“This Contract shall be governed by the laws of England. The parties agree to submit to the exclusive jurisdiction of the courts of England to settle any claim or matter arising under or in connection with this Contract …”
“Build up to Occupation: In or around June/July 2011, Cameron leased land for their planned facility in North Rumaila. Aegis operated out of what was the CMO Villa in Basra providing mobile security for Cameron. “Work began on the site in the form of UXO Clearance followed by land grading /compacting.”
“About 05:30 hours on29th May 2012 I was manning Guard Tower One. I saw George Tyers running on the track around the area between the T Walls and fence. He approached from the area of Tower Four. When he arrived at the Double Steel Gate beside Tower One, he entered through the gates. He then started to close the gate to my left (from Tower One). The gate came off its rollers and fell on top of George. I released my airhorn and blew my whistle.”
“About 05:30 hrs on29th May 2012 I was manning the main gate to the Cameron Facility. I observed George Tyers running around the track between the T Walls and the Chain Link Fence. After running one lap I saw George going towards the two large gates. He went inside and started closing the gate on the right. As he walked towards the left gate, the right gate fell off the rollers onto George. Immediately I shouted for my Supervisor who was inside the guard room.”
“Throughout the whole incident all members of Project Arcadia, G6, and RSMI fought extremely hard to resuscitate George but unfortunately his injuries were fatal. “In the 6 months I have been based at the Cameron Facility I never received any form of HSE Brief from the GCC HSE Officer. I am not even sure that GCC had one. At no time did GCC brief myself or any other Aegis personnel that there were any areas Out Of Bounds due to hazards. The gate that fell on George Tyers had no means of retention/stoppers/warning signs. And once again we had not been instructed by GCC that these gates were to be avoided. In fact, these gates were used for heavy vehicles and pedestrian movement. Only after the incident was the area taped off and placed Out of Bounds. Nearly a month after, GCC has fitted stoppers/chains/retainers to the gates. These do not appear to be of good quality. I firmly believe that if GCC had implemented a HSE Plan our colleague would still be alive today. Currently over 75% of the facility remains out of bounds due to potential hazards and debris, and this was implemented by Aegis personnel not GCC HSE.”
“The Construction Company GCC has, post incident, implemented a HSE representative at the Cameron International LSC. Despite his efforts there continues to be daily breaches of normal Health & Safety Protocol. Deputy Country Manager Dominic Collins is in liaison with the Cameron International Security advisor Stan Webster to increase basic safety awareness at the site. Aegis employees remain vigilant and brief their clients at the site accordingly in order to mitigate risk. “There is no evidence to show that any member of the Aegis project staff were at fault. The lack of Health & Safety measures of any sort is the reason that this tragic incident was not avoided.”
“I am writing to you concerning the request recently made by your company (copy attached) for Cameron’s investigative report relating to Mr Tyers’s death. We will aim to provide you with a written report today or Monday summarizing Cameron’s findings. In accordance with our internal policies, this document is generally created subject to attorney client privilege and prepared at my direction. We will be making an exception to share the document with Aegis, since Mr Tyers was your employee and we do not want his family’s benefits withheld any longer. That being said, would you be willing to confirm that Aegis seeks to use Cameron’s report for internal “need-to-know” purposes only and will otherwise keep it confidential?”
“Thank you for your email. I have left a voice mail. We can confirm that we only require the report for internal purposes. I would like to ensure you retain privilege, if this is possible, so that any ultimate decision to release is entirely at Cameron’s behest – perhaps we should discuss how we can best achieve this.”
“Shortly after our phone call, I was notified that his estate intends to pursue a claim against Cameron. In view of that, I am double checking with our counsel as well. I apologize for the delay but believe we will be able to reach out to Ross this week with something.”
“Cameron has been contacted by legal counsel representing the family of the deceased. We anticipate that a claim will be filed against Cameron seeking monetary compensation for the death of Mr Tyers. “This is to advise you that, in the event of a claim against Cameron in relation to the Incident, Cameron will take all action necessary to seek indemnification from Aegis pursuant to the indemnification provisions of the Agreement.” “Kindly provide us with the contact details of your insurance company providing the Commercial General Liability Insurance and other insurance coverage required under Article 12 and Schedule 5 of the Agreement. We also request that you provide us with the name and contact details of any other individual at Aegis with whom we should correspond in relation to this matter in the future.””
“Our Country Management Office in Iraq spoke to the local judge in Basra regarding the release of a police report and they confirmed that they are waiting for a number of documents before a report can be released. They have asked for three statements from our Iraqi contractors who were present at the time of the incident. We did take statements following the event but the judge has asked for further statements to be taken in front of a lawyer and our Deputy Country Manager and then stamped and sent to him for review. This request is currently being processed.”
“As the Cameron facility construction progressed and adequate site security measures had been adopted, a decision was made to build a temporary camp (fly camp) in the right-hand corner of our site footprint, the rationale being that this move to the field would greatly reduce our exposure to both militancy and road traffic collisions. The temporary camp consisted of sleeping cabins, office, dining trailer and a small kitchen. A final security review of the temporary camp was completed resulting in all Cameron staff and Aegis security personnel relocating to the camp; this was fully completed by31st January 2012 . On the27th May 2012 , staff vacated the temporary camp to occupy two of the permanent accommodation units of the new facility. On 31st May, the remaining security personnel completed their move to permanent accommodation units. This move placed all personnel closer to construction activity. All staff were made aware of construction site safety and that they were not to enter construction areas without an approved need to actually do so. Hard hats, high visibility vests and closed footwear (individually owned) were available for wear and were expressly required. Facility security is based on a layered approach, known as the "onion skin' principle, meaning, if one layer of defence is breached, you are immediately faced by another. One element of facility security consists of erecting steel gates at the main entrance. The gates are constructed from steel; the exact weight has yet to be determined. The gates are to prevent hostile vehicle intrusion therefore size and weight is critical. The gates run on rollers to assist in their operation and to enable single man operation and are not mechanically operated. To support the gates' weight a concrete foundation was created under direction of GCC supervisors, which was poured in two stages and completed overnight on 24/25th May 2012 . Irfan (GCC supervisor, a Pakistan national) supervised and participated with the security gate installation on the27th May 2012 , and later that day Irfan reported the gates installed. The only caveat mentioned was that the entrance could not be used for vehicular traffic as the concrete foundation would need a further 14 days to set and cure correctly. In addition, one of the rollers at the base of the gate needed adjusting for correct alignment when the gates were in the fully closed position. Irfan left the project for Pakistan (prior to the incident). Incident Circumstances: At 05:30 hours, on the morning of Tuesday, May 29th 2012, George Tyers (Security Team Leader, Aegis Private Security Company) went on his morning jog around the perimeter of the facility. George was wearing ear-phones and carrying an iPod. About 05:32 hours, George's run took him past the main entrance which was still under construction. The security gates were in the open position. For reasons only known to George, it appears he decided to close the gates. It is believed he first went to the right-side gate, positioned both hands on the outer gate edge and pushed hard. The gate moved towards the closed position, probably in part under its own momentum. George then walked across the concrete roadway towards the open left-hand gate and it is our understanding that it was as he crossed, the right gate rolled out of the right upright support and then fell inwards towards George. It appears George had turned towards the falling gate, reaching upwards as if to try and support or stop the falling gate. The approximately two ton gate fell onto George. Ultimately, George would have been unable to support the sheer weight of the gate. The gate came to rest against George's chest. His shoulders and head were free from the weight and extended from the gate.”
“No-one is prepared to accept liability for my husband’s death. I have seen the Aegis Incident Report and according to the witness statements and photographs, negligence is definitely at play. The case is currently (almost 2 years) before a Judge in Basra. Aegis keeps me informed from time to time. I wish to have some more insight on whom I can contact regarding the court documents which I believe is for public domain. The judge requested an Incident Report from Aegis, Cameron as well as the contracts between Aegis/Cameron and Cameron/GCC translated in Arabic. My husband was the sole provider for our family. I have recently started working again. Our daughter is 4 years old. My husband was 37 years old at the time of his death. Mr Majid, would it be possible for you to advise me on this matter.”
“We are in the process of lodging claims against various parties as a result of Mr Tyers’ death.”
“I thought the judicial report would identify who was responsible so that I could then proceed. I was waiting and hoping for what was happening in Iraq, so that justice would prevail. The accident had no connection with South Africa save that my husband was a South African national.”
“I don’t believe there is much doubt as to how the accident happened – this is clear from the witness statements and the documents. I agree that witness statements taken soon after the accident are likely to be more reliable than those taken years later.”
“Limitation Subject to the above, we take the view that English law will apply to the issues of limitation in this matter and that the applicable limitation date is that of three years form [sic] the date of Mr Tyers' death, namely29th May 2012 .”
“I’m advised that the court has deemed that it would be appropriate to determine if this claim should proceed outside the applicable limitation period which I am advised is 3 years from the date of the incident.”
“In my judgment, the principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings . . . are as follows. (i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. (ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely upon it. (iii) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter. (iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. (v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”
“As I mentioned I recalled a meeting between Cameron/Pressure Peak and BP ROO the week before the accident with George. … The two KBR engineers were Richard Phillips and I think Alex Smith, they deployed with us to the facility in early January, Alex left the project some time before the accident, Richard left shortly after the accident. I can’t recall their official capacity, only that they oversaw construction activities and reported directly to Cameron, they pre-dated me on the project. Myself and Robin Furphy were the Team Leaders of APA 1 and APA 2 (Aegis Project Arcadia) respectively, I think Rob Edwards and Matthew Wardlaw were a ’surge’ team (perhaps to support the above meeting). I don’t recall how long they were on-site before the accident. I believe we were not intended to deploy to the site until construction was completed, but I can’t recall how, why or who changed that, that decision would have been made at RMO/CMO/Cameron level. I’m afraid that the passage of time doesn’t help recollection too much, but I hope this is helpful….”
“To an extent, I am working blind here given the passage of time and the fact that a great deal of the information appears to have been destroyed. I would like to ensure that Aegis/Gard have done everything possible to locate the information in relation to the project. Bobby, are you able to identify the Aegis senior management who conducted the SIR? Both, Is there any way of checking Aegis’s systems for the TRiM and/or whether we can identify any further documents in relation to the project?”
“I recall a ‘All hands’ HSE brief from GCC shortly after we occupied the ‘Fly camp’, I don’t recall the specific content. (NB: George was out of country). At some stage we were provided with Hi-Vis vests and construction helmets for PPO’s and clients (Cameron/KBR), for when we accompanied them into the construction area. I don’t recall whether Aegis provided these or GCC. Daily briefings would be an int update, confirmation of next day’s tasks and any admin/logistics issues.”
“The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant”
“I do not think that that is correct. The wording of section 33(1)(a) is quite general with regard to prejudice to a claimant and is in precisely the same terms as section 33(1)(b) relating to prejudice to a defendant. As I have said already, potential prejudice to a claimant by the loss of his or her claim is the universal consequence of a claimant losing a limitation argument. Further, the Master of the Rolls said in paragraph 42(3) of his Judgment in Carroll (supra) that the burden was on the claimant to show that his or her prejudice would outweigh that to the defendant. This must presume that factors of prejudice, beyond mere loss of the claim itself, can be advanced by a claimant in argument on the application of section 33 in any given case in order to satisfy that burden.”
“58. … The question for the court under section 33 is whether it “would be equitable to allow the action to proceed”, notwithstanding the expiry of the primary limitation period. That question is to be answered by having regard to all the circumstances of the case, including in particular the factors identified in section 33(3). 59. Whether it is “equitable” to allow an action to proceed is no different a question, in my judgment, from asking whether it is fair in all the circumstances for the trial to take place - the same question as the judge asked in the first part of the criticised paragraph 29 of the Judgment. That question can only be answered by reference (as the section says expressly) to “all the circumstances”, including the particular factors picked out in the Act. No factor, as it seems to me, can be given a priori importance; all are potentially important. However, the importance of each of those statutory factors and the importance of other factors (specific to the case) outside the ones spelled out in section 33(3) will vary in intensity from case to case. One of the factors will usually be the one identified by the judge in paragraph 29, by reference to the Judgment of Bingham MR in Dobbie v Medway HA[1994] 1 WLR 1234 , 1238D-E, namely that statutory limitation rules are “…no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition…but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims”
“I do not accept that, in carrying out the balancing exercise for the purposes of section 33, the matters mentioned in those paragraphs of Mr Finch’s witness statement amount to real prejudice to the defendant as a result of the claimant’s culpable delay. In the first place, there is no evidence as to when the documents ceased to be available, whether before, during or after the limitation period commenced. It cannot be said, therefore, that the documents were lost, disappeared or were destroyed during any period of delay, let alone any undue delay, by the claimant in commencing the proceedings.”
“It is no answer, in my view, to say that the prejudice has only been marginally increased by the fact that the claim was made two years after the limitation period has expired. The Act, with its generous provisions for claimants in personal injury actions for an extension of the primary limitation period so that it starts from the date of knowledge, has, as this court has said in Bryn Alyn , provided the limit of permissible prejudice save in special cases. In other words Parliament has determined in Sections 11 and 14 where the balance of prejudice should normally be struck. It follows that Section 33 should only be available for special cases. And it is for the claimant in any particular case to establish that his claim is one of those special cases.”
“1. Section 33 is not confined to a “residual class of cases”
“That affords justice between the parties. The purpose of the section and of LA80 s.28 (extension of time for those under a disability) is met as the infant dependant, for example, remains (in principle) permitted to bring a claim against the defendant, while the defendant is relieved of the obligation to satisfy a claim brought by an adult who is guilty of significant and/or unexplained delay, but who is rescued by virtue of the fact that she has a dependant whereas an identical but childless claimant would be time-barred.”
“42 Section 33(3) of the LA 1980 requires the court, when exercising its discretion under section 33(1), to have regard to all the circumstances of the case but also directs the court to have regard to the five matters specified in subsections 33(3)(a)–(f). There are numerous reported cases in which the court has elaborated on the application of that statutory direction in the context of the particular facts of the case. In many of the cases the court has stated various principles of general application. The general principles may be summarised as follows: 1. Section 33 is not confined to a “residual class of cases”
“22. The main difficulty about that approach is the emphasis that is placed upon the failings on the part of the defendant's solicitors, because in his analysis of whether the Claimant had acted diligently, the Judge undoubtedly attributes − and entirely attributes − the actions of the solicitors to the Claimant himself. Unless the Claimant is, as a matter of law, bound by and bears the responsibility for that which is done by his solicitors, that attribution is plainly not right because, on the evidence, Mr Corbin did what a man in his position might be expected to do, which is to go to his solicitors, who are apparently efficient and responsible in this area of work, and left them to get on with it. Unless, as a matter of law, he is bound by the solicitors, that analysis of the Judge, as a matter of fact, is not right. 23. This Court has recently considered the impact in this particular area of limitation of fault on the part of those advising the Claimant. It did that in the case of Das−v− Ganju [1999] LLR Medical, at page 198. I do not run over the facts of that case, save to say that the delay there was to a large part attributable to mistaken advice that had been received by the Claimant. In assessing the effect of that, Sir Christopher Staughton −who gave the leading judgement, quoted a passage in an earlier case of Whitfield −v−North Durham Health Authority [1995] 6 Med LR, and then said this: “If that passage means that as a matter of law anything done by the lawyers must be visited on the client, it cannot in my view be reconciled with other authority. It appears to have been a concession which the court accepted. The other authority is Thompson −v− Brown[1981] 1 WLR 744 and the speech of Lord Diplock at pages 750 and 752, which I do not set out for fear of lengthening this judgment even further. I would also return to Halford −v− Brookes, where again it is said that it is no reproach to the plaintiff that he has received the wrong legal advice."” “If that passage means that as a matter of law anything done by the lawyers must be visited on the client, it cannot in my view be reconciled with other authority. It appears to have been a concession which the court accepted. The other authority is Thompson −v− Brown[1981] 1 WLR 744 and the speech of Lord Diplock at pages 750 and 752, which I do not set out for fear of lengthening this judgment even further. I would also return to Halford −v− Brookes, where again it is said that it is no reproach to the plaintiff that he has received the wrong legal advice."”