Supreme Court
Action No. 215 of 1978
October 31st, 1980.
Barrington-Jones, J.

Mr. W. P. Elrington, for the Plaintiff.
Mr. Dean Lindo, for the Defendant.

Damages - Personal injuries - Dispute in evidence of Plaintiff and Defendant as to events leading up to Plaintiff's injuries - Irreconcilable evidence - Court unable to arrive at any definite conclusion how Plaintiff sustained injuries - Application for damages, dismissed.

J U D G M E N T

It is common ground in this case that the Plaintiff entered the Defendant's premises known as the Nueva Ola Club in the Orange Walk District between 6:30 p.m. and 7 p.m. on the night of the 10th September, 1978; and that he later emerged from those premises and made his way to the Orange Walk Hospital where he was admitted.

On the 11th September, the Plaintiff was transferred to Belize City hospital with a history of gunshot injuries to the left eye and injury to the right hand. X-rays revealed that he had multiple pellets to the left side of the eyeball and frontal region of scalp, as well as compound fractures and laceration of the index and middle fingers of the right hand. It transpired that the left eye was required to be removed, but the surgeon managed to save the Plaintiff's index finger but the middle finger was amputated. Three pellets were also removed from his scalp. The Plaintiff recovered from his injuries having lost his left eye and middle finger of the right hand and now suffers from a partial loss of the functions of the left index finger. The Plaintiff was in hospital from the 10th September, until the 18th October, 1978, when he was discharged.

As to what happened in the Nueva Ola Club to cause these frightful injuries there is much dispute. The Plaintiff's version is that after ordering a plate of rice and beans the Defendant said in Spanish words which the Plaintiff understood to mean "I am going to kill this nigger". The Plaintiff said that there was another man at the bar when he went in and that later when the Defendant took out his shotgun the Defendant's wife came from the rear of the premises and urged him not to use it. The Plaintiff said the Defendant then shot him when he (the Plaintiff) was in front of the bar with his hands in front of his face. He said that he fell to the ground and was then hauled into the yard, and later he got up and managed to make his way to the hospital where he was admitted.

The Defendant's version is so very different that it might be thought to refer to a totally different incident. Be that as it may, the Defendant says that the Plaintiff came into the Club and started to laugh and that after he had stopped laughing the Plaintiff asked if he (the Defendant) realized that he was the one who had broken into (the Defendant's) place several times; and continued ….. "the tennis shoes that I am wearing come from this place." He said that the Plaintiff then said: "Not only will I rob you I am going to beat you also." The Defendant said that there was no one else in the Club at any time during the incident. The Defendant said that he noticed that the Plaintiff had a pint bottle in his left hand, and that he then grabbed another pint bottle from the bar with his right hand; and that the Plaintiff then rushed at the Defendant behind the bar. The Defendant said that he looked around for something to defend himself with, and reached for a shotgun under the counter and that as he was doing this the Plaintiff also grabbed at the gun and that there was a struggle and the gun went off and the Plaintiff dropped behind the counter. The Defendant said that the Plaintiff then got up and ran out of the side door of the Club and that was the last he saw of him.

The circumstances after the incident are curious for it seems that the Defendant made no attempt to call the police; and it was suggested to me that the Plaintiff had not been anxious to give any details as to how he had sustained his injuries when he was interviewed by the police later that night. It also transpired that the police did not interview the Defendant until some five days after the incident.

From the evidence it became clear that there had earlier been criminal proceedings concerning this incident and Counsel referred to the preliminary inquiry held into this matter. However, Mr. Elrington asked that I should not refer to the proceedings in the preliminary inquiry, and I have not done so; but I would remark that his request has only made it more difficult for me to assess the veracity of the evidence both of the Plaintiff and the Defendant for I have thus had no opportunity to compare what was said in those proceedings with the evidence which was given before me here.

It therefore come to this, the evidence given by the Plaintiff and the Defendant, without any other witnesses, is so diametrically opposed and so totally irreconcilable in any material particular to such an extent that I am quite unable to find on a balance of probabilities the circumstances in which the Plaintiff sustained his injuries in the Nueva Ola Club on the night of the 10th September, 1978.

It therefore follows that the Plaintiff's claim must fail and the Action is accordingly dismissed.

I make no order as to costs.

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