Supreme Court
Action No. 447 of 1998
February 2, 2000
Shanks, J.

Mr. Marshalleck for the Plaintiff
Mr. Dean Barrow, S.C., for the Defendant

Personal injury accident - Contributory negligence - Plaintiff largely to blame for the negligence - Whether second Defendant vicariously liable for the acts of fir st Defendant in causing accident - Leg injury - Assessment of general damages in leg and back injury cases- Appropriate principles applicable.

J U D G M E N T

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.

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.

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.

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.

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.

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 consciously observed workers sitting in the shade of vehicles previously whilst having lunch, but I accept the Plaintiff's evidence (in spite of my criticisms) that this may well have happened from time to time (though not as frequently as he said) and I find that it was something that both the first Defendant and his employers should have had in mind as a distinct possibility. Those are the facts.

Mr. Marshalleck who appeared for the Plaintiff said that the first Defendant for whom the second Defendant accept they are vicariously liable was negligent in driving off without checking his 10-foot blind spot after he had been sitting for some 20 minutes at least eating and talking and clearly not watching out all the time as to who may have sat down in front of the vehicle. It is perfectly clear that he can't have been looking out all the time because the Plaintiff managed to sit there without being observed.

I find this a difficult decision to make, but I think taking into account first of all how dangerous these vehicles are, secondly, the large size of the blind spot with this vehicle and thirdly, the admitted probability that some workers might be taking their lunch sitting in the shade of a vehicle, that it was negligent of the first Defendant to set off driving without making any attempt to check whether there was anybody or anything in the blind spot. As I say, I find this a difficult judgment to make and although I find that the first Defendant was negligent, I do not believe he was very culpable in respect of that negligence.

Mr. Marshalleck also says that the second Defendant was directly negligent in failing to institute some system to prevent this kind of accident. Mr. Barrow somewhat indignantly suggested that this was a wholly excessive burden to impose on an employer unless in this case the employer had actually told the men to sit in the shade of the truck when taking their lunch. In my judgment, as I've said, it probably should have been in the contemplation of the second Defendant employers that men would on occasion do what the Plaintiff did and this probably cast an onus on them to institute some kind of system to see that nobody was run over when the truck was starting off. However, I am not entirely sure in my own mind what such a system should have been nor am I 100 percent confident of that conclusion. But, in any event, in this case it would have made no difference if such a system had existed because as I've said the first Defendant set off in his lorry before the lunch was officially ended in any event. So had there been some system to clear everybody away at the end of lunch it would not have made any difference. The only relevant negligence is therefore the negligence of the first defendant and not the second.

Mr. Barrow says in any event that this accident was caused or contributed to by the Plaintiff's negligence in failing to look after his own safety by sitting down in front of a large truck in a blind spot when he could have sat under a tree and in failing to keep an eye on the cab or hear the noise of the engine being started up. As I've said, the Plaintiff struck me as rather vague, and I accept that, for the reasons Mr. Barrow gives, his failure to look after his own safety was also causative of the accident. Indeed, Mr. Marshalleck conceded as much. But I don't think his negligence was so serious as to break the chain of causation or as to amount to a 100 percent contributory negligence. However, I do consider it the major factor in causing this accident. And taking account of the low level of culpability I mentioned on the part of the first Defendant, I assess Mr. Monjes's responsibility for the accident at two-thirds, and his damages will be reduced accordingly.

That brings me to damages. The Plaintiff's evidence about the effect of the accident on him was this:

" I had scrapes on my back. I had pain in my lower back. I had a broken left leg. I had a big operation which has left me with a scar, one foot long on the outside of my left leg. There are things that I can no longer do. I can no longer play ball. I can no longer chop because of my back. I cannot walk far. I have pain in my legs. I cannot climb stairs or ladders. I cannot jump. I cannot lift weights. If I sit too long, I have pain in the back and if I stand too long as well. My left knee is affected. I cannot kneel, bend, or stoop. I cannot walk too well. I feel that one leg is shorter than the other. I have plates inside the leg which affects me. I have eight screws in the leg and this affects me when it's cold."

There was also a medical report from a Doctor Caragon, dated 29th March, 1999. He described the accident and then he says, the Plaintiff:

"…was operated on in the Corozal Hospital by ourselves putting in a metal plate with 8 screws with a traction in the muscle of 15 cm which placed the bone in place. Afterwards, he was ordered for six months to remain bed-ridden. He continued to go to clinic for six months, once every month. Then he was given exercise to walk on crutches which was monitored by X-rays. His present state is good but having difficulties in moving his legs and also the patient seems to have pain in his vertebral column due to the massive hit he suffered, which even though no fractures occurred, he received a severe trauma in said zone giving him difficulty walking and making long footsteps, transporting heavy objects, or long walks. Even so, the patient is in treatment, he is not ready to do any kind of labour."

Since that report, the Plaintiff has not worked. As far as I know, he is not still in treatment, but he is still using a crutch to help him when he has to stand for a long period. I was shown a very big operation scar on his left leg, but although the Plaintiff said he felt one leg was shorter than the other, Mr. Barrow rightly pointed out that there was no direct evidence about this.

Taking all that into account and looking at the Judicial Studies Board Guidelines, it seems to me this is an injury at the lower end of what they call a "moderately severe leg injury" for which the tariff, if I can call it that, is between 13,250 and 18,250 pound sterling.

Taking account of the back injury which was additional to the leg, and also a case which Mr. Marshalleck referred me to from 1992 called Hogue v Smith, I believe that the right award for this injury in England today would be about 15,000 pounds, that is about $48,076 Bz. From that I deduct 25 percent to reflect different living standards which gives around $36,000 Bz. To that I add agreed special damages of $314.00 which results in $36,314. And then applying two-thirds contributory negligence, I get $12,104 Bz. to which there will be added interest at 2 percent from the date of the Writ, the 21st November, 1998.

(After discussion, Plaintiff's costs to be taxed if not agreed.)

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