Flow sues Gov’t, CHEC over infrastructure damage from road project

One of the island’s major telecommunication firms, Cable and Wireless Jamaica, known as Flow Jamaica, is suing the Government and China Harbour Engineering Company (CHEC) to recover millions for damage allegedly done to its infrastructure during the implementation of the Major Infrastructure Development Programme (MIDP) along several roadways in Kingston.

The company is also seeking to recover monies that were rebated to customers when the system was down as a result of the infrastructural damage.

The multibillion-dollar programme funded by the Government and China Exim Bank, which started in 2014 and which was completed in 2020, saw improvement work done on 470 kilometres of roads across several parishes and 12 bridges repaired and constructed.

However, the telecommunications company is contending that the Government and or its servants or agents as well as CHEC, the main contractor, caused significant damage to its infrastructure along several roadways in the Constant Spring areas, on Mandela Highway, in Hagley Park, Barbican Road, Camp Road, Hagley Park, and in the Three Miles area, all in the Corporate Area.

This damage, Cable and Wireless alleges, caused it to incur significant loss and expenses.

The claimant, in pursuing legal action, named the National Works Agency (NWA) as the first defendant, the attorney general of Jamaica as second, with the engineering company being the third.

In the meantime, the High Court earlier this month granted China Harbour permission to appoint an expert witness as well as an order for Cable and Wireless and the Government to disclose all the notices of the road works that were issued.

A trial date in the matter has been set for November 6.

The telecommunications company in documents filed contended that the Government and or its agent along with the contractor had a duty of care to take reasonable steps to inspect and ascertain the existence of latent risks/dangers which were reasonably suspected to exist.

It also alleged that as a result of the defendants’ failure to provide 24-48 hours notice of works, it sustained significant damage to infrastructure located along various segments of the MIDP and consequently had to seek injunctive relief from the high court

Act reasonably

Additionally, Cable and Wireless claims that the defendants were all notified about the challenges it was facing and that they had a duty of care to act reasonably and within a reasonable time when executing the works.

Furthermore, the company claimed that China Harbour was duly authorised by the NWA and the Government to take possession and carry out excavation work and had a duty of care to act reasonably and within a reasonable time when executing the roadwork given that Cable and Wireless had a long history of work in the county and the significant extent of its infrastructure.

However, the Government, in its defence, filed by the attorney general and also on the NWA’s behalf, counters that the telecommunication firm is at fault, owing to its own negligence.

The defence asserted that adequate notice of the work was given to the claimant at all material times. It also claimed that the company participated in regular stakeholder meetings but subsequently delayed or failed to relocate, expose, or disclose the locations of its infrastructure.

The Government also accused Cable and Wireless of breaching its obligation to provide a suitable representative onsite who could assist in the resolution of technical issues on site.

Consequently, the State said the claimant’s negligence in failing to or in a timely manner relocate its infrastructure after being notified of work to be undertaken would have caused any damage, loss, expenses, or cost incurred.

Furthermore, it added that the claimant’s current licence did not provide for reimbursement of the cost of relocation of its infrastructure.

China Harbour, in its defence, maintains that any loss or damage incurred was legally or materially caused by the acts of omission on the part of the claimant.

While denying that it had acted recklessly and trespassed on the Cable and Wireless infrastructure, the engineering company asserted that the claimant failed to fulfil its end of the bargain despite being notified of the work schedule and of a request to have an onsite representative.

Consequently, the company claimed there were repeated occurrences where infrastructure was unexpectedly encountered, but that in all such circumstances, the claimant was notified to remove and relocate its assets to avoid damage.

Additionally, the contractor asserted that the claimant failed or refused to provide resources to relocate its assets and that it was not aware of any obligation by the company or the State to provide reimbursement for the relocation of its infrastructure or to compulsorily acquire property to facilitate relocation.

At the same time, the engineering company also countered that the claimant’s ignorance of the notices and or its failure to comply had stopped the work’s progress and had caused the work to decelerate.

Attorney-at-law Lisa White of the Attorney General’s Office represented the attorney general and NWA. Mark-Paul Cowan appeared for CHEC.

Attorneys-at-law Denise Kitson, K.C. and Regina Wong are representing the claimant.

tanesha.mundle@gleanerjm.com