The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Cable Bahamas yesterday pressed ahead with its bid for summary judgment over its initial $15 million damages claim relating to the Robinson Road gasoline leak, after efforts to strike out key evidence failed.

Fred Smith QC, the Callenders & Co attorney representing Cable Bahamas, confirmed to this newspaper that Rubis Bahamas had lost its bid to “expunge” key documents at both the Supreme Court and Court of Appeal levels.

The petroleum wholesaler had also sought a ‘stay’ of the summary judgment proceedings, but Mr Smith said this, too, was refused by the Court of Appeal.

As a result, Cable Bahamas’ summary judgment application proceeded yesterday in the Supreme Court before Justice Rhonda Bain, in what is scheduled as a two-day hearing.

“Rubis had objected to without prejudice correspondence being admitted as evidence,” Mr Smith told Tribune Business. “They asked for leave to appeal from Justice Bain, and she refused.

“They then applied for leave to appeal, and applied for a stay of the Supreme Court action prior to the appeal.

“The Court of Appeal refused Rubis leave to appeal, dismissed their application and refused to give a stay of the Supreme Court proceedings....

“The parties went back before Justice Bain [yesterday and today] for the summary judgment trial on liability.”

While the Court of Appeal ruling on the ‘evidence strike out’ application has yet to be made public, Justice Bain’s initial January 15, 2015, decision on the matter shows Rubis wanted to documents removed.

These were a letter it sent to Cable Bahamas on February 5, 2013, and a powerpoint presentation it made to the BISX-listed communications provider on the Robinson Road gas spill on June 11, 2013.

Gordon Craig, Rubis Bahamas managing director, alleged in a December 5, 2014, affidavit in relation to these documents: “Not only did Cable Bahamas renege on the Access Agreement for spurious reasons, but I am advised, as aforesaid, that it has wrongfully exhibited documentation which was provided to it on a clearly without prejudice basis (and which Rubis will apply to have expunged from the record).”

Justice Bain, though, noted that the letter, powerpoint presentation and Access Agreement were included in Mr Smith’s submissions at a Supreme Court hearing on December 18, 2014.

Yet Oscar Johnson, the Higgs & Johnson attorney representing Rubis, was present at the December 18 hearing “and raised no objection” to any of these documents “being referred to or being admitted into evidence”.

Justice Bain said it was only at a January 15, 2015, hearing, where Mr Johnson made Rubis’s submissions, that the issue of striking these documents as evidence was raised.

She noted that Mr Johnson described the letter and presentation as having been produced “in a spirit of collaboration” between Rubis and Cable Bahamas, and he also objected to the Access Agreement becoming evidence.

Justice Bain ruled against “expunging” these documents as evidence, finding that Rubis should have formally applied to do this and “raised objections” prior to Cable Bahamas closing its case and tendering them. The affidavit from Mr Craig was deemed “not sufficient”.

John Gomez, Cable Bahamas’ vice-president of technology and engineering, in a November 14, 2014, affidavit alleged that the February 5, 2013, letter showed Rubis “accepted and assumed full responsibility” for the leak at its Robinson Road gas station by repairing the faulty pipe, then undertaking assessment and remediation efforts.

According to Mr Gomez, the letter said Rubis became aware of the leak “on or around January 21, 2013”, with the station re-opened two days later after repairs were complete.

The Rubis letter, according to Mr Gomez’s affidavit, acknowledged that it became aware of “a high concentration of carbon vapours” at Cable Bahamas’ customer service building two days later.

It then allegedly described recovery efforts, which included the drilling of 34 monitoring wells and nine recovery wells; eight dual phase recovery wells around Cable Bahamas’ building; and the recovery of 16,500 gallons of mixed water and fuel.

The letter lists further recovery measures, and then allegedly says: “Our priority for the coming weeks is to eliminate all sources of vapour entry into the building so that it can be occupied safely by Cable Bahamas.

“Longer term, the plan is to continue the remediation until all free product is removed from your property and ours, and until the hydrocarbon levels in the ground soil and water are determined to be safe, and to pose no risk to human exposure.”

The Rubis letter allegedly advises on further health and safety measures, and adds: “We fully appreciate how disruptive incident has been to your operation, and we appreciate the spirit of collaboration between your team and our team to take all necessary corrective actions to return the building to a safe condition so that your operations can resume at this building as quickly as possible.”

Cable Bahamas is arguing that neither Rubis nor the gas station operator, Fiorente Management & Investments, which is owned by Harcourt and Bianca Carter, has a defence to its “negligence and/or nuisance” claims, hence the summary judgment move.

It is arguing that the only issue to be determined is the amount of damages both, or just one, should pay for loss of its customer service building, associated expenses and impact to employees’ health.

Both Rubis and its gas station operator, Fiorente, are opposing this argument while, Supreme Court documents show, pointing the ‘finger of blame’ at each other for the 24,000-30,000 gallon gasoline leak that has impacted the environment and human health in the surrounding area. The Government subsequently suggested the leak is nearer 12,000 gallons.

In its initial claim, Cable Bahamas had alleged that the hazardous vapours from the gasoline leak had forced 43 staff to seek medical treatment before its customer service building was closed in late January 2013.

Pointing out that it had been denied use of this building ever since, Cable Bahamas alleged it would cost at least $8.6 million to either clean up the water table pollution or build a new customer service centre elsewhere.

And it is claiming $4.432 million in ‘special damages” to recover the costs, and revenue loss, associated with having to move its customer service operations and marketing arms to the Mall at Marathon and East Street, respectively, as a result of the gas leak.