Juanita Tyers (widow and executrix of the estate of George Tyers deceased) v Aegis Defence Services (BVI) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 21 April 2023 |
| Neutral Citation | [2023] EWHC 896 (KB) |
| Docket Number | Case No: QB-2019-001967 |
| Court | King's Bench Division |
[2023] EWHC 896 (KB)
THE HONOURABLE Mr Justice Martin Spencer
Case No: QB-2019-001967
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Sarah Crowther KC appeared for the Claimant
Mr Patrick Blakesley KC appeared for the Defendant
Hearing dates: 20 th February-21 st February
Approved Judgment
This judgment was handed down remotely at 10.30am on 21 st April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Martin Spencer
Introduction
On 29th May 2012, George Tyers (hereafter, “the deceased”), a South African national engaged to carry out security work for the Defendant at the Cameron International Life Support Camp in the North Ramallah Oil Field, Basra, Iraq, went for an early morning jog around the perimeter of the camp, which was still in the course of construction. His movements were observed by a security guard in a guard tower, Ahmed Shati. Next to Tower One was a double steel sliding gate. The deceased entered the inner perimeter of the camp through the gate, and pushed the gate closed after him. However, the gate, weighing some 3 tons, was not secured to its stanchion with stoppers or flanges, and it toppled over onto the deceased, crushing him and causing injuries which were fatal. By this action, his widow, Juanita Tyers (hereafter “Mrs Tyers” or “the Claimant”), seeks damages on behalf of the Estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and on behalf of herself and their daughter, Georgina Tyers (born on 5 May 2009 and therefore aged 3 at the date of her father's death), as dependants pursuant to the Fatal Accidents Act 1976.
Proceedings were issued on 29th May 2019, 7 years after the accident and 4 years after the expiry of the limitation period, if time is taken to have started to run from the date of the accident. The proceedings were served on the Defendant on 10th August 2020. It is the Claimant's case that her “date of knowledge” was not in fact until 1st November 2013, so that the primary limitation period expired on 1st November 2016 and the claim was 2 years, 8 months out of time. On either view, it is agreed that, in order for Mrs Tyers' claim to succeed, she requires the court to exercise its discretion pursuant to section 33 of the Limitation Act 1980 and disapply the primary limitation period. It is further agreed that, Georgina being a minor, the limitation period is statutorily suspended until she reaches her majority, so that the action may proceed in respect of her claim irrespective of the court's determination on the section 33 issue. There is an issue between the parties as to whether the fact that Georgina's claim will continue in any event is a relevant consideration for the court to take into account in its section 33 determination. It is also relevant for the court to know, in deciding the section 33 issue, how long out of time the proceedings were issued and therefore it remains necessary for the court to decide the “date of knowledge” issue.
By her Order dated 26th May 2022, Master McCloud ordered that limitation be tried as a preliminary issue. This was agreed, although it seems that the Claimant also wanted liability to be tried at the same time. It is not clear that, in objecting to that course, the Defendant's advisers appreciated at the time that the trial would be proceeding in respect of Georgina's claim in any event: from reading the Defendant's outline submissions for the hearing before Master McCloud, I would surmise not, given the arguments made about costs savings. In the event, the hearing before me proceeded on the issue of limitation alone.
The issues that arise for determination are:
(i) When the primary period of limitation expired, and therefore how long out of time the proceedings were issued;
(ii) Whether the court should exercise its discretion under section 33 of the Limitation Act 1980 to disapply the limitation period and allow Mrs Tyers' claim to proceed; incorporating
(iii) Whether, for the purposes of section 33, the court can take into account the fact that the action will proceed in any event in respect of Georgina's claim.
The Detailed History
Mrs Tyers was born on 23rd January 1971, the deceased was born on 20th February 1975, and they were married on 16th March 2002. Their only child, Georgina, was born on 5th May 2005. In the Defence, it is pleaded that the deceased was engaged from time to time since April 2005 to provide security services under a series of contracts for services. At the time of the accident, the governing contract provided for him to perform security services as a security team member in Iraq for a 6 month period from 1st February 2012 to 31st July 2012. Paragraph 8 of the contract provided:
“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 …”
The deceased was promoted to team leader on 28th May 2012, the day before his accident.
The Defendant (also referred to hereafter as “Aegis”) is a private security services company incorporated in the British Virgin Islands and was contracted by an American company, Cameron International (hereafter “Cameron”), to provide security services in Iraq, a project which was known as “Project Arcadia”. Cameron was engaged in the provision of support services to the oil and gas industry in Iraq and in particular the construction and operation of a Life Support Camp (“LSC”) on the North Rumala Oilfield, near Basra. The LSC remained under construction by GCC Services (hereafter “GCC”), a company incorporated in the United Arab Emirates.
The events in the period leading up to the accident are described in an email dated 20th October 2020 from Mr Robin Furphy who was a Team Leader and who, like the deceased, was similarly contracted to the Defendant and engaged on Project Arcadia. He stated:
“ 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.”
Aegis conducted client movement/site visits on a daily basis over several months to allow Cameron in-country manager and visiting personalities oversight as construction began.
Prior to the planned occupation, the build-up phase saw the construction of Project SOPs in line with the SOW. Security & safety briefs were held discussing HSE practices. These briefs would have involved all Aegis staff assigned to the Cameron Project.
In late Dec 2011/early 2012 Cameron moved up the timeline in regards to occupation of the site. The original plan was the site would not be occupied until complete.
Aegis Iraqi Guard Force and two Mobile Security Teams including 2–3 Cameron clients moved into a “fly camp” on the construction site.
On occupation of site Aegis HSE SOPs were adhered to in relation to all real estate occupied by our staff.
Occupation / Construction:
Cameron contracted GCC to construct the camp who in turn would have subcontracted to various Basra & Baghdad contractors.
KBR were contracted by Cameron to provide 2xQSHE Managers to live on site. This was short lived with their services terminated by Cameron. I believe that this was due to the QSHE Managers raising flags and causing delays to various aspects of construction.
The above meant that there was no QSHE Manager based on site.
I do not believe GCC had a construction manager on site at any time.
All Aegis & Cameron staff were accommodated in a “fly camp” located in the South Western area of the camp, well away from the ongoing construction areas.
Project Routine:
HSE briefs were conducted with all visitors to site and the construction areas would have been out of bounds to persons not involved in construction.
Aegis daily routine would have seen our staff conduct an evening brief, this covered all security related matters, project business and anything relating to site HSE.
The only designated area for fitness training (running) was on the compacted track in the area between T Walls & chain link fence. All staff were aware of this.”
The important points that emerge from this email are that:
(i) it was originally planned that the site would not be occupied until construction had finished;
(ii) in early 2012, Cameron decided to occupy the site, although still under construction, and engaged KBR to provide two Health and Safety Managers;
(iii) The services of the Health and Safety Managers were dispensed with after a short time because they had “raised flags” thereby causing delay to various aspects of the construction, leaving no Health and Safety Manager on site;
(iv) The Defendant's staff conducted daily health and safety briefs covering all security-related matters, project business and anything related to the site.
The accident to the deceased occurred at about 05:30 hours on 29th May 2012. The Defendant immediately launched an investigation, in the course of which witness statements were taken. Ahmed Shati, also contracted to the Defendant, stated:
“About 05:30 hours on 29th 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...
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The Dekagram 9th May 2023
...on s.33 Applications Given by the High Court The High Court handed down judgment in Tyers v Aegis Defence Services (BVI) Ltd & Ors [2023] EWHC 896 (KB) on 28th April George Tyers was a South African national engaged to carry out security work for the Defendant, Aegis Defence Services, at a ......