What can I do if I am injured at work in Trinidad and Tobago?

The employer’s duty of care

At common law an employer must take reasonable care for the safety of its employees, including a safe system of work with proper supervision, adequate plant and equipment, and competent fellow workers (Wilsons & Clyde Coal Co Ltd v English, a House of Lords decision that is persuasive in Trinidad and Tobago). If you lose your job after an injury, see being dismissed.

It is not a defence that a fellow employee’s negligence caused the injury (Supreme Court of Judicature Act (Chapter 4:01), s 30). If the worker was partly to blame, the damages are reduced to the extent the Court thinks “just and equitable” (s 28(1)).

Workmen’s compensation

Under the Workmen’s Compensation Act (Chapter 88:05), if “personal injury by accident arising out of and in the course of the employment” is caused to a workman, the employer is liable to pay the compensation set by the Act (s 4(1)). But:

• no compensation is payable for an injury that does not disable the worker for at least 3 days from working for full earnings (s 4(1)(a));
• compensation is disallowed if the injury is attributable to the worker’s “serious and wilful misconduct”, unless the injury results in death or serious and permanent disablement (s 4(1)(b)).

A “workman” works under a contract of service or apprenticeship, by manual labour or otherwise. The Act excludes people employed otherwise than by manual labour whose earnings exceed TT$5,000 a year “or such other sum as may be prescribed”, casual workers employed otherwise than for the employer’s business, outworkers, family members living in the employer’s house, and members of the Defence Force, the Police Service, certain other police organisations and any Fire Service (s 2(1)).

Notice of the accident must be given to the employer or a supervisor “as soon as practicable” and before the worker voluntarily leaves that job, and the claim must be made within 1 year from the accident or the death. A missing or defective notice is not fatal if the employer knew of the accident at the time or was not prejudiced, and neither a notice failure nor a late claim is fatal if caused by mistake, absence from Trinidad and Tobago or other reasonable cause (s 11). If the employer and the worker cannot agree on liability or the amount, the question is settled by a Commissioner, and no court may deal with it; the Masters of the High Court are the Commissioners, and in Tobago the Magistrate assigned to that duty is also one (ss 30, 31).

How much is workmen’s compensation?

The amounts depend on the worker’s monthly earnings (s 5(1)):

• where the injury causes death and the worker leaves dependants wholly dependent on their earnings, a lump sum equal to 36 months’ earnings; where the dependants were only partly dependent, a sum agreed or, failing agreement, set by a Commissioner, not more than that; and where there are no dependants, reasonable burial expenses up to $500;
• for permanent total disablement, 48 months’ earnings for an adult, or 96 months’ earnings for a worker under 17;
• for permanent partial disablement, a percentage of the amount for permanent total disablement: for an injury listed in the Second Schedule to the Act, the percentage stated there, and for any other injury, a percentage proportionate to the incapacity it permanently causes (s 5(1)(c));
• for temporary disablement, half-monthly payments, each equal to one-third of monthly earnings for an adult, while the disablement lasts or for 5 years, whichever is shorter.

Some deductions and limits apply (s 5(2)–(3)). After a worker’s death, “dependants” can include a woman who, though not married to him, lived with him as his wife for at least 12 months immediately before his death or incapacity and depended wholly or partly on his earnings (s 2(1)). See also family claims after a fatal accident.

National Insurance employment injury benefit

Separately, every employed person is insured under the National Insurance Act against personal injury “by accident arising out of and in the course of that person’s employment”, and the contribution for that cover is paid wholly by the employer (National Insurance Act (Chapter 32:01), s 37). Employment injury benefit may be an injury benefit while the person cannot work, a disablement pension or grant for loss of physical or mental faculty, or a death benefit for survivors (s 46(3)). Entitlement and amounts depend on regulations made under that Act.

Compensation and damages together

A worker aged 17 or over who has received compensation under the Act may still sue the employer for damages, but only within 4 years from the date on which the cause of action accrued (s 4(3)). Because that period is set by this Act, the date-of-knowledge rule and the court’s power to allow a late claim do not apply to it (Limitation of Certain Actions Act (Chapter 7:09), s 19). A Commissioner awarding compensation must take into account any damages the worker has recovered for the same injury (s 4(4)).

If someone other than the employer is legally liable, the worker may claim damages from that person as well as compensation from the employer, and whoever paid the compensation may recover it from that person (s 15).

Occupational safety and health

Every employer must “ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees” (Occupational Safety and Health Act (Chapter 88:08), s 6).

Where a breach of the Act causes death, critical injury or an occupational disease, the employer, occupier or owner is liable, “without prejudice to any other liability or right of action”, to a fine of $100,000 or 3 years’ pay of the person concerned, whichever is greater, and the court may apply all or part of the fine for the benefit of the victim or their estate (s 86(1)).

The Act does not say in terms whether a breach gives a claim for damages in the High Court, but an aggrieved person may apply to the Industrial Court for redress, and that Court may make an award in their favour (ss 83, 83A). Proceedings under the Act must be started within 2 years after the cause of action arose (s 97B).

Time limits

A claim for damages for personal injury must generally be filed within 4 years from the date the cause of action accrued or the date of knowledge, and the Court has power to allow a later claim, except in the workmen’s compensation case above (Limitation of Certain Actions Act, ss 5, 7, 9). See personal injury time limits.