IN THF SUPREME COURT OF BELIZE. A.D. 1993

ACTION NO.83

BEFORE the Honourable Mr. Justice Murray Shanks

APPEARANCES:

Mr. Derek Courtenay S.C. for the Plaintiff.
Mr. Fred Lumor for the Defendants.

JUDGMENT

1. This is a claim arising out of a fire that occurred on the 20 February 1993 at about 5:00 p.m. while the Defendants were delivering butane gas to the Plaintiff's tourist lodge near Mountain Pine Ridge The main building known as the "cantina" was destroyed in the fire and the Plaintiff's owner, Mr. Bevis, gave evidence that this had caused a loss of $118,106 to the company. That figure was not challenged by Mr. Lumor for the Defendants. As well as hearing from Mr. Bevis, I heard evidence from Liberata Bolon, who was a kitchen helper in the cantina when the fire broke out, and on the Defendants' side Roque Reyes and his son Miguel Reyes, who respectively owned and managed the Defendants , Antonio Rudon, the driver who made the gas delivery, and Jorge Porras, who was the technical person at the Defendants responsible for safety.

2. The Plaintiff had a stove, a refrigerator, a deep freeze and a beer cooler which all ran on gas in the kitchen attached to the cantina. The gas was supplied from a 100 gallon tank which was stored outside the bar and connected to the various appliances by copper tubing. The cantina was constructed with wooden posts and a thatched roof and palmetto walls. The Defendants had been delivering gas to the Plaintiff for about a year once a month and their staff were therefore familiar with the site.

3. 20 February 1993 was a Saturday. Mr. Bevis called the Defendants and ordered some gas sometime in the afternoon. When Mr. Rudon and his side-man arrived to deliver the gas at 5:00 p.m.. he was in his house about 150 yards away. The only person around was Liberata Bolon who was reading a book in the cantina. According to Mr. Rudon he saw his side-man have a conversation with her (but he did not hear what was said); he assumed that the side-man had verified that all the gas appliances were turned off. Her evidence, which I accept, was that she did not have any conversation with the people who came to deliver the gas. The side-man then took the delivery hose and attached it to the Plaintiff's tank and signaled to Mr. Rudon to turn on the pump which delivers gas at high pressure to the tank. Mr. Rudon told me that before he turned on the pump he also thought the side-man had turned off the outlet valve leading to the kitchen appliances but, again, he did not see him do this. Once the meter on the tank showed that was 85% - 90% full the side-man told Mr. Rudon to stop pumping and went to make out the receipt at which point it was Mr Rudon's job to go and disconnect the hose pipe. While he was disconnecting the hose he saw a flame come through the palmetto wall. His arms, hands and face were burnt but he managed to get away from the flames and drive the truck away from the flames and onto the hospital. At about this point Mr. Bevis arrived at the scene and saw flames coming up the side of the cantina and the gas tank off the cement stand on its side shooting flames and the Defendants' truck being driven away with the hose following behind with gas shooting out of it. In spite of Mr. Bevis's efforts, the cantina and its contents were consumed by flames.

4. It seems to me dear on the balance of probabilities that this accident occurred because there were naked flames in the Plaintiff's kitchen (at least the pilot light on the stove) and because the outlet valve on the tank was left open. It was clear from Mr. Rudon's evidence that he was well aware that at this site it was important to check that them were no naked flames and that the valve was shut, and I find that these measures should have been taken but were not. Since the Defendants' employees were carrying out the hazardous operation of delivering gas and took it upon themselves to carry out the lob without making contact with anyone in authority at the Plaintiff's lodge, I do not see how the Defendants can possibly avoid liability for this accident.

5. Contributory negligence is pleaded against the Plaintiff company. Mr. Lumor relied first on the fact that the gas tank was kept close to the wall of the kitchen which was not air tight and that the stove was not far enough away from the gas tank for safety. I was not referred to any relevant regulations or expert evidence in relation to this allegation but, in any event, the Defendants were the experts in gas and their representatives (particularly Mr. Rudon) were well aware of the layout of the Plaintiffs' cantina. If there was a danger the Defendants ought to have advised that this was the case and taken whatever steps were necessary before agreeing to deliver gas. He also said that it was up to the Plaintiff to be present when the Defendants came to deliver gas and to make sure that any necessary steps taken to make the delivery safe. I accept Mr. Bevis' evidence that he was on his way to meet the Defendants' representatives when he came upon the accident already happening and that he knew the importance of turning off the outlet valve and would have insisted on it being turned off. But I cannot accept that it was necessary for the Plaintiff to have someone waiting for the Defendants' representative; rather, if they needed someone in authority, they ought to have sought out someone before beginning the operation, or, if they did not, they must have taken upon themselves responsibility for the safety of the operation. It was also said that Liberata was not given proper instructions; but she was a new kitchen assistant who happened to be taking her rest break in the cantina; she was not put forward by the Plaintiff as having any authority to supervise anything; again, it was the Defendants' responsibility to see that the delivery was safe. I therefore reject any defence of contributory negligence.

6. There shall be judgment for $118,106 and seven years two months interest at 12%, making a total sum of $219, 677.

SHANKS, J.

Dated this 18th day of April, 2000.