Mr. W.P. Elrington, S. C. for the Plaintiff
Mr. Derreck Courtenay, S. C. for the Defendant

Assessment of damages for personal injuries sustained in a fire accident - Plaintiff partly to blame - Quantum of damages applicable.

J U D G M E N T

1. I have found this a difficult case to decide. Mr. Pennill suffered a serious accident at work on 13th January 1995. He had been working at the Belize Brewing Company for 17 years. He was a very good workman. He had been made a supervisor. In the accident, he suffered serious burns to his arms and hands. He continued to suffer dreams and flashbacks and he has not worked since the accident. I must decide whether his employers, who were generous to him in the aftermath of the accident, are legally responsible for it.

2. The accident happened during the annual process of cleaning and re-coating the inside of the fermentation tanks with mamut. This process involved someone getting into the tank (which is 10 feet high and 8 feet in diameter) with a blow torch (which is supplied with gas by a hose from a butane gas cylinder outside) and applying the hot mamut with a brush while heating the metal surface of the tank with the blow torch. The Plaintiff was given this task. He was wearing a mask provided by the Defendant which also had a hose arrangement to allow him to breathe outside air and some gloves also provided by the Defendant. There was a fan at the manhole entrance to the tank to blow away fumes. When he finished one container of hot mamut the Plaintiff called to his assistant outside the tank to get him a new one. While he was waiting for this to be brought, he turned off the blow torch. When he went to re-light the blow torch to start heating an area of metal again, there was an explosion of gas and he caught fire with the results I have already mentioned.

3. It is clear that the accident was caused by a leak of gas from the blow torch while it was turned off. The Defendant's case is that this happened because the Plaintiff failed to turn it off properly at the tap valve. I am satisfied on the balance of probabilities that this must have been the case. I reach this view in the light of the following:-

I take note of Mr. Elrington's point that it is odd that the Defendants disposed of the torch two years after the accident at a time when these proceedings had begun and of the rather graphic reason given for this by Mr. Turcios when he said that the company does not stock "junk", but I am nevertheless satisfied that the accident was not caused by any fault in the equipment and that the only reasonable explanation was that it was the result of the Plaintiff's own failure to close the valve fully.

4. That is not, however, the end of the case. The Defendants have a duty not only to take reasonable care to see that the equipment they supply to their employees is safe but also that the "system of work" is safe. The operation on which Mr. Pennill was engaged self-evidently presented certain dangers since he was working with a gas blow torch in a confined space. It seems to me that, pursuant to their duty of care as employers, the Defendants ought to have had in mind the possibility that this kind of accident might happen and to have taken whatever steps could reasonably be taken to prevent it. No specific procedures were raised by Mr. Elrington who said that the fact that the accident occurred spoke for itself. I am not sure if it was sufficient simply to say this but it seems to me in any event that there must have been more that could have been done to prevent this accident: for example, the Defendants could have insisted that the blow torch was always kept outside the tank when turned off and lit outside the tank and passed in when needed; or they could have insisted that the Plaintiff remove the mask and check for gas by smell before lighting the torch; or they could have installed some meter or monitor to show a leak of gas.

5. If one or more of those things had been done, on the balance of probabilities the accident would not have happened. In those circumstances, the Defendants are liable for the consequences of the accident. However, there must be a substantial deduction in the Plaintiff's damages for contributory negligence: on the finding I have made, it was the Plaintiff who failed to close the gas valve properly; he had done this job many times before; he must have been aware of the potential dangers and he was certainly responsible for checking the equipment before using it. I would assess the contributory negligence at 40%.

6. I turn to damages. The Plaintiff suffered burns to his left arm and hand and to his right arm (and, to a lesser degree right hand) and behind his ears. He spent 15 days in hospital and was in severe pain. He had four days of physiotherapy on his hands; he can now move his fingers satisfactorily but is left with unsightly scarring to his arms and, most specifically, to his left hand. He also suffered flashbacks and nightmares and these have continued to a limited degree. He was certainly fit to go back to work by September 1995, if not before; but he has not worked since the accident and, sadly, his wife has left him because he has been unable to pay the bills.

7. Mr. Elrington for the Plaintiff submitted that the correct figure for general damages for these injuries was $15-$20,000.00. Mr. Courtenay said this was too high: there was no loss of amenity, a short period of pain and only a short period of inability to work. I think taking account of the shock and pain caused by a burning accident like this, the permanent scarring and the Plaintiff's evident distress and post-traumatic type symptoms, the right award would be $17,500.00, on which there should be 3% interest for five (5) years, giving a total of $20,125.00.

8. All the Plaintiff's medical expenses were paid, so no claim arises in respect of those. He was also paid his salary in full by the Defendant and/or Social Security up to September 1995. At some point before that he was offered his job back by the Defendant and they made it clear that he did not have to work on cleaning and painting the tanks. Nevertheless, he refused this offer. The reason, it emerged, was because he had been promised that the defendant would pay for any necessary medical help and, he told me, Dr, Lizarraga had said he needed a skin graft but they failed to provide him with one. I am afraid that I prefer the evidence of the Defendant's General Manager, Mr. Martinez, to the effect that in fact Dr. Lizarraga said no skin graft was necessary but the Plaintiff was unhappy with this opinion and the Defendants paid for a second opinion from a Dr. Pott for him which confirmed the opinion of Dr. Lizarraga. I regret to say, therefore, that the Plaintiff has failed to mitigate his loss by failing to take up the offer that he should return to his job and that he cannot therefore recover anything in respect of loss of earnings.

9. There shall be judgment for $20,125.00 less 40%, which is $12,075.00.