The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Supreme Court yesterday dismissed Cable Bahamas’ bid to obtain a $13 million-plus summary judgment over the Robinson Road gas leak, branding the case as “a complex matter” that needs a full trial.

Justice Rhonda Bain yesterday said there were too “many disputes of fact and law” for her to enter an instant judgment in favour of the BISX-listed communications provider.

She added that the key issue needing to be determined at trial is whether Rubis Bahamas, as the wholesaler, or the gas station operator, Fiorente Management & Investments, a company owned by Harcourt and Bianca Carter, was liable for the alleged gasoline spill.

And, in a seeming reference to the controversy that erupted over the Government’s failure to release timely information to nearby residents on the extent of the gas leak, Justice Bain said an “urgent” trial was required because the issues raised were “of grave public importance”.

Barring the way, though, are other applications by the parties, which include a bid by Rubis Bahamas to ‘strike out’ parts of the evidence presented to the court by Cable Bahamas.

The judgment blocks a ‘quick win’ for Cable Bahamas, which had argued that neither Rubis nor Fiorente Management & Investments had a defence to its “negligence and/or nuisance” claims.

The BISX-listed provider had claimed that the only issue to be determined by the Supreme Court was 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 successfully opposed this argument, but yesterday’s verdict likely only delays - and does not prevent - Cable Bahamas eventually picking up damages, although it now forces the company to go to full trial.

Justice Bain found: “The court holds that this is a complex matter and is not appropriate for summary judgment....

“There are many affidavits filed by the [parties] disputing the facts as alleged. There are many disputes of fact and law - the primary dispute being whether [Rubis] or [Fiorente] is liable for the oil spill as alleged.”

She added: “This is a complex matter that cannot be tried on affidavit evidence alone. The court holds that this is a matter that is not appropriate for summary judgment. This matter should proceed to trial.

“As the issues raised in this matter are of grave public importance, this matter should proceed to trial on an urgent basis.

In its initial claim, Cable Bahamas had alleged that the hazardous vapours from the gasoline leak at the Rubis-branded Robinson Road gas station forced 43 of its staff to seek medical treatment before its former 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.

Justice Bain, in yesterday’s written ruling, noted that Cable Bahamas was claiming it had “suffered intermittent emission of gasoline fumes on to its premises for a number of years”.

This problem, she added, “escalated” in late 2012 as a result of the gas leak that is the focus of Cable Bahamas’ action.

Justice Bain noted the BISX-listed provider’s claim that between 20,000 to 30,000 gallons of gasoline had leaked into the ground and surrounding water table, and were leaching on to its property adjacent to the gas station.

“The plaintiff has alleged that the gasoline leak has endangered the environment, particularly the plaintiff’s land and the supply of ground water thereto,” Justice Bain said of Cable Bahamas’ claim.

“Further, that the gasoline leak has also endangered the health, land and property of residents in the surrounding area.”

Cable Bahamas and its attorneys, Callenders & Co, argued that Rubis and Fiorente “had no reasonable prospect of defending the claim” as its basis for seeking summary judgment.

However, Tribune Business previously reported how Rubis and Fiorente, while opposing the summary judgment bid, were pointing the ‘finger of blame’ at each other for a 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, and Rubis also claimed that it was much less than the 20,000-30,000 gallons cited by Cable Bahamas. Fiorente, though, backed the latter’s figures in documents filed with the Supreme Court.

Oscar Johnson, representing Rubis, argued that the Supreme Court needed to examine his client’s relationship with Fiorente.

“The court has to determine whether the actual cause of the fuel discharge was as a consequence of acts of omission by the first defendant [Rubis] or the second defendant [Fiorente],” Justice Bain said.

And Dwyan Rodgers, representing Fiorente, said that apart from determining who was liable for the leak, the Supreme Court also needed to assess whether Cable Bahamas “consented to the alleged nuisance by building their office next to the gas station knowing full well of the risk associated with the operation of the gas station”.

Justice Bain concluded: “The dispute between [Rubis] and [Fiorente] with respect to liability for the gasoline leak have shown that this is a strong case for interrogatories, discovery and cross-examination, which will be available if the case goes to trial but which will be struck out if there is a summary judgment.”