 reasonable care and safety for its employee and conducted proper risk evaluation and it was
Trincan who was in control and who supervised the job site and whose responsibility it was to
provide adequate lighting and install it properly.

39. Rampersad also issued an ancillary claim seeking an indemnification and contribution against
Trincan in the event that Rampersad was held to be liable in negligence.

40. Drilling’s defence: Drilling adopted a very simple position that based on the terms of its
contract Trincan had assumed direct control and supervision of Mr. Jairam and assumed the
responsibility qua employer for providing a safe system of work and a safe site for Mr.
Jairam.

The Trincan claim

41. Trincan’s claim in negligence is really a counterclaim in the contractor’s claim. In that claim
Rampersad had claimed damages for the property damage and loss of equipment as a result of
the explosion and the ensuing OSHA investigations. In those proceedings Trincan
counterclaimed the costs of its damaged tank as a result of the negligent conduct of
Rampersad’s workers which caused the explosion. Rampersad’s defence to the counterclaim
alleged negligence on the part of Trincan, that is was the author of its own misfortune and
therefore cannot hold Rampersad liable for damage to its tank. Counsel for Trincan indicated
at the beginning of the trial that attorneys for both Trincan and Rampersad would seek to
agree the question of damages on this counterclaim.

42. As the Jairam and Trincan claims were virtually a mirror image of one another, it was
convenient to try both of these claims together as in essence the resolution of both claims lie
in determining which of the companies, in the main Trincan and Rampersad was responsible
for the explosion. I ordered the trial of Rampersad’s claims to follow these proceedings as it
involves another issue concerning loss after the site was cordoned off in the aftermath of the
explosion. It is obvious however that the findings of fact that I will make in these will impact
upon the contractor’s claim.14

14 th
See Case management order dated 19 October 2012.

17
The evidence
43. The evidence adduced in this case consisted of a core bundle of agreed documents which
included reports of investigations conducted by OSHA, Petrotrin and Trincan, witness
statements, expert reports and joint expert reports. Initially there were 11 witnesses for the
Claimant dealing with both the issue of liability and quantum, however as a result of an
agreement arrived at by the parties on damages at the trial those witnesses dealing with
quantum were relieved and only two witnesses gave evidence for the Claimant, Mr. Aaron
Jairam and Mr. Rabinath Ramoutar the representative of OSHA. Mr. Jairam’s testimony set
out the sequence of events leading to the explosion in the setting up, energising and moving of
the Appleton light. Apart from his witness statement Mr. Jairam had also given a statement to
Petrotrin and OSHA representatives as part of their investigations which formed part of the
respective reports. Mr. Ramoutar explained his finding in his report required under OSHA
which included several statements taken by the crews who were on duty for both Trincan and
Rampersad. Both of these witnesses were straight forward and candid in their responses.

44. Trincan had three witnesses. Its managing director Mr. Cukavac, the supervisor Mr. Seechan
and an expert retained by Trincan through the ECA Mr Alexander Noel. Trincan’s Mr.
Seechan gave his evidence in straightforward manner. He also gave a written statement to
Petrotrin and OSHA during their investigation. He was in charge of the Trincan crew
comprising Shawn Ramjattie, Kevon Seeraj, Hasley Joseph and Aaron Jairam. Mr. Cukavac’s
evidence in relation to the arrangement between Trincan and Rampersad was quite useless as
he had no personal knowledge of the arrangements that Mr. Mohammed made with
Rampersad and can give no reliable or credible evidence as to whether its obligation was
restricted to perimeter lights or lighting generally. When the negotiations for retaining the
contractor and the explosion took place Mr. Cukavac was thousands of miles away in Canada.
Mr. Neil Mohammed, despite his intimate involvement in the entire incident and being in
charge of the operation for Trincan was not called as a witness.

45. Rampersad’s evidence was led through its managing Director Mr. Vincent Rampersad, its
safety officer Mr. Rayan Rampersad, its foreman Mr. Steve Persad and its expert Mr. Aldwyn

18
 Lequay. The Rampersads proved to be difficult witnesses with inconsistencies in their
answers and their witness statements. Nevertheless these gentlemen were the only persons
brought to this Court who had intricate knowledge of the arrangements to account for the
nature of the relationship between Trincan and Rampersad in carrying out the cleaning
exercise.

46. Drilling called one witness Ms. Michelle Pereira who is Drilling’s Human Resource Manager
as well as that of Trincan.

The Appleton Areamaster

47. It may be useful at this juncture before reviewing the evidence to describe some technical
terms that arise in the course of this hearing. The Appleton is an Areamaster 250/400w
floodlight. It is an integrally ballasted floodlight for mogul based 400W 250W 150W 100W or
70W high pressure sodium lamp, 400W 250W of 175 W metal halide lamp or 40W 250W of
175 W mercury vapour lamp. It is designed for general marine and importantly for Class I
Division 2 grade ABCD hazardous locations. The instruction sheet for the Appleton clearly
states:
“Do not use in areas of limited ventilation or in high ambient enclosures....The lamp
and luminar operate at high temperatures contact with combustible material can
cause fire and personal contact can cause severe burns”.

48. As explained in the expert’s reports area classification in the oil industry are particularly
important as it is a convenient flag for defining hazardous locations due to among other things
the concentration of hazardous vapours. Mr Noel’s report makes reference to the National
Electrical Code (NEC). It defines hazardous locations as those areas "where fire or explosion
hazards may exist due to flammable gases or vapours, flammable liquids, combustible dust, or
ignitable fibres or flyings.” A substantial part of the NEC is devoted to the discussion of
hazardous locations. Electrical equipment can become a source of ignition in these volatile
areas.

Mr Jairam’s employment:

19
49. Mr. Jairam outlined his terms and conditions of employment with Drilling. He was hired on or
about 16th July 2007 as a labourer on a temporary contract for a period of three months from
16th July 2007 to 16th October 2007. Pursuant to the terms of that contract both parties could
terminate the contract. Drilling also entered into a five year agreement from 2003 with
Trincan to supply to it operational labour at an agreed price.

50. Importantly clause 6 of that agreement provided that in providing services to Trincan, Drilling
shall comply with the reasonable directions of the Board of Directors of Trincan and use its
best endeavours to promote the interest of the Company. This is consistent with the fact that
Mr. Jairam was really much a part of Trincan’s enterprise.

51. Ms. Pereira in fact explained that although she recruits the workers when an employee of
Drilling is sent to work with another Company that employee is under the direct control and
supervision of the other Company. This was explained to Mr. Jairam and that they were
required to carry out all instructions given to them by the other company which can deploy
them in whatever manner they felt necessary.

52. This explanation of the relationship of Mr. Jairam with Trincan and Drilling was in fact
corroborated by both Ms. Pereira and Mr. Seechan. Under cross examination Mr. Jairam
confirmed the following:
a. At all times he was working with Trincan;
b. He was acting under the instructions of Mr. Seechan who he understood to be working
for Trincan as well;
c. He was transported to Tank 7 in Trincan’s vehicle;
d. He met other persons there employed with Trincan, and was part of a Trincan crew;
e. He was not accustomed with working with the area master light. It was the first time
he was going to Tank 7 to do this job for Trincan.

53. Mr. Seechan, Trincan’s employee, who was Jairam’s supervisor, in cross examination
confirmed that it was he who was the one who gave the training to Jairam to splice cables and
he directed that it be done on that occasion. Mr. Seechan was the one who did his assessment
of Mr. Jairam as an electrical trainee and first assessed him as having a basic knowledge of
electrical but not as basic for domestic wiring and electrical work. Essentially he was able to
20
 “do the correct thing under supervision”. When he was informed of the specific task it was
Mr. Seechan who made an assessment of the needs of the job and the skills and capability of
the crew. Importantly Mr. Seechan pointed out that when Mr. Jairam came to work for
Trincan he said he knew the basics for electrical and “I take it for granted.” That basic
knowledge was sufficient from Mr. Seechan as far as he was concerned to carry out the task
assigned and required at Tank 7. He did not require any person with special electrical
knowledge; he did not require an expert in wiring. The simple labourer Mr. Jairam was, as far
as Mr. Seechan was concerned sufficient for providing lighting at Tank 7. At the end of his
cross examination it was quite clear that Mr. Jairam was totally and completely under the
control, supervision and direction of Trincan and very much a “Trincan man”.

The hiring of Rampersad to clean Tank 7

54. The need to hire Rampersad was as a result of the economic motive to return Tank 7 to
operation after cleaning out the basal sediment as instructed by Petrotrin. This was the
common conclusion of the experts, Mr. Ramoutar and Mr. Noel who had conducted the
investigations into the incident. According to Mr. Cukavac’s review of the reports and the
statement which was before the Court, Petrotrin had recommended Rampersad for the job and
Mr. Cukavac authorised Mr. Mohammed to deal with that contractor. No one had examined
the contract made between Rampersad and Mr. Mohammed of Trincan as there was none in
writing save for quotations and requisition forms. It was certainly one made partly orally
between Mr. Mohammed and Mr. Vincent Rampersad, the Managing Director and partly in
writing.

55. Mr. Vincent Rampersad had 35 years of experience in doing various types of jobs in the
oilfields including the cleaning of oil storage tanks. However it was the first time the company
was doing work for Trincan. Mr. Vincent Rampersad was first asked by Mr. Mohammed to
quote for cleaning Tank 7 which at a site visit on 17th September 2007 he was told contained
500 barrels of oil. After providing the quotation he was asked to quote for cleaning the tank
and disposing of the basal sediment of about 500 barrels. He was also told to wash out the
tank, gas free it and to box it up to put the tank back in service and to supply the water to
clean the tank. He was told that the tank was to be cleaned as matter of urgency. According to

21
 his testimony, he explained to Mr Mohammed that if he had to do work in the night he would
have to supply special lighting. Mr. Mohammed told him not to worry about lighting since
Trincan had the proper type of lighting and would provide lighting if necessary.

56. What governs the relationship of Trincan and Rampersad are those oral terms and a quotation
#1706 which sets out the services to be provided for the sum of $89,834.00. It is based on this
quotation that Mr. Mohammed telephoned at 10:00a.m on 18th September 2007 and told him
“that my company was awarded the job as quoted in the second quotation of $89,834.00. He
told me I should mobilise right away as the job was urgent.” That quotation covered the items
of work which excluded lighting.

57. Later when Mr. Rampersad arrived on the site to mobilise and to execute the works Mr.
Vincent Rampersad would sign two requisitions which were the same as the quotations save
that the second requisition did not include how much basal sediment was required to be
cleaned. This was an important aspect for the quotation and indeed for the job. Mr. Vincent
Rampersad makes the point in his testimony that he did not sign that requisition as it was
important to him that he first confirmed how much basal sediment was required to be removed
before a final price could have been determined. As this was an important term which affected
the price for the job intrinsically an inspection of Tank 7 would have to be done to determine
the levels of basal sediment during the course of the works.

58. Under cross examination although Mr. Vincent Rampersad's testimony wavered and appeared
inconsistent with his witness statements in the two actions however what is clear in relation to
the arrangements between Trincan and Rampersad was as follows: (a) he asked for low flame
lighting it was not supplied. A rather technical argument was made that this is not consistent
with the pleadings I find that argument overly technical and not in touch with the evidence
elicited in this case (b) if he had to quote for special lighting it would cost about $2,500.00 a
day. (c) Mr. Mohammed assured Mr. Rampersad that Trincan had the proper lighting for the
job (d) he was told that the light was used on rigs and was gas proof however neither Mr.
Vincent Rampersad or Mr. Rayan Rampersad inspected the lights nor asked about the details
of the lighting (e) he intended to check the lights to ensure that it was the correct lights before
it was used for the cleaning of the tanks.
22
The joint enterprise of lighting and cleaning Tank 7:
59. As the evidence unfolded it was clear that both Trincan and Rampersad were engaged in a
joint enterprise to get the cleaning of Tank 7 accomplished and brought back on line although
carrying out different tasks. In examining the evidence of the respective witnesses on the task
undertaken on that day it reveals that Mr. Jairam was under the control of Trincan, that
Trincan undertook the job of providing lighting while Rampersad undertook the job of
cleaning Tank 7. Trincan was woefully unsuited to carry out the task of providing lighting
safely for this job. Both parties failed to appreciate the obvious risk posed by the energised
light coming in contact with gaseous fumes.

60. According to Mr. Jairam’s evidence, on the fateful day he was working at another of
Trincan’s locations with Mr. Seechan and Mr. Shawn Ramjattie moving a rig from one
location to another. They were on standby to supply electrical power on that rig when at
around 4:00p.m Mr. Seechan told them to go back to Tank 7 to install a light by a manhole.
Again there was no safety briefing, no tool box meeting for this job. They left as instructed
and Mr. Seechan went to the store room for the light. He was setting it up on the stand while
Mr. Jairam was running the cable supply for the light. To do this he attached three wires
which were colour coded to another set of similarly colour coded wires. Mr. Seechan checked
his work and taped up the wires. At this time the manhole door of Tank 7 was closed and
Rampersad’s crew was in the process of unbolting the cover. The wires were stripped at the
end to connect it to the breaker. Mr. Shawn Ramjattie connected it to the breaker and
energised the line. The light was at that point about 12 feet away from the manhole.

61. Mr. Jairam overheard a conversation between the sub-contractors and Mr. Mohammed
requesting the light closer and the sub contractor’s concern that the tank needed to vent for 24
hours. Despite that Mr. Mohammed insisted that the job continue and then the request was
made for the light to be placed about 2 to 3 feet from the open man-way. This was done by
Mr. Seechan upon Mr. Mohammed’s instructions while Mr. Jairam assisted to give the cable
some slack. Shawn was asked to get some straps so he could strap the light on the railing. At
that time Mr. Jairam was close to the tank and saw fumes in the tank. Save for some
discrepancies with regard to the distances of the light from the man-way at different points in

23
 time, he remained unshaken in his testimony. The focus of the cross examination of Mr.
Jairam was mainly on the area of supervision, the orders he received from and involvement of
either Trincan and/or Rampersad and his employment status. He confirmed that the light was
first set up at the bund wall then moved to about 6 feet then it was moved to about 3 feet from
the manhole all on the request of Mr. Rampersad and Mr. Steve Persad, at all times in setting
and moving the light he was acting under instruction of Mr. Mohammed first to go to tank 7
and Mr. Seechan in moving the light closer to the tank.

62. The light was moved on two occasions after it was energised under the instructions of Messrs.
Mohammed, Seechan and Persad.

63. According to Mr. Seechan, while his crew was on a lunch break he received a new assignment
when he went to the Trincan administration office building. His new assignment was given to
him by Mr. Mohammed to supply lighting at Tank 7. He said the light to be supplied was the
Appleton and that it was used whenever there was need for supplemental lighting. Around
5:15p.m he mobilised Mr. Shawn Ramjattie and Mr. Aaron Jairam with the light and tripod.
The light supplied was defective and he returned to order and receive a new light and returned
to Tank 7. He assembled the light and placed it facing the man way. He ensured that the cord
and connectors were intact before it was energised. He heard Mr. Persad requesting the light
closer to the tank and then closer to see into the tank. He then asked Mr. Persad how close and
he said to hook it up on the railing about 3 feet from the man-way. He dismantled the light
and took it to the railway and sent Mr. Ramjattie to get some cables. Mr. Jairam and Mr.
Seechan were holding the light. Mr. Ramjattie was taking too long to return and he asked Mr.
Jairam to put the light down and then he saw the flash of light.

64. Importantly under cross examination Mr. Seechan’s evidence confirms the following: that (a)
he was not told by Mr. Mohammed what lighting was required or to use (b) he too never
received training from Trincan. His training came from other contractors and school (c) he
never provided lighting for cleaning a tank before either with Trincan or in his own
experience (d) importantly though even with his own knowledge and without training he
understood the risk inherent in using the Appleton for the job required. (e) Had he known it
was not simply perimeter lighting he would have taken another light. He therefore was quite
24
 aware of different classification of lights and that there is a need for different lights for
different jobs, in this case to provide light to clean inside the tank with combustible fumes. (f)
At all times Mr. Mohammed was present on the bund wall and was giving him instructions.
(g) It was Mr. Mohammed who would be speaking to Mr. Rampersad about the job as it
progressed and then directing Trincan’s crew. (h) He accepted that the cables were not the
proper or appropriate cable for that type of environment it was not armoured cabling.

65. It is clear in my view from this evidence that the crew assigned by Trincan was inexperienced
for the task of cleaning a tank. They had absolutely no knowledge about the risks associated
with the job of using light for inside an oil tank and what it entails. There was no briefing nor
training as to what one is to expect and to cater for to prevent injury or damage. No risk
assessment was done nor tool box meeting where they were advised or prepared. Mr.
Mohammed was directing and co-ordinating the show and stood on the bund wall as a master
of what he surveyed. There was collaboration between Mr. Steve Persad and Mr. Mohammed
as to the progress of the works. At no stage in the proceedings did Mr. Mohammed or Mr.
Seechan raise any alarm or concern. Further, Mr. Seechan was quite aware of the need for
different lights and cables. He at least had that basic knowledge. No one on Trincan’s crew
including its manager of the operation Mr. Mohammed appreciated the risks of opening the
man-way and the use of lights in the bund area. In my view it was quite reckless to even offer
to provide lighting if Trincan had absolutely no experience in cleaning a tank or what is
required in so doing in any meticulous detail. The workers not only had basic knowledge they
were virtually inexperienced in the oil and gas industry.

66. Mr. Cukavac, the managing director of Trincan did not improve the case for Trincan but made
it quite worse. First he had absolutely no personal knowledge of the contractual arrangements
with Rampersad. Second he had no personal knowledge of the arrangements, or the sharing of
responsibility between Trincan and Rampersad. In his cross examination he was quite casual
about the details of this accident which simply exhibited in my view virtual ignorance of the
details. He was in Canada when this accident occurred and his only contact was with Mr.
Mohammed via telephone that the job needed to be done and he gave general authorisation
but Mr. Mohammed was left in charge of it. Third his evidence is quite worthless as to what

25
 the intention was or what was the purpose of retaining Mr. Rampersad as he simply did not
enter into any negotiations with Mr. Rampersad, nor made the agreement and was not
personally aware of the terms of the arrangements. His attempt in cross examination to
suggest that Trincan’s obligations was to provide perimeter light was unconvincing. He even
goes further to say he understands that Mr. Mohammed wanted to check the basal sediment
and that that was important for Trincan. Fourth so casual was his involvement that when
pressed in cross examination he could not say that he called upon Mr. Mohammed for a full
explanation as to what had happened. An explosion just took place on his premises and all he
was content to do was to rely on the statements provided without providing any further
information as to what took place when Mr. Mohammed was the one he left in charge. Fifth
the effect of his testimony is that the testimony of the Rampersads would be preferred in so far
as to what the contractual arrangement with them was as there simply is no evidence from
Trincan save for the documentation on which Mr. Cukavac himself relied to prepare his
witness statement. Sixth Mr. Cukavac provides no history of the company's safety expertise
no safety briefing of workers no interest at all in the safety of his workers in the electrical
department who was assigned to the job. Seventh, he confirmed that Tank 7 was Trincan’s
only sales tank and it was important not for that tank to be down for any length of time. Eight,
he confirms Mr. Mohammed was present to secure Trincan's interest. He is unable to deny
obviously that Mr. Mohammed made the arrangements for lighting, inspected the equipment
when Rampersad came on site (which did not include lights), and insisted that the work
continued into the night. That Mr. Mohammed took it upon himself to supply the lighting to
conduct the inspection of the tank. He also agrees that Trincan would facilitate the work going
on to provide lighting the specifics he cannot say. Finally he tried to distance his
responsibility for Mr. Jairam insisting he was Drilling’s employee even though they fell under
his company’s supervision and control. In one breath he argues that Mr. Jairam is not his
employee but in another that Trincan will give Mr. Jairam direction and supervision.

67. In my view the manner of his testimony is consistent with the laissez faire approach to his
operations that fateful day.

26
68. There was not even an emergency response plan in place. He could give no direct answer why
a risk assessment was not done. He was aware of what it is and the requirement but hid glibly
behind a statement “that back then things were not strict”. He did not even know what safety
equipment would be required for Mr. Jairam when he was wiring under Trincan’s instructions.
He was very keen in my view to simply shield behind the fact that he retained a specialist
Rampersad to clean out the tank. However he had to concede that the fiscalisation operations
were very important and the job had to be completed.

69. From this it is clear that Trincan maintained a poor governance structure and operations in
relation to the safe execution of this job.

70. Mr. Steve Persad was a critical witness as he was the one who said that the door for the man-
way should be opened. Compared to the Trincan crew his experience was more evident. He
worked in the oil field for 25 years and was a foreman for the last 15 years according to his
testimony. There were 11 men assigned to the job. Two safety officers Mr. Rayan Rampersad
and Mr. Ian Boodoo. They carried out the safety checks held safety briefings with Rayan. Mr.
Mohammed inspected their equipment and then gave them clearance to enter the Trincan
compound. Once there they conducted a tool box meeting with all the workers including Mr.
Mohammed from Trincan. However none of Mohammed’s crew was there at the time. In
terms of safety Mr. Rampersad spoke about the muster points. Mr Mohammed spoke about
Trincan rules and regulations. It was a 10 minute meeting. The safety officers checked the
workers gear, nomex coveralls, gloves, safety glasses boots, and gas masks for the workers
working on the tank and in the bund area. No similar check was done by Mr. Mohammed for
his workers or Mr. Seechan. There was no safety officer from Trincan on site. Mr.
Mohammed maintained overall supervision even though Mr. Persad was the foreman for the
job. The tank was first bled into a catchment pit which was then pumped to a tanker on the
road way outside of the bund wall. It took about one and a half hours to bleed the tank which
would put the exercise ending around 5:30p.m.

71. After bleeding the tanks the workers for Rampersad set about another phase in the job which
is to open the man-way. Importantly Mr. Persad and a co-worker did that with safety
equipment notably gas masks and gloves. Clearly they anticipated toxic fumes and he testified
27
 that when at 6:00p.m he opened the man-way he was able to tell there were a lot of gas fumes
“as I saw mist like vapours coming out of the tank”. At this stage Mr. Mohammed was on the
steps and the lights would have been on site. Mr. Rampersad in charge of the cleaning
operation instructed his men to move out of the bund area and let the tank purge. Importantly
the gases would have enveloped the entire bund area. On his instruction Mr. Rampersad told
his team to pack up as it would take 24 hours to purge the tank of the gases. They were about
to leave when Mr. Mohammed consistent with his overall control intervened.

72. It was a critical intervention and it would appear that this turn in the operations set in train
fatal flaws causing the accident.

73. The next phase was now to shoot water into the tank. According to Mr. Persad his crew had
took a break when he was asked where he wanted the light and he directed Trincan’s team to
the open man-way. The same man-way he was protecting himself from with gloves and a
mask. The same man-way he saw vapours like mist coming up. The same man-way his safety
officer advised they should stand back from beyond the bund wall. The same man-way where
he was told let 24 hours pass for gases to pass though that opening. It is at this man-way he
was directing an energised Appleton Areamaster “I needed the light to flash in the man-way”.
In my view he may have simply lit a match and throw it into the tank. According to Mr.
Persad the only reason for the inspection was to check the basal sediment not to make a
decision to continue the work that night. As it turned out without checking the appropriate
light “boom” that was it. He made it a fait accompli that there would be no further work on
Tank 7 that night or in days to come. After the explosion Mr. Mohammed fled the scene never
to return again not even to this court. It was Rampersad’s workers who helped Mr. Jairam.

74. In cross examination of Mr. Persad it became clear that the inspection was a preliminary
phase to shooting the water to determine the amount of basal sediment.

75. Critically Mr. Persad established in his evidence that (a) he has inspected inside a tank many
times with a light (b) opening the man-way is intrinsic to the job to check basal sediment and
cleaning the tank (b) only electricians are supposed to do the job of lighting (c) he was not
concerned about the type of light that Trincan was bringing (d) he made no enquiries as to the
type of light they had (e) he was standing in the back of the workers and they would focus the
28
 lights and he would then see in the tank. It can be inferred, though not elicited, that perhaps if
he stood in front he would block the light. (f) He knew that fumes were still coming out the
tank when he asked for the light to be shown inside the tank. (f) I was not impressed with Mr.
Persad's knowledge of safety despite his experience in cleaning the tanks. In his exchanges it
betrayed an ignorance of safety when it comes to such an intrinsic part of the job of using a
light to inspect a man-way.

76. Both Mr. Vincent Rampersad and his son Mr. Rayan Rampersad gave evidence as to their
involvement in the accident. Mr. Rayan Rampersad was a certified safety officer since 2001
with 12 years’ experience in various jobs in the oil industry including the cleaning of tanks.
The company was engaged in tank cleaning operations since inception doing work for
Trintopec, Trinmar, Atlantic LNG, National Petroleum and Petrotrin. As the company works
mainly in the oil industry all the employees undergo a two day safety training course in the oil
industry every year with the company’s consultant Quantum systems 2000 Trinidad Limited.

77. On the day, two tool box meetings were held. First with Mr. Vincent Rampersad and Mr.
Rayan Rampersad and their crew at the company’s site, and then later when they arrived on
the work site. This tool box meeting included Mr. Mohammed but did not include any other of
Trincan’s workers who were present on location during the course of the evening. Mr.
Mohammed identified himself to the gathering as the safety officer. Mr. Vincent Rampersad
briefed the workers on the job and Mr. Rayan Rampersad outlined the safety working and
safety issues. However Mr. Mohammed did not give any safety briefing but outlined
Trincan’s rules and regulations which remain unknown.

78. Although he was identified as Trincan’s safety officer when asked for Trincan’s Risk analysis
or risk assessment he was not given any. Rampersad however prepared their risk assessment
analysis. It is quite instructive as to what they anticipated were the risks and how they would
cater for it. No such analysis was done by Trincan.

79. The risk assessment for each area of activity would identify the possible damage and the
likelihood of its occurring. Fire was a very probable risk with emptying fluid and the internal
cleaning was a very risky job.

29
80. In their testimony both of them:
(b) (a) Confirmed the existence of fumes and gases that were heavy after the man-way
was open and their recommendation was to shut down operations but it was through
the insistence of Mr. Mohammed that the job was continued. It was while the workers
were taking a break Mr. Persad was left at the site together with Trincan’s men who
were setting up the lights for firstly an inspection and then to continue the job. Clearly
Mr. Rampersad did not say to Mr. Mohammed that they could not have done the job or
refused to carry out the work. In my view they too were prepared to get on with it after
having a meal.
(c) In the aftermath they were interviewed by OSHA and the ECA and Petrotrin. They
eventually recovered their equipment save for the diesel pump which was stolen.
(d) The risk assessments conducted by Rampersad which showed meticulous care for the
job and an awareness of hazards. It did not provide for lighting in a open man-way.
However Mr. Persad was left in charge, a man with no training and he was authorised
to direct where the lights can be positioned. It was quite clear that Mr. Vincent
Rampersad was aware of the risk of using the wrong light and was quite prepared to
assume the task of checking the lights before it was used in a dangerous area.
(e) Mr. Rayan Rampersad admitted in cross examination that he was not present when the
conversation about lights took place with Mr Persad. As a safety officer he did not ask
what lights were being used. He confessed he did not know what light was being
supplied when the conversation came up and when it was brought on site he was under
the impression his job as safety manager had ceased. He was quite defensive in the
witness box but he must accept that lighting was an important aspect of the job of
cleaning the tank even though he did not openly admit this.

The expert’s evidence

81. The expert’s evidence was quite useful in determining the cause of the explosion and the
inherent risks associated with the cleaning operation and the provision of lighting. Pursuant to
CPR part 33.7 the Court is entitled to ask the experts questions and the parties are at liberty to
put to the experts joint questions. In this case it was of tremendous use in virtually agreeing to

30
the cause of the explosion. Both Mr Noel and Mr Lequay gave the following joint answers to
important question:
1) “What is a Class 1 Division Area?
This is a location where during normal operations there exists a potential for
explosion and fire because of the presence of flammable gases, vapour or divided
dust.
2) Was the Appleton Area Master 250-400W an unsuitable lighting apparatus for
illumination of the Port of the open man way?
Yes. The lighting apparatus was not intrinsically safe by design for such a location.
Lighting systems classified as Class 1, Division 1, Groups D, E, and F are
generally used in the energy sector for such classified hazardous location. Such
explosion proof equipment will have a metal tag or plate affixed to the housing or
body indicating the approval rating information.
The information leaflet provided by the manufacturer indicated that the lamp
designed for use in Class 1, Division 2, Groups A, B, C, D locations.
3) Is it probable that the heat of the bulb of the lighting fixture caused the fire in the
circumstances of this case, where the light was positioned four (4) feet from the open
man-way?
Yes it is probable however the burn pattern on the wiring of the lamp suggest that
the initial source of the fire/explosion was of an electrical origin due to electrical
sparking.
4) Is there any other method or apparatus to safely illuminate that Class 1 Division Area
1?
Yes, the use of intrinsically safe, explosion proof lighting displaying the
appropriate approval rating on an affixed metal tag or plate. Such tags or plates
indicate the following:
 The Class
 Division
 Group
 Name of approving body e.g. Underwriters, Laboratories.”

31
“Question 3: is it probable that the heat of the bulb of the lighting fixture caused the fire in
the circumstances of this case, where the light was positioned four (4) feet from the open
man way?

1. Class 1 Division 1 or Zone 1 Area

For such hazardous locations, flammable gas, vapor, or mist will be present or
expected to be present for long periods of time under normal operating conditions
in quantities sufficient to produce explosive or ignitable mixtures with air.

The vapour space above the liquid in the top of the tank was a Class 1 Division 1
or Zone 1 Area. Once the man way was opened flammable gases would escape and
be present in the immediate environs of the man way. This area within an envelope
of 3 meters was therefore also classified as Class 1 Division 1 or Zone 1 Area.

2. The Appleton Areamaster 250/400W (240V) integrally ballasted floodlight was

used to provide additional lighting for the work. A review of the Manufacturer’s
Instruction Sheet – 650112-004 reveals that the floodlight is suitable for use in
areas rated Class 1, Division 2, Groups A, B, C and D.

3. Safe areas on chemical and other plants are present where the hazardous gas is
diluted to a concentration below 25% of its lower flammability limit (or lower
explosive limit LEL). So positioning the light further away from the open man way
would result in greater dilution of the flammable gases and vapour and
consequently reduce the risk of fire and explosion. Conversely bringing that
particular floodlight closer to the open man way would increase the risk of fire and
explosion.

4. Class 1 Division 2 or Zone 2 Area is a step up from a safe area. In this zone the gas
vapour or mist would only be present under abnormal conditions (most often leaks
under abnormal conditions). As a general guide for Zone 2, unwanted substances
should only be present under 10 hours/years or 0-0.1% of the time.

32
5. The fire could have been caused by the heat of the lamp if the lighting fixture had
been placed inside the tank with the man way open, once the explosive mixtures
with air were within the flammability range.

6. It must be noted that pictures of the disassembled lamp do not implicate the bulb,
its socket, lens, ballast, lens cover or internal wiring of the actual lamp involved as
possible sources of ignition. They were found to be all intact with no evidence of
burning. However, the local burn pattern on the wiring at the joint between the
lamp and electrical supply indicates that the initial source of the fire/explosion was
of an electrical origin possibly due to electrical sparking. The cable connectors
were severely burnt and fused, while the rest of the wiring within the actual lamp
was left unscathed with no evidence of burning or scorching. See attached
photographs.

7. For making electrical connections to the lamp ordinary cabling and screwed
connectors were used by the electricians. For a classified area in the circumstances
of this case, either TRS (temperature resistant) or armored cabling with a gland
connection to maintain an airtight seal is recommended.

8. Had the lamp remained in its original location i.e. the outer extremities of the dyke
area, adjacent to the bond wall and had the man way remained closed the risk of
explosion and fire would have been reduced considerably and the lamp would have
been safe for use in such circumstances. Opening the man way and bringing the
lamp within an envelope of 4 feet of the open man way required the incorporation
of special measures in the design and construction of the lamp to a higher
classification (Class 1 Division 1 or Zone) to eliminate potential sources of danger.

9. It is also possible that during the handling and movement of the energized lamp
because of the type of connection an arc was produced. Since no cable gland
connection was used here was no effective seal to minimize the presence of
flammable gases and vapours around the electrical connection and to contain the
initial explosion in an explosions-proof enclosure.”

33
82. The conclusions and the recommendations found in the reports of the experts Mr Noel, Mr
Ramoutar and in the Petrotrin report are illustrative of the root causes and the risks inherent in
this enterprise:

A: OSHA findings:
“Lighting system – Perusal of the manufacturer’s specifications indicated that the light
was recommended for class 1 division 2 areas. The fact that the man way was opened
releasing hydrocarbon vapours indicates that the bunded area within 3 metres changed
from a Class 1 Division 2 area to a Class 1 Division 1 area (an area where ignitable
concentrations of gases or vapour are present during normal operations).

Also, the missing glands on the light and inadequate joining of the electrical cord
undermine the electrical classification of the lighting system and therefore were not suited
for the area classification. (Ref. Petrotrin’s report. Section on findings on Appleton flood
lamp retrieved from Trincan and Trincan report, conclusion section on page 6).

The Electrical Foreman Training records did not indicate the receipt of any specialized
training for working in classified areas. The acquisition of such training would have
prepared him with the required knowledge that is required for installation of equipment in
this classified area. Consequently, he would have known that the lighting system was not
suited for this area classification and would have acted accordingly.

Conclusion
7.1 The accident occurred when hydrocarbon vapours emitting from the opened man-
way of the tank were ignited by an energized light which was relocated in close
proximity (within four (4) feet) to the man way. This light, rigged up in a manner
that undermined its recommended area classification, (class 1 division 2), was
moved to an area that became a class1 division 1 by virtue of the opened man way.
This caused the ingress of vapours into the lamp and triggered the ignition.

7.2 The accident occurred because Trincan failed to

 Conduct a suitable and sufficient risk assessment for the job,
 Provide a safe system of work for the job

34
  Provide adequate training for a job of this nature
 Ensure, so far as is reasonably practicable, the safety, health and
welfare at work of all its employees
 And Mr. Ronald Seechan’s improper installation of the lighting system

7.3 The wearing of fire resistant clothing would have minimized the extent of injuries
sustained by the injured workers.

7.4 Trincan was apparently in breach of sections 13A, 6(1), 6(2) (a), 6 (2) (c), 6 (2) (d)
of the OSH Act of 2004 (as amended).”

83. In the cross examination of Mr. Ramoutar, Safety and Health Inspector II, OSH Agency
although he confessed that the primary focus of the report was on Trincan’s responsibility as
occupier/employer the following are important aspects of his evidence:
 He treated Mr. Jairam as a quasi-employee.

 He pointed out that electricians need special training if they are to work in
classified areas.

 He stressed the need for proper risk assessments to be done. He classifies the
nature of this job as hazardous. Those who prepare risk assessment apart from
signing the document must have the expertise and experience to conduct a risk
assessment. This immediately casts doubt over the risk assessment form in which
the names of Michelle Pereira Neil Mohammed Arthur Yearwood appears as none
of them had the experience in tank cleaning nor in providing lights for the purpose
of cleaning a tank yet they purport to pen their names to a detailed risk assessment
form. It is noted that neither Mr. Cukavac nor Mr. Seechan nor Mr Mohammed
makes any mention of preparing any such assessment.

 He recognised some salient facts which point to responsibility falling upon both
Trincan and Rampersad in that first in his opinion in cleaning a tank you must
purge the tank make it inert and then a competent person will evaluate. Second
when you open the man-way you are entering a confined space and that requires a

35
 competent person to make an assessment. Third when Rampersad said that the tank
needed to vent he recognised a hazard. Fourth if the job unexpectedly had to
continue into the night safety practice would dictate that the job is re assessed. So
long as the risk assessment is not planned and there are new hazards the job has to
be re-evaluated.

84. It is of interest to note the contemporaneous findings of Petrotrin as follows:

“CONCLUSIONS
1. TOL had been advised by Oil Transfer on prior occasion that tank #7 was in need of
cleaning. Due to the cancellation of future crude sales from this facility by Petrotrin
Oil Transfer Department, the tank cleaning operation was turned into a rust job
resulting in no scope of work being prepared. This is evidence of poor planning.
2. Due to the fact that Joint Ventures Department was not informed about this operation,
Petrotrin’s Permit to Work System was not activated.
3. Having no experience in this type of operation, Mr. Neil Mohammed TOL’s
Operations Manager, left the planning and execution of the job to the contractor,
Vincent Rampersad & Sons Ltd whom he was advised had the relevant experience.
4. OSHA Act 2006 Part 4 Section 25 (confined space) mandates the complete isolation of
crude tanks before cleaning operations. TOL Tank #7 was not isolated, thus exposing
workers to the risk of hydrocarbon mixtures and noxious vapours. Petrotrin’s Confined
Space Entry Permit, also requires that tanks be completely isolated before cleaning
operations commences.
5. The diesel pump was approximately 25ft from the man-door, and according to
witnesses was not in operation at the time of the incident. This left the two (2) other
potential sources of ignition:
 The flood lamp, which was being moved while energized
 The substandard electrical connections.
According to the electrician’s report they both were not classified for a Class 1
Division 1 zone.
6. The Presence of high concentration of vapours in the area after the man-door was
removed, transformed the area into a Class 1 Div 1 location (see electrician’s report).
36
 7. The flash fire occurred when the lamp was brought into the Class 1 Division 1 Zone.
8. Fire retardant clothing would have reduced the extent of the injuries sustained by the
two TOL employees.
9. Although an Emergency Response Plan existed, certain requirements of the plan, as
listed below, were not in place:
 Emergency numbers placed in a conspicuous position at the facility
 Absence of an industrial water supply
 Identification of a Muster Point
10. A proper Risk Assessment conducted before the start of this operation would have
made everyone aware of the hazards and mitigating measures associated with this
operation including the factor that caused this incident.”

85. Mr. Kenneth Alexander Noel and Mr. Aldwyn Lequay were two experts retained by the
respective companies Trincan and Rampersad. Mr Noel is a safety consultant retained by the
EPA through the request of Trincan to prepare his report and findings and Mr. Lequay an
engineer was similarly asked to prepare his report. Mr. Lequay conducted his analysis only
recently before the trial and his findings are based on the reports that were available. Mr.
Noel’s report was more contemporaneous to the accident operating from as he said “ground
zero”.

86. Under cross examination Mr. Noel confirmed that:

a) the only way one would have to get to the basal sediment is to open the man-way;
b) a work permit would not have been issued by Trincan unless a risk assessment was
done;
c) even during the day because of lack of lighting inside the tank one would still have
to use lighting to clean out the basal sediment in the tank that lighting would of
course be for a Class 1 Division 1 area;
d) he accepts that even if a contractor provides a risk assessment with no provision
for lighting. The occupier should say that you need to deal with the risks associated
with lighting

37
 e) he would expect that if Trincan undertook to provide lighting he would expect that
the people dealing with the lighting are properly qualified
f) not only would lighting have prevented the accident but if they had also stopped
and done a suitable risk assessment as to the use of appropriate lights

87. In his report he concluded as follows:

“6.0 Conclusion
The explosion was initiated by the cable connectors and the flammable hydrocarbons
released from the open man way fuelled the fire. The primary grade source of hazard in
this case was the open tank. While the ignition source of the initial explosion was due to a
failure of the electrical connections of the lamp. Except for specifically certified
intrinsically safe circuits, no electrical equipment should be used in Class, Division 1
hazardous locations.

Protecting electrical equipment in highly hazardous locations requires special

considerations. This includes the use of explosion proof fixtures, intrinsically safe wiring
and circuits and adequately sealed and tight joints designed to avoid explosions. The fire
once started rapidly spread back to the tank and sump and was continuously fed by the
flammables in storage.

7.0 Recommendations.
Making the Work Safe
1. Take time to plan the work.
a. No job should be so urgent that it cannot be performed in the safest possible
manner.
2. All work must be adequately planned prior to commencement.
3. The plan must include:
a. Documented and approved work procedure.
b. Equipment requirements including inspections and certification as necessary.
c. Work site inspection.
d. Consideration for environmental and physical conditions.

38
 e. A JHA identifying job steps, hazards and controls.
f. An emergency plan.
g. Should changes occur, the job activity should cease and any new hazards
identified, eliminated or controlled and all workers advised accordingly prior to
recommencement.
4. Ensure that all jobs are risk assessed and that a Job Hazard Analysis (JHA) is properly
developed, documented and communicated especially for all jobs of significant
hazards.
5. Before equipment is selected it is necessary to classify the degree of hazard and the
extent of the area in which the hazard occurs.
6. All maintenance tasks/activities should be controlled by the company’s permit to work
system.
7. Require from all contractors their respective job plans and job hazard analysis for each
job/task.
8. Extension cords should be adequately maintained and properly rated for the job.
9. All electrical equipment should be formally inspected every 90 days with written
documentation.
10. Voltage (less than 25 volts) intrinsically safety lamps or flashlights should be used in
tanks, vessels, confined work areas, tec.
11. Use only standard explosion-proof type portable lights with adequate wiring and
sealing or an approved lamp/flashlight where flammable substances may be present.
12. Specials “hot work” shall be performed only by qualified electricians and as
authorized by the management.
13. In addition to the PETROTRIN permit system, TRINCAN should develop and
implement its own internal permitting system.
14. Install a wind sock in the tank farm and battery area to indicate wind direction in case
of gas or vapor release.”

88. There was brief cross examination of Mr. Lequay who clearly had no interest to serve. He
confirmed that the gases will ignite upon contact with a heated lamp which can generate heat
of 100 degrees or lesser. He described it as a certainty that it will explode when coming into
39
 contact. He also criticized the joining of the wires which was done under the supervision of
Mr. Seechan.

Mr. Neil Mohammed and adverse inferences

89. It was submitted by Rampersad that adverse inferences should be drawn against Trincan for
failing to call Mr. Mohammed as a witness. Trincan countered by saying that there is no
dispute as to Mr. Mohammed’s role therefore no need to call him and he having been
dismissed from Trincan it was open to any party to have called him as a witness. The Court of
Appeal in Wiszniewski v Central Manchester Health Authority [1998] Lloyd’s Rep. Med.
223 and recently in Ian Sieunarine v Docs Engineering Works Ltd HC 2387 of 2000
Justice Rajnauth-Lee examined the line of authorities on the effect of a party’s failure to call
certain witnesses on the value of the evidence led on behalf of the party. If a party does not
call a witness who is not known to be unavailable and or has no good reason for not attending
and if the other side has adduced some evidence on a relevant matter then in the absence of
that witness, the trial judge is entitled to draw an inference adverse to that party and to find
that matter proved. It is for the Claimant in this instance to establish a prima facie case of
negligence against Trincan and if it might by calling Mr. Mohammed displace that prima facie
case and he omits to adduce that evidence then the inference fairly arises as a matter of
inference of negligence against it.

90. Page 9 Rajnauth-Lee J quoted Brooke LJ’s summary of the principles as follows:
“From this line of authority I derive the following principles in the context of the present
case:
(1) In certain circumstances a court may be entitled to draw adverse inferences from the
absence or silence of a witness who might be expected to have material evidence to give
on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence
adduced on that issue by the other party or to weaken the evidence, if any, adduced by the
party who might reasonably have been expected to call the witness.

40
 (3) There must, however, have been some evidence, however weak, adduced by the
former on the matter in question before the court is entitled to draw the desired inference:
in other words, there must be a case to answer on that issue.

(4) If the reason for the witness's absence or silence satisfies the court, then no such
adverse inference may be drawn. If, on the other hand, there is some credible explanation
given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her
absence or silence may be reduced or nullified.”

91. Gillard J in O’Donnel v Richard [1975] V.R. 916 also stated quite pertinently:
“Looking at the authorities from Blatch v. Archer (1774) 1 Cowp. 63 right up to Earle v.
Eastbourne District Community Hospital [1974] V.R. 722, it may be accepted that the
effect of a party failing to call a witness who would be expected to be available to such a
party to give evidence for such party and who in the circumstances would have a close
knowledge of the facts on a particular issue, would be to increase the weight of the proofs
given on such issue by the other party and to reduce the value of the proofs on such issue
given by the party failing to call the witness.”

92. Ultimately a determination of liability at this trial will be resolved on the roles that both these
companies agreed to play in the cleaning of Tank 7. It was clear that liability in negligence
was being pinned against Trincan as a result of the negligence of its employees Mr. Seechan
and Mr. Mohammed. In particular the following clear allegations were made against Mr.
Mohammed which is material to the determination of the duty of care and breach in relation
to the Jairam claim and Trincan’s counter claim:
 That the work was under the control and supervision of Mr. Mohammed.
 That Mr. Mohammed refused to accept the advice that the tank should be fumed for 24
hours and insisted that the works continue.
 The only person to have negotiated the contract to clean Tank 7 for Trincan is Mr.
Mohammed.
 The lighting Trincan agreed to provide was for the purpose of cleaning Tank 7.

41
93. There is absolutely no evidence from Trincan on these matters and it has starved the Court
with evidence of the operational arrangement by supplying a witness Mr. Cukavac who has no
personal knowledge of the arrangement and was in Canada at the time of the incident and the
events leading up to it. There was no credible explanation given to the Court for the absence
of Mr. Mohammed. Mr. Cukavac confessed in the witness box to knowing where Mr.
Mohammed was presently employed. This is an appropriate case to draw an adverse inference
against Mr. Mohammed and to find even if the Rampersad’s evidence was shaken in cross
examination, that it is sufficient to prove its case against Mr. Mohammed and Trincan.

94. Adverse inferences quite apart it was apparent that there is abundant evidence from all witness
as to the role Mr. Mohammed played and without his attendance the Court is entitled to paint
a picture of his responsibility in the operations undertaken on that day. All the witness have
testified that Mr. Mohammed was (a) Trincan’s supervisor (b) he was present on site to ensure
that the work was executed and to assist the contractor in getting the job done (c) to work out
any problems with Rampersad (d) he took on the responsibility of providing the lighting for
the cleaning of the Tank rather than pay for it (e) directed that lighting be provided without
specifying to his employees exactly what type of light should be used or what it was for (f)
failed to carry out any risk assessment concerning the lighting as to ensure his employees
were suitably trained for the job.

The issues for determination

95. The following issues arise for determination, some of which would have already been
determined based on the foregoing analysis of the evidence:
a. What was the cause of the explosion?
b. Which of the three companies owed a duty of care to prevent loss sustained as a
result of the explosion?
c. Is Mr. Jairam to be considered a quasi-employee of Trincan?
d. Do both Drilling and Trincan owe a duty of care as employers to Mr. Jairam and if
so what is the nature of that duty.

42
 e. Whether Trincan owed a non-delegable duty of care as employer or occupier
which renders it liable even for the negligence of Rampersad as an independent
contractor.
f. What is the content of the duty of care of independent contractors to employees of
its employer?
g. Whether Trincan or Drilling or both committed the tort of breach of statutory duty.
h. Whether the parties were conducting a Joint enterprise and liable as tortfeasors.

The cause of the explosion

96. Before exploring the respective roles of the employers, occupiers, independent contractors in
the joint enterprise a convenient starting point is to first identify the cause of the explosion
and consequent injury to Mr. Jairam and Tank 7. On this aspect there is total agreement. The
explosion was caused by the use of a light which was not suitable for Class 1 Division 1 Area,
whether its heat alone or the faulty wiring an explosion was bound to occur by the contact
between flammable gases and the light provided by Trincan.

97. From the analysis of the evidence above this explosion was caused by the joint action of Mr.
Seechan in assembling and procuring the Appleton, supervising the joining of the chords and
Mr. Persad for requesting the light being brought closer to the open man-way. Both the safety
officer for Rampersad and the operations manager of Trincan failed to conduct a proper
assessment of the use of this light for this purpose. Notwithstanding this cause liability will
only arise where there is the existence of a duty, its breach and consequent damage.

A duty of care
98. The touchstone of liability in negligence is the establishment of a duty, breach and damage.
There was some discussion in this case as to the relevance of the Petroleum Act in
establishing a breach of a statutory duty, Trincan was correct to object to using the framework
of that legislation to impose liability on the Defendants without a specific plea appearing in
the Defence. However one must not lose sight of the social reality and backdrop that this
explosion did occur in the oil industry. Negligence and tort law is if not anything else
important for fulfilling a social purpose of not only compensation and loss distribution but

43
 also the setting and maintaining of standards. It is an intrinsic function of tort law to give
practical definition to the rights enjoyed by members of society. See Honore The Morality of
Tort Law in D Owen The Philosophical Foundations of Tort Law (1995) R Stevens.
Occasions such as these in my view provide an ideal forum to determine the precise scope of
rights and duties as a practical matter.

99. Academics have examined the function of tort law as a means of delivering corrective justice.
Taken to the other extreme Lady Hale in Majrowski v Guys and St Thomas NHA Trust
[2006] UKHL 34 warned of the creation of a compensation culture with the consequent “fear
that instead of learning to cope with the inevitable irritations and misfortunes of life people
will look to others to compensate them for all their woes and those others will then become
unduly defensive or protective..” See Tolminson v Congleton Borough Council [2003]
UKHL 47 “pursuit of an unrestrained culture of blame and causation has many evil
consequences”.

100. In this case Trincan as the owner and occupier of Tank 7 and the contractor Rampersad
put to use a combination of physical plant and human resources towards an economic gain and
seeks to escape liability for the injury sustained by Mr. Jairam and Trincan on the basis that
their conduct is unimpeachable. As a matter of principle and policy the law of negligence in
the oil industry would delineate a cohesive set of rules to govern the relationships between
employees, employers and contractors and those persons to whom a duty of care is owed.

101. The establishment of that duty of care calls for a close examination of the relationship
between persons to determine whether an obligation can be imposed for the benefit of the
other to take reasonable care in the circumstances. Lord Wright in Grant v Australian
Knitting Mills Limited [1936] AC 85 identified the need to define the precise relationship
from which the duty can be deduced:
“All that is necessary as a step to establish the tort of actionable negligence is to define the
precise relationship from which the duty to take care is deduced. It is however essential in
English Law that the duty should be established the mere fact that man is injured by
another’s act gives in itself no cause of action if the act is deliberate the party injured will
have no claim in law even though the injury is intentional so long as the other party is
44
 merely exercising a legal right if the act involves a lack of due care against no case of
actionable negligence will arise unless the duty to be careful exists.”

102. In the well-known line of authority that examined the need to establish a legal framework
in defining that relationship from which the duty is to be deduced beginning with Donoghue v
Stevenson (supra), Anns v Merton London Borough Council [1978] AC 728, Yuen Kum
Yeu v Attorney General of Hong Kong [1988] AC 175 to Caparo Industries Plc v
Dickman [1990] 2 AC 605 the general theme has been to establish a framework of balancing
foreseeability, proximity and policy considerations.

103. Cooke P in South Pacific Manufacturing Co Ltd v New Zealand Security Consultant
and Investigations Ltd [1992] 2 NZLR 282:
“A broad two stage approach or any other approach is only a framework, a more or less
methodical way of tackling a problem. How it is formulated should not matter in the end.
Ultimately the exercise can only be a balancing one and the important object is that all
relevant factors be weighed.”

104. Charlesworth on Negligence15:

“In broad summary the leading cases indicate that the law favours an incremental
approach to analysing allegedly negligent conduct in most new factual situations
that is on which build upon and proceeds from past decisions. To the extent that
decision is required in a novel or borderline case where the duty question is not
clearly covered by authority the usual analysis will be to ask whether the harm to
the Claimant was foreseeable, whether the parties were at the material time in a
relationship of proximity or neighbourhood and whether it is fair just and
reasonable taking into account relevant policy considerations that a duty of care
should be recognised in all the circumstances for the case... Furthermore whatever
test is applied it is always necessary to ask not simply whether the defendant was
under a duty of care but a duty of care in relation to what.”

15 th
12 Ed page 28, para 2-25

45
105. The foundational principles of Donoghue v Stevensons to Caparo recognize that this duty
of care is contextual. It may in certain cases be necessary to ask whether the duty exists in
relation to the damage or the injury sustained. Whether the risk of damage to employees by an
explosion was ever in the contemplation of Trincan and Rampersad in my view is quite obvious.
For Rampersad they examined the risk of fire in a risk assessment. For Trincan, Mr. Seechan
was well aware of it. However a troubling aspect in this case is the extent to which Drilling
owed a duty of care to Mr. Jairam on the facts in this case as an employer or whether Trincan
assumed that responsibility as a quasi employer or temporary employer.

Duty of care- the employer

106. A wider question of social policy underpins the imposition of liability on employers in
negligence for their employees. The recent cases of Various Claimants v Catholic [2013] 1
All ER 670, JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2013]
QB 722 demonstrate that aspect of the law of tort and in particular that vicarious liability is
“on the move”. In searching for a principle Lord Phillips dispelled any myths of liability
based on cohesive rules in confessing that “the doctrine of vicarious liability has not grown
from any very clear logical or legal principle but from social convenience and rough justice”.
Professor Glanville Williams’ rather scathing view in “Vicarious Liability and the Master's
Indemnity” (1957) 20 MLR 220, 231 was:
“Vicarious liability is the creation of many judges who have different ideas of its
justification or social policy, or no idea at all. Some judges may have extended the rule
more widely or confined it more narrowly than its true rationale would allow; yet the
rationale, if we can discover it, will remain valid so far as it extends.”

107. On the facts, Drilling was the employer retaining Mr. Jairam on a contract as a temporary
employer, and paying his wages. He was assigned to Trincan, fell under its control and
supervision, for which it paid Drilling a monthly figure for the service. Mr. Jairam was
transported in a Trincan vehicle, worked out of their offices, worked under the supervision of
their workers and worked together with “Trincan men” serving the production and economic
needs of Trincan. He was much a part of the business and enterprise of Trincan if not of its
electrical department. Drilling had no such department. It is a renter of equipment and labour.
It may have well had no face save for a shingle on the door and operated out of the same
46
 offices of the oil service provider. There are perhaps many instances where such a general
employer can owe Mr. Jairam a duty. But this is not one of them it is all to be adjudged agents
against a factual matrix.

108. In my view the law on the borrowed servant and the law’s guidance on the boundaries of
vicarious liability in relation to “two masters” assist in establishing whether a duty of care
exists at all in this instance between Drilling and Mr. Jairam. See Fulllowka v Pinkerton of
Canada Ltd [2010] SCC5.

109. In my view the overarching question can be re-cast by determining simply “who is
responsible for Mr. Jairam’s safety and welfare?” Is it the general employer or temporary
employer or as Viasystems16 suggests both!

The duty of care to the borrowed employee: the doctrine of employment pro hac vice
110. The Latin phrase pro hac vice literally means ‘for this occasion’. The doctrine has been
discussed in a line of cases recently finding extensive juridical treatment in Viasystems and
Quest17. In the Commonwealth it was discussed in the Australian judgments: Transtate Pty
Ltd v Rauk [2002] NSWCA 222 and in Supreme Court of Victoria in Deutz Australia Pty
Ltd v Skilled Engineering Ltd and Another [2001] VSC 194.

111. If Mr. Jairam was at the time of the explosion on “loan” to Trincan it can be said that Mr.
Jairam is the employee of Trincan pro hac vice and Trincan is the “temporary employer”. In
those circumstances the employer is not liable if the employee is pro hac vice the servant of
the temporary employer. See Charlesworth and Percy on Negligence 8th Ed. At 10-84.

112. The principal authority of Mersey Docks and Harbour Board v Coggins and Griffith
Ltd [1947] AC 1 considered the question of the liability of a temporary employer in terms of
insisting on an onerous burden on the permanent employer (in that case the Harbour Board),
to demonstrate that the worker (a crane driver), had been “transferred” to another employer,
who were stevedores under a contract of hire. Although the stevedores had the day to day
control of what the driver was to do the driver still retained the power as to how the job was to

16
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ. 1151; [2005] 4 All E.R. 1181
17
Colour Quest Ltd v Total Downstream UK 2010 EWCA and 2009 EWHC
47
 be done. A key signpost which has been consistently utilized over the years on this question of
who is an employee, is the concept of “control”. The concept of controlling the duties, the
fate, the performance of the worker will determine the extent to which the duty is now cast on
the temporary employer to take care of that worker’s safety and welfare. Lord Denning MR in
Denham v Midland Employer’s Mutual Assurance Ltd [1955] 2 All ER 561:
“Much of the difficulty which surrounds this subject arises out of the 19th century
conception that a servant of a general employer may be transferred to a temporary
employer so as to become for the time being the servant of the temporary employer.....In
none of the transfer cases which have been cited to use had the consent of the man been
sought or obtained. The general employer has simply told him to go and do some
particular work for the temporary employer and he has gone. The supposed transfer, when
it takes place, is nothing more than a device - a very convenient and just device, mark you
- to put liability on to the temporary employer; and even this device has in recent years
been very much restricted in its operation. It only applies when the servant is transferred
so completely that the temporary employer has the right to dictate, not only what the
servant is to do, but also how he is to do it … Such a transfer rarely takes place, if ever,
when a man is lent with a machine, such as a crane or a lorry; nor when a skilled man is
lent so as to exercise his skill for the temporary employer. In such case the parties do not
contemplate that the temporary employer shall tell the man how to manipulate his machine
or to exercise his skill. But a transfer does sometimes take place in the case when an
unskilled man is lent to help with labouring work: see Garrard v A.E. Southey & Co
[1952] 2 QB 174; [1952] 1 TLR 630; [1952] 1 All ER 597. “

113. This principle of imposing liability on the person who has “control” is consistent with the
philosophical underpinnings of the duty of care, “the right of control carries with it the burden
of responsibility.” Per Denning LJ. Morris v Breaveglen ltd [1993] 778.

114. Ashley J in Deutz gives a very helpful detailed analysis of the history and development of
the doctrine of vicarious responsibility distinguishing two possible situations. One is where
the loaned employee has injured a third party, and the issue raised is whether the temporary
employer or the general employer should be held vicariously liable for the injury. The second

48
 is as it is with Mr. Jairam, where it is the loaned employee who has been injured, and the
question is whether the temporary or the general employer should provide compensation for
the injury.

115. Control over the employee is seen to be a key ingredient in imposing responsibility on that
person to take care for the employee’s safety and welfare. In the first situation, on the question
of vicarious liability authority establishes that the courts may sometimes regard the temporary
employer as the worker's employer pro hac vice and impose vicarious liability or the
employee's actions on the temporary employer. This will exonerate the general employer from
its usual obligations. However, it has been held that there is a very heavy burden of proof on
the general employer in these circumstances, and what must be shown is that there is a
transfer of the right not merely to say what work should be done but also the way in which the
work must be done.

116. In the second situation where the issue is who should bear responsibility for a personal
injury suffered by the worker, Ashley J points out that the courts have sometimes been
prepared to find a relationship of employment pro hac vice on a lesser degree of proof, to
ensure that a worker will not miss out on compensation.

117. In Transtate Pty Ltd v Rauk, Mr. Rauk had been performing work as an employee, had
then been asked by the company Transtate to resign and set up a company, and then to go
back to work for Transtate as a ‘labour hire worker’ employed by his family company. His
working conditions effectively remained precisely the same as those that applied when he was
an employee, and the court held that the company still owed him a duty of care which was
effectively the same duty it owed him when he was an employee. Again the question of
liability follows control.

118. The Court of Appeal in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern)
Ltd [2005] EWCA Civ. 1151; [2005] 4 All E.R. 1181 referred to the Court by Counsel for
Trincan is particularly instructive in continuing this search for a principled approach to
imposing a duty of care on a “temporary” employer. In that case when faced with the question
as to who could be considered to be the employer where the employee's regular employer

49
 loaned out the employee for a specific task to a temporary employer, the Court held it
conceivable in principle that both employers should be liable. The claimant employed
contractors to install air conditioning in their factory. These contractors sub-contracted
ducting work to the temporary employer. The temporary employer contracted with the regular
employer for the provision of fitters on a labour-only basis. An accident was caused by the
negligence of a fitter's mate loaned under this arrangement, flooding the claimant's factory.
The regular employer retained overall control as to how the employee worked; the temporary
employer supervised the particular job.

119. The Court of Appeal concluded that as a matter of logic it was not necessary to conclude
that either one or the other was the sole employer for the purposes of vicarious liability. On
the facts, as they both exercised sufficient control, they were both employers for the purposes
of vicarious liability. For the law to develop to such a stage where an employee can have at
one time two employers demonstrates the strides being made in the law of employer’s liability
for the sake of the employee’s safety and welfare.

120. May L.J. saw the relevant test as one of control: who was entitled to give orders as to how
the work should or should not be done. Without a contract between the temporary employer
and the employee, such control was as a matter of legal entitlement necessarily indirect (at
[46]-[47]). Rix L.J., saw control as a possibly sufficient factor, regarded it as demonstrating
the employee's degree of integration into the employer's enterprise, which could be shown in
other ways.

121. This notion of the imposition of a duty to take reasonable care in quasi relationships was
authoritatively examined recently by Ward LJ18 in the difficult questions of the liability of the
Catholic Church for the offensive sexual acts of priests with whom there was no contract of
employment in law. In that case it examined the nexus of the priest to the Church to determine
its liability for the wrongful conduct of the quasi employee. However the discussion is equally
pertinent where a quasi-employee is injured in the course of his employment to determine

18
JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ. 938

50
 whether the quasi employer or general employer owed a duty of care, and if so a duty to do
what?

122. Again the social underpinnings of policy in determining the duty of care in such quasi
relationships are relevant as discussed in Bazley v Curry which examined the social utility of
vicarious liability. McLachlin J in Bazley v Curry 174 DLR (4th) 45 , para 27:
“A focus on policy is not to diminish the importance of legal principle. It is vital that the
courts attempt to articulate general legal principles to lend certainty to the law and guide
future applications. However, in areas of jurisprudence where changes have been
occurring in response to policy considerations, the best route to enduring principle may
well lie through policy. The law of vicarious liability is just such a domain.”

123. At the other extreme is Lord Hobhouse whose view is expressed in Lister v Hesley Hall
Ltd [2002] 1 AC 215, para 60:
“I do not believe that it is appropriate to follow the lead given by the Supreme Court of
Canada in Bazley v Curry … The judgments contain a useful and impressive discussion of
the social and economic reasons for having a principle of vicarious liability as part of the
law of tort which extends to embrace acts of child abuse. But an exposition of the policy
reasons for a rule (or even a description) is not the same as defining the criteria for its
application. Legal rules have to have a greater degree of clarity and definition than is
provided by simply explaining the reasons for the existence of the rule and the social need
for it, instructive though that may be.”

124. Professor Richard Kidner's article “Vicarious liability: for whom should the ‘employer’ be
liable?” (1995) 15 LS 47 is useful. He suggests, at pp 63–64, that the following in some mix
or other are appropriate signposts which may point to vicarious liability and may summarize
the legal principles in play in imposing liability on a temporary employer in favour of the
“borrowed” servant:
“(1) Control by the ‘employer’ of the ‘employee’. Traditionally this has meant asking
whether the employer can control not only what is done but also how it is done. This
makes little sense and the variant of asking whether the employer has the legal right to
control is merely circular. Rather this factor should look at the degree of managerial
51
control which is exercised over the activity and this may depend on how far a person is
integrated into the organisation of the enterprise. At the one end of the spectrum a
contractor will merely be asked to achieve an end result, or more ambiguously the
specification of that end result may be so detailed as to amount to detailed control over
how that result is to be achieved. At the other end of the spectrum, it is the person who is
actually controlled in every detail of how things are to be done. Another way to look at the
control test is to examine the degree to which the ‘employee’ is accountable to the
employer: in other words to what extent is he subject to the managerial procedures of the
employer in relation to such matters as quality of work, performance, productivity etc?

“(2) Control by the contractor or himself. This is not about Mr. Newall who took no orders
from anybody [the Mersey Docks case [1947] AC 1] but is rather an element of the
entrepreneur test and involves looking at how the contractor arranges his work, his use of
assets, his payment etc.

“(3) The organisation test (in the first sense of how central the activity is to the enterprise):
This involves the question, how far the activity is a central part of the employer's business
from the point of view of the objectives of that business. This element flows from the need
to establish who it is that is engaging in the activity and the more relevant the activity is to
the fundamental objectives of the business the more appropriate it is to apply the risk to
that business.

“(4) The integration test (i.e. the organisation test in the second sense of whether the
activity is integrated into the organisational structure of the enterprise). This also looks at
the traditional test of whether the function is being provided for the business or by the
business and is also a part of the entrepreneur test for it asks whether the activity is part of
the enterprise's organisation or of some other organisation. A service may be absolutely
essential to the business or wholly peripheral to it, but if it is being provided by what is in
effect a separate business it would be appropriate to apply the risk to the enterprise. It is a
factor of both who is engaging in the activity and also who stands to gain or lose from it.

52
 5) Is the person in business on his own account (the entrepreneur test)? This is not really a
separate test as it is intimately involved in the other four, but it needs to be highlighted so
that the burden of proof is right. For the purposes of vicarious liability a person should not
be regarded as an independent contractor simply because according to the technical
requirements of employment law he is not an employee. Rather it needs to be established
that he is actually behaving as an entrepreneur and is taking the appropriate risks and has
the possibility of resulting profits. Thus even if a person's activity is peripheral to the
enterprise and even if he is not for managerial purposes regarded as part of the
organisation, a person could still be regarded as an ‘employee’ if it is clear that in relation
to that business he is not acting as an entrepreneur. Agency workers would be an
example.”

125. A Control, Organization, Integration, Enterprise, Business test are all practical matters to
determine the true relationship of employer and employee outside the four corners of a
contract. One of the few cases in recent years where an effective ‘temporary transfer’ of
employment has been held to have taken place was Hawley v Luminar Leisure Ltd and
Others [2006] EWCA Civ 18. A ‘bouncer’ at a club, supplied by a security company, was
held to have effectively been so integrated into the workplace at the club, and to have been so
completely under the control of the club management, that he had become a club employee
(and hence the club was vicariously liable for an assault he had committed). In Biffa Waste
Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWCA Civ. 1257, the Court of
Appeal found that the high degree of compelling evidence of a transfer of control to the
‘temporary’ employer had not been established. See also Nelhams v Sandells Maintenance
Ltd [1996] P.I.Q.R. P52 (CA).

126. Finally the UKSC re-examined the issue in the complex litigation arising out of an
explosion of an oil tank in Colour Quest Ltd v Total Dowstream UK 2010 EWCA and 2009
EWHC. It is a practical illustration of the working of the doctrine of pro hac vice. The cause
of the explosion seems not to be in any real doubt. The depot stored fuel that was pumped into
the tanks from a number of different sources. On the night before the explosion fuel was being
pumped into Tank 912. But the gauge that was meant to measure the level of the fuel had

53
 become stuck at 96 per cent, as a result of which fuel continued to be pumped into the tank
until it started to overflow. Another mechanism that was intended to provide a ‘back-up’
switch to cut off the fuel when the tank became too full had been disabled following testing,
and therefore did not operate. What was unexpected seems to have been the fact that the fuel,
when it began to flow out of the tank, did so not as a liquid but as a fine white mist, which
gradually accumulated around the site. Finally the explosion occurred at a moment when the
layer of mist had reached about 7 metres, through an ignition source of some sort19.

127. Twenty premises were completely destroyed and another 60 were rendered unusable.
Colour Quest Ltd, the ‘lead claimant’, was one of these many local businesses. The
companies, Total and Chevron, ran the depot generally as part of a joint venture called
Hertfordshire Oil Storage Ltd (HOSL). It was agreed that ownership of the joint venture was
divided 60 per cent to Total and 40 per cent to Chevron. The one issue at stake in the trial
before Steel J was as between Total and Chevron, which company was the employer of the
careless workers, and hence bore primary ‘vicarious’ responsibility20.

128. The main employee whose actions were identified as causing the explosion was a Mr.
Nash, the Pipeline Supervisor. It was not disputed that Mr. Nash had a general contract of
employment with Total. Steel J adopted the House of Lord’s decision Mersey Docks, to rule
that the essential issue in determining whether there had been a temporary transfer of
employment was the identity of the person who has the right to control the employee's method
of work: that is to say not the nature of the work but the manner in which it was to be
undertaken.

129. The question of vicarious liability in Colour Quest was resolved on the more orthodox
approach of determining which of the two possible ‘controlling parties’ was the employer21.

19
The precise nature of which was the only real mystery, although - because it could have been any of a number of
ordinary events, including some car engines which apparently began ‘racing’ when covered in the mist - identifying
the final source of ignition was not seen to be crucial.
20
And so the lion's share of the apportioned damages.
21
“All the staff at the HOSL site were engaged and paid by Total. They were all subject to Total's promotion and
disciplinary arrangements. Their place of work was allocated by Total. All these matters were undertaken without
any discussion with, let alone approval of, the HOSL board. All instructions relating to the safe operation of the
54
130. Locally I was able to obtain the judgment of Jamadar J (as he then was) who examined the
role of the quasi employee in Phillip v Gulf Marine Service Limited; Moze East Coast
Limited H.C.S. 924/1995:
“However, in my opinion the Plaintiff was not a mere invitee of the First Defendant. The
unchallenged employment history of the Plaintiff (as contained in the evidence of Paul
Dyson and the agreed documents) demonstrates, that the Plaintiff was initially introduced
to the worksite on a subcontract between the First Defendant and a company called Trevi
Ltd, who were sub-contracted to construct the tank where the accident occurred, and who
used another company, Aliva Stump, as its labour supplier. The Plaintiff was initially
under the supervision and control of Trevi and paid by them via Aliva Stump. In about
May to July, 1997, the First Defendant and Trevi came to an agreement whereby the First
Defendant would take over ‘the direct responsibility for the labour’ (evidence of Paul
Dyson, the project civil site manager for the construction of the subject tank). By this
agreement, the First Defendant took over the direct responsibility for the control and
manner of execution of the supervisory work of the Plaintiff on the construction of the
subject tank. The First Defendant was responsible for determining how the project was
carried on, laying out the work schedule of the Plaintiff and determining what he did, and
when and how he did it. In fact, the First Defendant by its agreement with Trevi selected
the employees of Trevi that it wanted to retain and became responsible for providing the
remuneration package for these workers (including the Plaintiff). In my opinion, based on
the above facts and on the authorities of O’Reilly v Imperial Chemical Industries Ltd
(1955) 2 AER 567 and (1955) 3 AER 382 C.A., and Gibb v United Steel Ltd (1957) 2
AER 110, the duty of care owed to the Plaintiff by the First Defendant was akin to that
owed to a quasi employee. The standard of care required was therefore higher than that
owed by an inviter to an invitee and closer to that owed by an employer to an employee.”

Buncefield site were promulgated by Total in accord with standards adopted by Total for all terminals which it
regarded as being operated by Total. It was Mr White who was responsible for identifying tank filling as a critical
task and creating any necessary work procedures. These were to be audited every 18 months by Total head office
staff. I am satisfied that Total had control of tank filling operations …”

55
 As the authorities cited above explain, the relevant test is: who has the right at the
particular time to control the manner of the execution of the acts of the servant. And, as I
have explained above, in my opinion the First Defendant enjoyed that right and therefore
owed the corresponding duty. That responsibility, as the authorities also show, was to take
reasonable care for the safety of the Plaintiff, by establishing and enforcing a safe work
site and a safe system of work – virtually the same duty owed by an employer to an
employee.”

131. Jamadar J re-emphasizes the right of “control” as an axis to impose liability and as a
matter of principle the signposts of enterprise, integration, entrepreneurship, business are all
shades of determining in real terms who has control over the worker.

132. The Claimant in his submissions seek to hold Drilling liable as an employer based on a
technical reference to the pleadings, which in my view is unfounded having regard to
Drilling’s defence. However in any event on the facts of this case Drilling was so far removed
from the control over Mr. Jairam that it cannot be asserted in any practical terms that Mr.
Jairam was an employee of Drilling rather than Trincan. The imposition of dual liability as
suggested in Viasystem is both unnecessary as a matter of principle or policy in this case and
is at odds with the facts of this case. I cannot see as a matter of principle and policy how
Trincan can deny that they are responsible for Mr. Jairam’s safety and welfare. If as Trincan
submitted he is considered a “Drilling boy” must the law treat him as an outcast in Trincan’s
enterprise, the shunned Samaritan? Even there in those cases when Lord Atkin famously
made the biblical reference to develop the ‘neighbour’ principle, those references were
societal issues of the extension of a duty of care to those who one would not ordinarily view
as a neighbour or who was regarded as an outcast.

133. Drilling in my view was in the business of supplying labour to other employers. By that
contractual arrangement its duty would extend only in so far as is consistent with its
contractual obligation. For example one can envisage liability on the part of Drilling should
the worker not be transported safely from Drilling to Trincan to take up his duties where
Drilling is responsible for his transportation or where Drilling was also involved in the tank
cleaning exercise. This does not arise in this case but is an example of the type of duty that
56
 arises for general employers and emphasizes the point that the imposition of a duty of care is
fact specific and is to be worked out as a practical matter.

134. For practical purposes the written contract of Mr. Jairam was plainly a convenient device
to maintain a pool of workers or a labour force which will be assigned to Trincan generally.
For Trincan’s purposes Mr. Jairam was under their control, he was part of their enterprise, he
was integral to their business, Mr. Jairam exercised no control over the manner in which he
carried out his task and indeed was not engaged in any entrepreneurial exercise but was a
“servant” of Trincan. He was a trainee under the guidance of Mr. Seechan who directed him
on the day and provided his instructions and assessed his skill and ability. Drilling had
absolutely no idea of the details nor the nature of the work that he would be asked to do by
Trincan. Mr. Jairam looked forward to working with Mr. Seechan. He was an understudy of
Mr. Seechan22.

135. Trincan therefore owed Mr. Jairam a duty of care to prevent damage as a result of
engaging in this hazardous activity and Drilling did not. The content of Trincan’s duty of care
would be the same as any employer for their employee to take reasonable care for his safety;
to provide a safe place and system of work, to employ competent employees and supervision,
to provide and maintain adequate plant and appliance. See Wilsons and Clyde Coal and
English [1938] AC 57, Stokes v Guest [1968] and Barber v Somerset County Council
[2004] Charlesworth on Negligence 11th Ed. Chap 10 10-18 to 10-83.

136. In the absence of a duty of care in common law, the claim against Drilling for common
law negligence fails.

Non delegable duty

137. The employer’s duty of care, in this case Trincan, to Mr. Jairam as its employee pro hac
vice is personal and not delegable. It must be accepted by the parties that the task of cleaning
Tank 7 was a dangerous and hazardous job. A simple review of the risk assessment form will
highlight the potentially catastrophic events that can occur in the course of that task. As the
experts agree the provision of lighting in an area of highly concentrated gases which in this

22
There was no cross examination of Drilling’s witness on this issue.

57
 case was bound to occur once the man-way was opened is inherent with risk and danger.
Although generally a person is not responsible for the negligence of an independent contractor
employed by him, such is not the case where the work involved is an extra hazardous and
inherently dangerous operation creating special risk of harm. See Municipality of County of
Cape Breton v Cahpells Ltd [1963] 36 DLRR (2d) Holiday v National Telephone
Company [1899] HCA 996 of 1990 Raymond Roopnarine v Moze East Coast Ltd HCS
924 of 1995and Peter Granger v Neptune Inspection Services HCA 3229 of 1989.

138. It follows from this that it would be Trincan and not Drilling which would owe a non
delegable duty of care. It would therefore not be sufficient for Trincan to say that it retained
the services of an independent contractor and that would relive it from owing a duty of care.
“In the case of Honneywell and Stein Ltd v Larkin Bros it was held by the Court of
Appeal that where a person employs an independent contractor to do work which involves
special danger to another’s premises, he (the employer) must take reasonable precaution to
see that the work does not cause damage to the premises. If the employer fails to take such
precautions he will be held liable. Given the nature of the operation to be performed by the
First Defendant (the independent contractor) and the risk of the divers involved it would
seem that the second Defendant was bound to stipulate in the contract with the first
Defendant not only that reasonable precautions be taken to avoid any danger to the
workers of the first named Defendant but was under a duty to ensure that those
precautions are strictly observed failing which the second Defendant would be held
responsible for the consequences.” Per Ventour J in Peter Granger HCA 3229 of 1989

139. Similarly given the nature of the operation to be performed by Rampersad which would
carry a great degree of risk, it was not sufficient for Trincan to shut its eyes and wish harm
away. It was under a duty to ensure that reasonable precautions are taken for the safety of its
workers. Moreover in this case Trincan did more than simply retain Rampersad as a contractor
it maintained at all times control over the work site by having present Mr. Mohammed
working with the employees of Rampersad, attending their tool box meeting, dispatching his
own crew of electricians, conferring with Rampersad on the method of work such as purging
the tank and directing that the work be continued into the night.

58
140. It is indeed an active role undertaken by Trincan consistent with its duties as the occupier
and owner of Tank 7.

Occupier’s Liability
141. There is no dispute that Trincan was in operational control of Tank 7. See Ana Barry
Laso v THA CV 2008-02722.
“In practice anyone is likely to be regarded as an occupier for these purposes if he has
sufficient degree of control over premises to be able to ensure their safety and to
appreciate that a failure on his part to use care may result in injury to a person coming on
them. The Defendant need not have entire control; he need not have exclusive control.
Equally there may be more than one occupier of the same premises under a duty of care
dependent on his degree of control”. See also Clerk and Lindsell on Torts (17th Ed.): Per
Jones J.

142. The content of this duty is to take such care as in all the circumstances of the case as is
reasonable to see that the visitor will be reasonably safe in using the premises for the purpose
for which he is invited or permitted by the occupier to be there. Both Mr. Seechan and Mr.
Mohammed failed to make the simple enquiry as to the use of their lights for the job at Tank
7. The work site was compromised by the venting of the tank when the man-way was open. It
was reasonable in those circumstances to ensure that those using the site would be reasonably
safe when Trincan through its employees mobilized and energized the Appleton Areamaster
lamp.

The duty of the independent contractor

143. In my analysis of the evidence above, the contractor Rampersad is not free from blame in
causing this explosion. Whenever a contractor is carrying out operations on land he is under a
duty to use reasonable care towards all those who may be affected by his work. See Savory v
Holland [1964] 3 AER 20 per Diplock LJ. It is to be noted that the evidence reveals that
Rampersad had the requisite skill and expertise in cleaning large tanks such as Tank 7. The
failure to cater for a risk assessment for lighting was as I have analyzed in the evidence as a
result of the work being done as a joint enterprise with Trincan supplying the lighting. This
notwithstanding Rampersad was fully aware of the risks involved in using an energized light

59
 source in an environment such as it created by opening the man-way. Mr. Persad saw the
gases coming out. His safety officer was advising that the tank be vented for 24 hours. His
managing director asked his workers to take a break. No assessment was done of the lighting
provided by Trincan. No risk assessment was now done for the new categorization of risk
created by the open man-way. Rampersad breached its duty of care to Mr. Jairam and to
Trincan when it directed that the unsuitable light be brought closer to the man-way.

Joint enterprise
144. I mention finally in this analysis the reality that what both Trincan and Rampersad had
engaged in was a joint enterprise assuming different roles. Trincan acting in its role as
employer, occupier contracting to supply lighting for the purpose of cleaning Tank 7 and
Rampersad contracting to perform the various tasks of purging, gas freeing and cleaning Tank
7. Inspecting the confined space of Tank 7 which was unlighted being an intrinsic part of the
job lighting would have been necessary. In any event as Trincan requested Rampersad to work
into the night, lighting was essential for the work to continue. One could not have completed
the task without the other. Mr. Mohammed and Mr. Rampersad were counterparts on site. Mr.
Lequay suggests that once the man-way was open the entire area within the bund was
compromised. It mattered not to him that the light was brought within a few feet of the open
man-way, the change in environment called for a new assessment of the risk of continuing the
job.

145. Justice Jamadar (as he then was) in Phillip v Gulf Marine (ibid) similarly held both the
employer of the plaintiff and the operator of a crane on a platform liable in negligence. He
analyzed duty and breach in a joint enterprise this way:
“In my opinion the task of lifting the hoppers from the Sea Shuttle onto the Teak Bravo
Platform involved a joint enterprise. That is to say both the first and second Defendant
was acting together for the common purpose of lifting the hoppers from the Sea Shuttle to
the Teak Bravo Platform. They were engaged in this co-operative and joint operation
when in the course and furtherance of which at least one of them committed an act of
negligence. In these circumstances their joint control of the operation makes them jointly
liable. That is to say the negligence of one is the negligence of the other...while it may be

60
 that the primary responsibility for shackling fell to the first Defendant and primary
responsibility for the extension and retraction of the cable from the crane fell to the second
defendant each had to rely on the other to ensure that the common purpose was achieved.”

146. It is possible to find that parties are engaged in a joint enterprise yet fulfilling different
roles. In this case Trincan, supplying the lighting and Rampersad cleaning. Both are
interdependent to the extent that each act impacts upon the safety of the entire enterprise of
cleaning Tank 7. In this case both parties were negligent in not providing a safe system of
work and competent staff and it is not necessary to impute the negligence of one to the other.

Breach of Statutory Duty

147. The Claimant contends that Trincan and Drilling are in breach of their statutory duty
under the OSH Act. This is particularly important as I have already determined that Drilling is
not liable to the Claimant in common law negligence. Can Mr. Jairam now reach for the
statute to impose liability on his employer strictly?

148. Drilling submitted that it was not the employer of Jairam and so the statute is irrelevant.
Trincan submitted that a decision on this matter is not relevant as the real issue for the Court
is to determine who was responsible for the movement of the light since “it was a negligent
act which caused damage”. As such there is no need to consider the issue of breach of
statutory duty.

149. This is not an accurate statement of the law. There are two different standards of care one
imposed by the common law and one imposed by statute. Breach of a statutory duty would
call for an interpretation of the relevant statutory provisions to determine whether the
employer is in breach of his duty of care. As Des Iles in Skeete v Electroplaters [1976] 26
WIR 266 pointed out in reference to a claim for breach of statutory duty under the Factories
Ordinance: “The court is fully conscious of the purpose of the legislation and the mischief it
seeks to remedy in its efforts to protect human beings from the lethal and deleterious effects
of machinery.”

61
150. It is quite possible therefore for an employee to succeed in a claim of common law
negligence and fail in his claim in breach of statutory duty. One would perhaps question the
utility of considering further a breach of statutory duty if indeed the common law claim
succeeds. In my view pursuit of a breach of statutory duty claim may be a matter for creating
a new species of case perhaps for some punitive form of damages to give life to absolute
duties under the statute and to insist on and develop a culture of compliance with regulatory
legislation.

151. I am grateful to Senior Counsel for the second Defendant who drew to my attention the
case of Jamal Mohammed v Port Authority of Trinidad and Tobago CV 2011-1833 which
held that the High Court had no jurisdiction to give relief in tort for the breach of a statutory
duty under the OSH Act. It is suggested that persons affected by breaches of the Act are left to
their remedy in the Industrial Court and have no claim in tort. I have not unearthed any of our
local decisions on the applicability of the OSH Act and there are indeed several decisions
which considered breach of statutory duty simpliciter under those provisions without
considering that issue23.

152. Taking up from Des Iles’ observation, the purpose of the Factory Ordinance now repealed
and replaced by OSH Act is to protect employees from the lethal and deleterious effects of
machinery and an unsafe place and system of work. The OSH Act spells out a compendium of
duties on an employer to safeguard the welfare of the health and safety of its employees. The
purpose of the tort of breach of statutory duty is the right to insist on the performance of that
duty.

153. As Lord Wright said: “The statutory right has its origin in the statute, but the particular
remedy of an action for damages is given by the common law in order to make effective, for
the benefit of the injured plaintiff, his right to the performance by the defendant of the
defendant’s statutory duty... It is not a claim in negligence in the strict or ordinary sense.” See
London Passenger Transport Board v Upson [1949] A.C. 155 at 168.

23
Abraham v Attorney General of Trinidad and Tobago CV2011-03101; Chandler v National Flour Mills HCA 393 of
1998; Rampersad v Rentokil (Trinidad) Limited HC 1388 o 1995

62
154. In Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 at 177, 178. “I
do not think that an action for breach of a statutory duty such as that in question is completely
or accurately described as an action in negligence. It is a common law action based on the
purpose of the statute to protect the workman, and belongs to the category often described as
that of cases of strict or absolute liability. At the same time it resembles actions in negligence
in that the claim is based on a breach of a duty to take care for the safety of the workman. The
cause of action is sometimes described as statutory negligence and it is said that negligence is
conclusively presumed.”

155. As I pointed out earlier in this judgment there are issues of social policy underpinning the
imposition of a duty of care in common law negligence. So too is it with an action for tort of
breach of statutory duty. So that whether the statute is penal in nature or provides a remedy
for a breach must not detract from the question of duty stemming from relationships and the
policy consideration of protection persons whom the statute is designed to protect. The first
question that a court must therefore determine in a claim for the tort of breach of statutory
duty is whether any obligations are imposed on the employer or whether the employee is a
member of the class of persons whom the statute is designed to protect. Halsbury’s Laws of
England 5th Edn, Volume 1(1). Para. 186 “If a right of action is found to exist the Claimant
must prove that (1) he is a member of the class of persons whom the statute is designed to
protect, that (2) the damage suffered is within the scope of the mischief against which the
statute is aimed, that (3) the Defendant is in breach of the statutory obligation (which may be
strict, sometimes described as absolute, or simply a duty to use due diligence), and that (4) the
breach of duty caused damage to the Claimant.”

156. The basic proposition is that in the ordinary case a breach of statutory duty does not, by
itself, give rise to any private law cause of action. However, a cause of action will arise if it
can be shown, as a matter of construction of the statute, that the statutory duty was imposed
for the protection of a limited class of the public and that Parliament intended to confer on
members of that class a private right of action for breach of the duty. There is no general rule
by reference to which it can be decided whether a statute does create such a right of action but
there are a number of indicators. If the statute provides no other remedy for its breach and

63
 Parliamentary intention to protect a limited class is shown, that indicates that there may be a
private right of action since otherwise there is no method of securing the protection the statute
was intended to confer. If the statute does provide some other means of enforcing the duty that
will normally indicate that the statutory duty was intended to be enforceable by those means
and not by private right of action: See Cutler v Wandsworth Stadium Ltd [1949] AC 398
and Lonhro Ltd v Shell Petroleum Co. Ltd [1982] AC 173

157. Lord Reid stated in Bonnington Casting Limited v Wardlaw [1956] AC 613 “The fact
that Parliament imposes a duty for the protection of employees has been held to entitle an
employee to sue if he is injured as a result of a breach of that duty, but it would be going a
great deal further to hold that it can be inferred from the enactment of a duty that Parliament
intended that any employee suffering injury can sue his employer merely because there was a
breach of duty and it is shown to be possible that his injury may have been caused by it. In my
judgment the employee must in all cases prove his case by the ordinary standard of proof in
civil action he must make it appear at least that on a balance of probabilities the breach of duty
caused or materially contributed to his injury.”

158. Lord Browne-Wilkinson authoritatively restated the law on the action for breach of
statutory duty in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 731:
"The principles applicable in determining whether such statutory cause of action exists are
now well established, although the application of those principles in any particular case
remains difficult. The basic proposition is that in the ordinary case a breach of statutory
duty does not, by itself, give rise to any private law cause of action. However a private law
cause of action will arise if it can be shown, as a matter of construction of the statute, that
the statutory duty was imposed for the protection of a limited class of the public and that
Parliament intended to confer on members of that class a private right of action for breach
of the duty. There is no general rule by reference to which it can be decided whether a
statute does create such a right of action but there are a number of indicators. If the statute
provides no other remedy for its breach and the Parliamentary intention to protect a
limited class is shown, that indicates that there may be a private right of action since
otherwise there is no method of securing the protection the statute was intended to confer.

64
 If the statute does provide some other means of enforcing the duty that will normally
indicate that the statutory right was intended to be enforceable by those means and not by
private right of action: Cutler v Wandsworth Stadium Ltd [1949] AC 398; Lonrho Ltd
v Shell Petroleum Co Ltd (No 2) [1982] AC 173. However, the mere existence of some
other statutory remedy is not necessarily decisive. It is still possible to show that on the
true construction of the statute the protected class was intended by Parliament to have a
private remedy. Thus the specific duties imposed on employers in relation to factory
premises are enforceable by an action for damages, notwithstanding the imposition by the
statutes of criminal penalties for any breach: see Groves v Wimborne (Lord) [1898] 2
QB 402."

Browne-Wilkinson continued:
“Although the question is one of statutory construction and therefore each case
turns on the provisions in the relevant statute, it is significant that your Lordships
were not referred to any case where it had been held that statutory provisions
establishing a regulatory system or a scheme of social welfare for the benefit of the
public at large had been held to give rise to a private right of action for damages
for breach of statutory duty. Although regulatory or welfare legislation affecting a
particular area of activity does in fact provide protection to those individuals
particularly affected by that activity, the legislation is not to be treated as being
passed for the benefit of those individuals but for the benefit of society in general.
Thus legislation regulating the conduct of betting or prisons did not give rise to a
statutory right of action vested in those adversely affected by the breach of the
statutory provisions, i e, bookmakers and prisoners: see Cutler's case [1949] AC
398 ; R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58. The
cases where a private right of action for breach of statutory duty have been held to
arise are all cases in which the statutory duty has been very limited and specific as
opposed to general administrative functions imposed on public bodies and
involving the exercise of administrative discretions.”
See also Roe v Sheffield City Council and Others [2004] EWCA Civ. 329

65
159. Each case of course will depend on its particular facts and the proper inferences to be
drawn. The key is whether this statute identified a limited class of persons and conferred on
them private rights. There is strong support for the view that the OSH Act is a discrete piece
of legislation making provision for its own remedies and mechanism for enforcement and the
absence of any inclusionary remedy makes it clear that civil remedies are not available as it is
in some of the factory regulations in the UK , the cause of action for breach of statutory duty
will not arise.

160. But pointing equally strongly the other way is the view that I prefer. This is the intrinsic
personal nature of the obligations of the OSH Act, the limited class of persons to whom it is
directed (employee and employer). The absence of mandatory language eliminating relief by
other civil process. The presence previously of the civil remedy for breach of the Factory
Ordinance which it replaces and a strong policy reason to confer such private remedies to
create a culture of compliance in support of regulatory schemes which do not provide
compensation for employees and who may suffer from disastrous effects of occupational
hazards, unsafe place and systems of work. It would not be in step with the modern view of
proper management of health and safety activities generally in the oil and gas industry if
breach of such legislation does not give rise to the tort of breach of statutory duty.24

24
“Health and safety legislation represents one of several instruments to improve and to achieve stated policy
goals and, consequently, it is becoming an integral part of corporate management in the oil and gas sector. In fact,
in most countries the adoption of a new health and safety regime has led to an increased margin of safety and
quality and sometimes has provided a regulatory model that has emulated.

As a result, no company can afford to ignore the health and safety dimension of its operations and international
E&P activities are being subjected to a growing array of laws, guidelines, policies and codes of conduct. Indeed, the
proliferation of health and safety rules and regulations is increasingly putting restraints on the industry and,
similarly, is bringing with it increased liabilities in case of accidents or breaches of legislation.

The expansion of E&P activities threatens not only the region's biodiversity but also its human population. Oil
developments have led in many countries to severe social costs. These social impacts include health and safety risk
for the employees and the local population.

Despite the complexity of health and safety issues surrounding oil development around the world, an informed and
well-managed project can avoid or significantly reduce their impact. A successful health and safety management
programme requires a long-term commitment to on-the-ground assessment and substantial interaction with
employees and local stakeholders.
66
161. Notwithstanding the availability of criminal sanction and penalties which was also the
case under our Factories Ordinance, that is not determinative as to the availability of the civil
remedy in my view. The protection of employees by imposing statutory duties on employers
has long been considered as a special category of case where a tort of breach of statutory duty
will arise. See Groves v Lord Wimborne (supra) and Charlesworth on Negligence.

162. In my view upon reading the provisions of the OSH Act it is legislation that is designed to
protect the employee in relation to his/her employer. It sets out a code of duties and
obligations designed to safeguard the employee from the risk inherent in his occupation.
Health and safety legislation represents one of several instruments to improve and to achieve
stated policy goals and, consequently, it is becoming an integral part of corporate management
in the oil and gas sector and industrial sector. In fact, the adoption of a new health and safety
regime would lead to an increased margin of safety and quality. In a country where
noncompliance is becoming cultural, in my view policy demands that the imposition of a civil
remedy will underscore the responsibility which comes with the proper management of labour
and being responsible for the employee’s safety and welfare. The civil remedy of breach of
statutory duty is therefore available under OSHA. Whether the Claimant can succeed in its
claim is entirely a different matter.

163. The sections of the OSH Act being relied upon by the Claimant are:
“6. (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable,
the safety, health and welfare at work of all his employees. (2) Without prejudice to the
generality of an employer’s duty under subsection (1), the matters to which that duty
extends include in particular— (a) the provision and maintenance of plant and systems of
work that are, so far as is reasonably practicable, safe and without risks to health; (c) the

Not surprisingly, international oil and gas companies are facing demands for improving health and safety
performance. A commitment to social issues (like a safe and healthy workplace) means including new parameters in
decisions about development criteria, including where a company will work. For instance, the World Bank and other
financial institutions have begun to address social issues and now require more detailed social impact assessment
and mitigation plans before projects can be approved.
Health and safety legislation represents one of several instruments to improve and to achieve stated policy goals,
and consequently, it is becoming an integral part of corporate management in the oil and gas sector. In fact, in most
countries the adoption of a new health and safety regime has led to an increased margin of safety and quality and
sometimes has provided a regulatory model that has been emulated.
67
 provision of adequate and suitable protective clothing or devices of an approved standard
to employees who in the course of employment are likely to be exposed to the risk of
head, eye, ear, hand or foot injury, injury from air contaminant or any other bodily injury
and the provision of adequate instructions in the use of such protective clothing or
devices; (d) the provisions of such information, instruction, training and supervision as is
necessary to ensure, so far as is reasonably practicable, the safety and health at work of his
employees.
13A. (1) Every employer shall make a suitable and sufficient annual assessment of— (a)
the risks to the safety and health of his employees to which they are exposed whilst they
are at work; and (b) the risks to the safety and health of persons not in his employment
arising out of or in connection with the environmental impact of his undertaking, for the
purpose of identifying what measures are necessary for compliance with this Act or any
other statutory provision. (2) Any assessment referred to in paragraph (a) or (b) shall be
reviewed by the employer who made it if— (a) there is reason to suspect that it is no
longer valid; or (b) there has been a significant change in the matters to which it relates,
and where as a result of any such review, changes to an assessment are required, the
employer or self-employed person concerned shall make them. (3) Where the employer
employs twenty-five or more employees, he shall keep a record in accordance with section
75 of— (a) the findings of the assessment; and (b) any group of his employees identified
by the assessment as being exposed to an occupational safety and health risk.”

164. These are duties imposed on the employer and the person who is protected is the
employee. Interestingly what is raised in these proceedings is whether the similar analysis in
the common law of the “borrowed employee” will apply to make Trincan liable under the
OSH Act or will Drilling be liable as the “employer” for the purposes of the Act.

165. The OSH Act defines “employee” as a as any person who has entered into or works under
a contract with an employer to do any skilled, unskilled, manual, clerical or other work for
hire or reward, whether the contract is expressed or implied, oral or in writing or partly oral
and partly in writing, and includes public officers, the protective services and teachers;

68
 “employer” is defined as a person who employs persons for the purpose of carrying out any
trade, business, profession, office, vocation or apprenticeship.

166. In this case I hold that there is no breach of statutory duty by Drilling as employer under
the Act. The duty imposed on the employer under Section 6 of the Act is to take those steps as
“far as reasonably practicable”. Although Mr. Jairam has a contract of employment with
Drilling it cannot be said that it was “reasonably practicable” to impose a duty to prevent
injury by the explosion in the circumstances in this case where Drilling had no control over
the worker and was unaware as to what duties he would be performing, Drilling was none the
wiser of the use of electrical equipment in flammable environment and who simply contracted
to supply someone with basic skills, a labourer under the training of Trincan. In that analysis
it could not be their responsibility to do a risk assessment under Section 13 of the OSH Act.

167. Further, Trincan is not liable either. Mr. Jairam does not fall within the definition of
Trincan “employee” under the OSH Act. Trincan does not have a contract of employment
with Jairam. In the analysis above he is a “quasi employee”. The law recognizes Mr. Jairam as
a borrowed employee “outside” the four corners of the contract. There is therefore no contract
“express or implied”. The Act arguably recognizes Trincan’s status as an employer but I do
not see a concept of “employee pro hac vice” falling within the strict confines of the statutory
definition of “employee”. It may be for the purposes of the OSH Act that Mr. Jairam is an
invitee and Trincan considered an occupier but those provisions were not relied upon. To this
extent sections 7, 8 and 9 of the OSH Act may be of relevance.25

25
7. (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is
reasonably practicable, that persons not in his employment, who may be affected thereby are not thereby exposed
to risks to their safety or health. (2) It shall be the duty of every self-employed person to conduct his undertaking in
such a way as to ensure, so far as is reasonably practicable, that he and other persons, not being his employees,
who may be affected by his actions are not thereby exposed to risks to their safety or health. (3) In such cases as
may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed
circumstances and in the prescribed manner, to give to persons, not being his employees, who may be affected by
the way in which he conducts his undertaking, the prescribed information about such aspects of the way in which
he conducts his undertaking as might affect their safety or health. 8. (1) Subject to Part X and except as otherwise
expressly provided, it shall be the duty of every occupier of an industrial establishment to ensure that the following
provisions are complied with:(a) Parts IV to VII; (b) section 62; (c) Part XI; and (d) such other provisions of this Act or
such regulations as imposed duties on him. (2) An occupier of an industrial establishment employing twenty-five or
more persons shall prepare or revise, in consultation with worker representatives in the industrial establishment—
69
Conclusion
168. Trincan had a duty of care to take proper precautions to prevent injury to Mr. Jairam. They
had a responsibility to take care “for the safety and welfare” of Mr. Jairam. He was clearly
under the direct supervision and control of Trincan and very much integrated as part of their
business enterprise and organization and as such Trincan owed him the general duties of
employer qua employee. Trincan remained the occupier of the premises of Tank 7 and owed
to Mr. Jairam and Rampersad the duty to take reasonable care for the safety of its invitees.
The duty of care that Trincan owed to Mr. Jairam was non delegable and was not discharged
simply by retaining Rampersad as an independent contractor. Rampersad also owed a duty of
care to Mr. Jairam.

169. In the circumstances a duty of care to Mr. Jairam cannot be imposed on Drilling as an
employer under its contract where it did not exercise sufficient control over the skill and
duties in the course of Mr. Jairam’s employment as an electrician trainee at Trincan generally
or with respect to the job of cleaning Tank 7. Although having a contract of employment with
Drilling as a general employer it was not in breach of its duty of care under the OSH Act
having regard to the peculiar circumstances of the labour contract with Trincan. Drilling is
accordingly not liable to Mr. Jairam in this accident either in common law negligence or for
the tort of breach of statutory duty.

170. The breach of the duty of care by Trincan and Rampersad was determined upon a close
examination of the nature of the work agreed to by the parties, the respective risks associated
with the job assumed by both companies, the instructions given by Trincan to countermand

(a) a written statement of his general policy with respect to the safety and health of persons employed in the
industrial establishment, specifying the organisation and arrangements for the time being in force for carrying out
that policy and the provisions specified in subsection (1); and (b) an emergency plan in writing based on a risk
assessment made in accordance with section 13A which shall include—(i) suitable and rapid means of obtaining
first-aid help and transportation from the industrial establishment to a hospital for injured workers; and
(ii) measures and procedures to be used to control a major fire, to react to serious damage to the industrial
establishment, to evacuate the industrial establishment and to notify rescue personnel, and the occupier shall
submit the statement or the emergency plan, as the case may be, and any revision thereof to the Chief
Inspector and bring them to the notice of all persons employed in the industrial establishment. 9. The occupier of
every industrial establishment shall—(a) be under a duty to take steps within the standards established by the
Authority responsible for managing the environment, to protect the safety and health of the public in the vicinity of
his industrial establishment from dangers created by the operation or processes carried on therein; and (b) take
special care to ensure that plant and equipment used therein are of such integrity and that such adequate safety
systems exist as to prevent the occurrence of fugitive emissions not conforming with an approved standard.
70
 the advice of Mr. Rampersad and the cause of the explosion as a result of the negligent act of
both Mr. Seechan and Mr. Persad. Rampersad was the specialist in cleaning the tank and
would have been aware of all the risks associated with that operation. Conversely Trincan
assumed the responsibility to provide lighting when it had no skill nor expertise nor
experience to do so for the purposes of cleaning an oil tank such as Tank 7. Something as
basic as providing fire resistant clothing to its employees, holding tool box meetings,
conducting risk assessment were non-existent.

171. Trincan in my view bears the larger responsibility in breaching its duty of care resulting in
this explosion and there will be judgment for Mr. Jairam against Trincan and Rampersad. I
attribute Trincan’s responsibility at 80% and Rampersad at 20%. These Defendants will pay
to the Claimant his costs on the prescribed scale along the same proportions to be quantified
in default of agreement.

172. Trincan’s claim against Rampersad therefore succeeds only as to 20% of its claim.
Rampersad is therefore to pay to Trincan 20% of its claim for damages to be agreed and costs
on the prescribed scale to be quantified in default of agreement. As I have not completed that
action this order will be stayed pending the determination of the main claim.

173. The claim against Drilling is dismissed. I am of the view that it was not unreasonable for
the Claimant to have joined Drilling having regard to the defence filed by Trincan. Indeed the
burden should not be on the Claimant in cases such as these to make any determination as to
who his employer is but it is reasonable to join both and have them battle the issue of liability
amongst themselves. I order Trincan to pay Drilling the costs of the trial on the prescribed
scale to be quantified in default of agreement.

Postscript
174. I am grateful to Senior Counsel and Counsels for their time, preparation and submissions.
There are recommendations made by the experts in this case to prevent the recurrence of such
disasters as this one. One trusts that these recommendations are embraced as a feature of good
corporate management. Equally the law of vicarious liability should not be viewed as a means
to protect managers by finding scapegoats in the errant employee. With control over the
71
elements of production comes responsibility. Managers must be vigilant to safeguard the
health and welfare of its employees and those affected by its actions. The explosion in this
matter was equally a result of poor managerial practices. If companies accept the real benefit
to them of adopting proactive health and safety management systems which ensure that the
company, its employees, and affiliates conduct their activities in a safe and healthy
responsible manner, and the more proactive companies are in implementing an effective and
compliant health and safety management system, the less will be the need for litigation such
as this.

Vasheist Kokaram
Judge

72