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The Privy Council has reserved its decision in a case that could determine whether charges filed by the Occupational Safety and Health Authority and Agency (OSHA) in several OSH-related cases, including the Paria diving tragedy, can proceed.
At the centre of the issue is whether OSHA missed a legal deadline by filing charges more than six months after the alleged breach. The outcome of the case involving the University of the West Indies and OSHA, argued before Lords Lloyd-Jones, Sales, Burrows, Richards and Lady Simler on June 25, will directly affect whether those charges in other cases are deemed valid.
The Paria charges in the Industrial Court are effectively stayed, pending the Privy Council's decision, while the criminal charges in the magistrates’ court will again come up for hearing in October.
In the UWI case, the OSH Agency appealed a 2023 ruling by the Court of Appeal, which found that OSHA had only six months from when an offence became known to file a complaint under section 93 of the Occupational Safety and Health Act.
If the Privy Council upholds that ruling, it could affect OSHA’s charges in the Paria diving case.
The UWI case stems from an incident on March 10, 2016, in which a UWI employee was injured after being hit by a cow. OSHA claimed UWI breached the OSH Act by failing to report the incident within four days. OSHA received UWI’s notification on April 6, 2016.
The agency filed a complaint in the Industrial Court on November 20, 2017. UWI objected, arguing that the complaint was filed outside the six-month window outlined in section 93. However, the agency argued that the two-year limitation under the act applied.
The Industrial Court sided with OSHA, but the Court of Appeal overturned that decision.
In its ruling, delivered by Justice of Appeal James Aboud, the Appeal Court ruled that section 93 applied to both summary and safety and health offences, while section 97B related only to civil matters. He found OSHA’s complaint was out of time and struck it out.
Aboud clarified that safety and health offences were criminal in nature and should be filed within six months of when the offence becomes known. He also held that the specific provision (section 93) must prevail over the general (section 97B), and that the Industrial Court lacked jurisdiction.
It also ruled that the two-year limit only applied to civil lawsuits brought under the legislation.
At the June 25 hearing, OSHA’s lead counsel Robert Strang said the Appeal Court’s ruling had caused significant uncertainty in the management of prosecutions, arguing that OSHA had operated under the assumption that a two-year time limit applied."The authority scheduled its investigations and prosecutions based on the two-year limit," Strang said. He said OSHA supported the Industrial Court’s interpretation and called on the Privy Council to rule in favour of OSHA's position.
He admitted the act provided for different starting points (for the breach) but said that “anomaly” could be something for the legislature to look at.
Responding to the submissions, UWI's lawyer, David Alexander, said that the Appeal Court's ruling could not be faulted as it conducted a thorough interpretation of the legislative provisions.
"There should be no difficulty with words in those provisions...The plain meaning of the words is clear," Alexander said.
Alexander urged the panel to uphold the Appeal Court’s decision. He argued that the limitation for summary offences was six months. Alexander urged the judges to first look at the plain meaning of the words in the OSH Act, saying the provisions confirmed there were two types of offences under the act - summary and safety and health offences. He said summary offences were to be dealt with under the provisions of the Summary Courts Act (SCA), as the OSH Act did not say how to proceed with summary offences.
Both attorneys explained in detail the relevant sections of the OSH Act before the judges reserved their ruling.
In its filing in the Paria case before the Industrial Court, the agency
acknowledged that its charges could be affected by the Privy Council's ruling in the UWI case. The same acknowledgement was made in a case against the Water and Sewerage Authority in 2024.
In 2023, OSHA filed multiple complaints related to the tragedy, in which four LMCS divers died. The Commission of Enquiry into the incident recommended extending the time limit for OSH Act prosecutions to three years. OSHA has taken a “double-barrelled” approach, pursuing the case in both the Industrial Court and the summary courts.
The Privy Council’s ruling is expected to clarify the legal time frame within which OSHA must file complaints.
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