By NEIL HARTNELL
Tribune Business Editor
Three former Freeport Container Port operators have lost their bid to claim damages from the Government over disabilities and “extensive psychological trauma” resulting from the March 2010 tornado that devastated the firm’s operation.
Kevin Archer, Samuel Swann and Harrison Moultrie all named the attorney general as a defendant in their respective legal actions, alongside their former employer and its Hutchison Ports (Bahamas) parent, on the grounds that the 2009 decision to close the Freeport Weather Services station meant it was impossible to obtain early warning of “hazardous weather” conditions that could cause injury or death.
But Justice Petra Hanna-Adderley, in a May 20, 2022, verdict agreed with government attorneys that the three crane operators’ claim was “statute barred” and the attorney general (as minister responsible for the Meteorology Department) be dismissed as a defendant to the action.
She reached this decision on the grounds that the Limitation Act, which sets deadlines by which legal actions must be brought, only gave the three crane operators 12 months from when the tornado occurred to bring their claims. This, she added, gave them until March 28, 2011, but their writs against Freeport Container Port and Hutchison Port Holdings were only filed on March 5, 2013.
And it took a further year, until March 3, 2014, for the trip to add the attorney general, as minister responsible for the Meteorology Department, as a defendant. As a result, it took the former crane operators almost three years - instead of the legally-mandated one - to bring their claim against the Government.
Justice Hanna-Adderley’s ruling occurred more than 12 years after the tragic tornado, which resulted in three deaths at Freeport Container Port and six injuries, two of which were described by health and safety investigators at the time as serious. It was also released more than nine years after the ex-crane operators initially filed their claim, and over eight years since the Government was added as a defendant.
Their claims against the Freeport Container Port and Hutchison Ports (Bahamas) for “negligence” and “breach of statutory duty” were not dealt with by the latest ruling, in which Justice Hanna-Adderley wrote: “The plaintiffs allege that, as a result of the storm and tornado activity on March 29, 2010, the cranes that they were operating at the time collided with another crane and, as a result of the collision, suffered physical injuries.
“They also allege that witnessing the collapsing of another crane resulting in the death of those persons operating the same subsequently caused them extensive psychological damage.” Health and safety investigators, in a report on the tragedy, wrote: “One crane was pushed over 100 metres and four other 1,000 ton cranes were sent crashing together into the last crane at the end of the gantry tracks, toppling it to the ground.”
Mr Archer, in his evidence, alleged he was suffering from post-traumatic stress disorder (PTSD) as a result of the tornado tragedy. He produced a psychiatric report from Dr Jean Turnquest to confirm this, and said he was both disabled and required ongoing medical treatment as a result.
Both Mr Swann and Mr Moultrie produced National Insurance Board (NIB) benefit contributions showing they had been left 40 percent and 30 percent, respectively, “permanently disabled for life” due to the resulting industrial accident.
However, Franklyn Williams, now-director of public prosecutions, argued on the Government’s behalf that the Limitation Act’s section 12 bars any claims being brought against a public body, in the execution of its lawful duties, if actions are not initiated within a year of the events complained of.
He successfully argued that the attorney general was only added as a defendant “some three years out of time”, adding that the deadline to initiate legal proceedings was March 28, 2011 - one year after the tornado strike. Despite the arguments of the crane operators’ attorney, Osman Johnson, Justice Hanna-Adderley agreed that the action was “well outside of the prescribed limitation period” and therefore the attorney general should be struck out as a defendant.