De La Cruz Monjes v Lima et Al

• Jurisdiction: Belize
• Judge: Shanks, J.
• Judgment Date: 02 February 2000
• Court: High Court (Belize)
• Docket Number: 447 of 1998
• Date: 02 February 2000

High Court

Shanks, J.

447 of 1998

De La Cruz Monjes

and

Lima et al

Appearances:

Mr. Marshalleck for the plaintiff.

Mr. Dean Barrow, S.C., for the defendant.

Damages - Personal Injury — Plaintiff two thirds contributorily negligent — Leg injury, residual scarring, pain in vertebral column, difficulty walking — Quantum — Award of $36,000 general damages — Reduced by two thirds — Final award of $12,104.

Shanks, J.

1 This is a claim for damages for personal injury arising out of an accident suffered by the plaintiff on the 8th of July, 1998. I heard evidence from the plaintiff and the first defendant, Mr. Lima.

2 At the time of the accident, both the plaintiff and the first defendant were working for the second defendant who were laying cables in the Tower Hill Area of the Orange Walk District. Both the plaintiff and the first defendant had been working for the second defendant for only three weeks when the accident occurred. The plaintiff was a general labourer working with a shovel, helping to make and refill trenches. The first defendant was the driver of a water truck. This was quite a large truck and had a 10-foot blind spot at the front. On the day in question, there was a team of about 30 men working at the site with the plaintiff. There was also certainly a digger, a backhoe, and the first defendant's water truck. The plaintiff told me there were about 15 vehicles in all. But although the defendant told me about 14 or 15 different vehicles were being used by Alcatel, he said there were only about three present on that day. It is common ground that the men stopped work for lunch at 12:00 p.m. and the first defendant parked his truck on the side of the road in a clear grassy area.

3 The first defendant said that he sat in his truck and started eating his lunch. He told me there were two groups of men, one to the right under some trees and another to the left in a canefield also eating their lunch. The plaintiff denied that there were any trees around and said that he, therefore, sat in front of the defendant's vehicle in order to have some shade in which to eat his lunch. He told me that he had done this almost everyday that he had been working with Alcatel and that all the workers regularly did this. The first defendant said that he had never seen workers sitting in the shade of vehicles to eat lunch, but he did accept that it was probable that it had happened on occasion.

4 There was in effect no dispute about the circumstances of the accident itself. The plaintiff told me he was alone sitting about a yard in front of the truck and facing in the same direction as the truck. He had finished his lunch and was waiting to be told to get back to work when the truck ran over him. He had no idea it was coming and made no attempt to move out of the way. The first defendant told me that while he was eating his lunch a colleague of his joined him in the cab and ate with him, that they finished their food after about 15 minutes and then they decided to go and get a soft drink from somewhere quarter of a mile up the road in the five or so minutes remaining for lunch. He told me he started his vehicle, took a moment to put his bag to one side, engaged first gear which was very noisy, and pulled away. He heard a crack under the truck and assumed first that someone had left a bag of rubbish in front of the vehicle. Unfortunately it wasn't a bag, it was the plaintiff who not surprisingly suffered serious injuries as a consequence of the accident which I will describe later.

5 As I have indicated, the areas of disputed fact between the parties were really not very great. In general where there was a dispute, I found the first defendant a more reliable witness. The plaintiff, who I am sure was doing his best, was extremely vague about things and appeared almost dazed. This may well have been in part a consequence of having to re-live the accident, but his vagueness about certain things did make his evidence less reliable. He was extremely vague in particular about the vehicle being driven by the first defendant. He didn't know what his function was and he was convinced that lunch lasted an hour, which I am convinced by the first defendant's evidence was not the case (it probably only lasted 20 or 30 minutes). It was also the fact that he failed to notice a very noisy truck starting up about 3 feet away from him. In my judgment, he must have been either fast asleep or heavily day dreaming to have done so.

6 I, therefore, find that there were only three vehicles around on that day and that there was some shade to be had other than beside the vehicles. I also find that the first defendant had not...