Noguera v Deaguilar

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Dickson, C.J.
• Judgment Date: 15 February 1974
• Neutral Citation: BZ 1974 CA 6
• Docket Number: Civil Appeal No. 44
• Date: 15 February 1974

Court of Appeal

Dickson, C.J.

Civil Appeal No. 44

Noguera

and

Deaguilar

J. C. Gray for Appellant

I. G. Peera amicus curiae for Respondent

Industrial Law - Workmen's Compensation

Workmen's Compensation - Fatal Injury

Facts: Employer — Deceased workman on loan by appellant/employer to third party fatally injured when travelling to workplace of third party in van of third party — Employer denied liability for compensation of dependants of deceased — Whether deceased workman was employed by the appellant/Employer at the time of his death

Facts: Workman — Temporarily loaned by employer/appellant to third party — Fatal injuries suffered by workman while on route to place of business of third party — Deceased workman travelling in van of third party — Whether workman was employed by appellant at time that he was killed

Held: By virtue of s. 2 of Workmen's Compensation Ordinance the deceased workman was employed by the appellant — Appeal dismissed.

Held: By virtue of s. 2 of Workmen's Compensation Ordinance a workman who is temporarily lent to another person by the person with whom the workman has entered into a contract of service continues to be employed by the person who has so lent him — Appeal dismissed.

1 The respondent in this case, Mrs. Felipa Galan de Aguilar, brought a claim in the Magistrate's Court in the Corozal Magisterial District under the Workmen's Compensation Ordinance 1959, in respect of the death of her husband Gonzalo Aguilar of Calcutta Village, in the Corozal District. The claim is made on behalf of the widow and other dependants of the decreased being his children. The claim was originally made against the Appellant and one Mr. Vildo Marin. The hearing before the Circuit Magistrate commenced on 13th May, 1970, and on the conclusion thereof on the same day, the Magistrate made an Order dismissing the claim against Mr. Vildo Marin, by finding that on the material date the late Gonzalo Aguilar was not employed by Mr. Marin. In his findings, the Magistrate was satisfied that the Appellant was liable under the Ordinance to pay compensation, and he made an Order that the Appellant pays $5,500 to the Respondent.

2 At the close of the case for the Respondents in the lower Court, Counsel submitted that action should be struck out on these grounds:–

1

No medical testimony that the workman met his death by some actual accidental cause. 2. No proof that the accident occurred in the course of employment. 3. No proof as to who was the employer.

3 The Magistrate overruled Counsel, whereupon Counsel for the Respondents told the Court he will not be calling any evidence. The trial Magistrate there and then in succinct and clear decision made the following findings:

“From the evidence which was presented at the hearing of this Application for Workmen's Compensation, it was manifestly clear that:–

• (a) The Applicant Felipa Galan was in fact the wife of the deceased, Gonzalo Aguilar and totally dependent upon him, and, as such, was competent to claim compensation for the death of her husband.

• (b) Gonzalo Aguilar was, up to the time of his death, employed by Mr. Jaime Noguera, as a cane cutter, and was residing at Noguera's Camp, at Calcutta Village, in the Corozal. District.

• (c) On the morning, of the 16th April, 1969, when he met his death, Gonzalo Aguilar was still in the employ of Noguera, and was on loan to Vildo Marin, for the purpose of working in Marin's Canefield.

• (d) Acting on Orders received from his Employer Jaime Naoguera, Gonzalo Aguilar was travelling in a Land Rover driven by Vildo Marin, when the vehicle was involved in an accident, which resulted in the death of Aguilar.

• (e) Jaime Noguera, both verbally to Felipe Galan, Lloyd Hepburn and Leonides Cueller, and also by his action in giving Felipa Galan, money to a total of $1,050.00, admitted liability in this matter.

• (f) The sum of $5,500.00 claimed by the applicant, is the amount prescribed by law.

From the evidence, therefore, I was perfectly satisfied that the applicant's claim had been substantiated, having regard to the evidence, and that Jaime Noguera was in fact liable to pay the amount of $5,500.00 claimed by the applicant. I do not consider that Vildo Marin was in any way liable, as Aguilar was on route to Marin's cane field, to do work, as ordered by Jaime Noguera, who was, in fact, Aguilar's employer.

As a result of my findings, therefore, I ordered Jaime Noguera to pay the applicant, the sum of $5,500.00, as Compensation due her for the death of her husband Gonzalo Aguilar, who was killed on the 16 ^th April, 1969, as a result of an accident arising out and in the course of his employment, and whilst in the employ of the said Jaime Noguera.”

4 In the grounds of appeal dated 31 ^st May, 1971, it is said:

• (1) The Magistrate took extraneous matters in consideration.

• (2) Inadmissable evidence was wrongly admitted by the Inferior Court and there was not sufficient evidence to sustain the decision.

• (3) The decision was erroneous in point of law.

• (4) The decision could not be supported having regard to the evidence.

• (5) The sentence was unduly severe. (sic).

5 At the hearing of this appeal Counsel for the appellant submitted:

• (1) there is no evidence to support the Magistrate's finding as stated in paragraph (d) of his Reasons

• (2) There is no evidence to support the finding as stated in paragraph (c) of his Reasons.

• (3) The evidence does not disclose under what arrangement the deceased entered the Landrover; the evidence does not disclose the condition of work whether on a weekly or daily basis, and also that the evidence does not show that on the morning of 16th April, 1969, the deceased was still employed by the appellant. Counsel also submits that one of the grounds the Applicant would have to prove is that the deceased met his death while working; and that there was no evidence that the appellant directed the deceased to work for Mr. Marin.

6 The facts of the case as disclosed by the evidence before the Magistrate that the deceased was married to the appellant in Tisimin Yucatan, Mexico and that there are six children of the marriage. The deceased had been working for appellant for three cane seasons; that the respondent and her children lived on the appellant's camp at Calcutta which belonged to the appellant. There is evidence that the deceased was paid weekly by the appellant and that on the morning of 16th April, 1969, whilst the deceased was in the employment of the appellant, the former and other of his the appellant's employees were sent in a landrover driven by Mr. Marin to whom they had been loaned...