Permission to sue

A former arcade worker who was shot while on the job has been given the green light to take legal action against his former employer, despite filing the case beyond the time period prescribed by the Limitations of Actions Act.

The decision, which was handed down by Madam Justice Michelle Weekes has paved the way for Henderson Cumberbatch to sue Sunswept Inc for damages following a shooting incident in 2004.

Back on December 12, 2004, Cumberbatch was employed as a supervisor at Play to Win arcade in Marhill Street, Bridgetown, when armed men attempted to rob the establishment.

During the robbery he was shot and sustained a number of serious injuries.

Seven years later on July 18, 2011, through his legal representative Edmund Hinkson, he filed a personal injury claim against his former employer, seeking damages totalling $818 537.74 together with interest and costs.

However, the defendant filed a defence and counterclaim one month later charging that the alleged cause of action was statute barred, as the claim did not arise within three years of the incident.

That statement of claim was eventually amended one year later and the defendant denied all liability for the claimant’s injuries.

In explaining why it had taken so long for the claim to be filed, Hinkson said his client had been made to believe he would have been compensated for his injuries.

He said this was due to the fact that Sunswept had paid all of his client’s medical expenses and costs up to 2011, which amounted to almost $19 000.

Hinkson said his client spoke with the company’s managing director Peter Odle in 2006 who informed him that the matter would be looked after and told him to submit the necessary documents.

In his written submissions, Hinkson pointed out that the court had the discretion under Sections 52 and 53 of the Act to allow the action to proceed despite the ending of the limitation period.

He also argued that the financial loss to his client would be unbearable if the claim is dismissed and that he would be severely prejudiced.

In their defense, Sunswept’s lawyer Zarina Khan admitted that while the company had covered all of Cumberbatch’s medical expenses it had done so on an ex gratia basis only to ensure that the employee was properly cared for.

However, she submitted that Odle had not accepted liability and never told Cumberbatch he would deal with the company’s insurers on his behalf.

In handing down her 18-page ruling on March 27, Justice Weekes contended that Section 20 (2) of the Limitations of Actions Act shall not apply to the claimant’s cause of action.

“The court accepts the claimant’s submission that the financial loss to him would be unbearable if the case is dismissed and that he would be severely prejudiced.

“While the claimant was not prompt in bringing his claim, I find that the claimant’s delay was due to the payment of all of the medical expenses, both during and after the expiration of the limitation period,” Justice Weekes stated.

“I also find that the defendant is unlikely to be prejudiced by the delay in filing the claim. I therefore consider that it would be equitable to allow the action to proceed.”

Justice Weekes also apologized for the delay in handing down the judgement.

She said it was due in part to her being assigned to criminal court.

“I apologize unreservedly for the delay in the delivery of this decision, which was due in part to my assignment to the criminal sessions and the recent dislocation of the Supreme Court and the Registration Department,” she outlined. randybennett@barbadostoday.bb