29
from the facts of the instant case. However, differences have arisen as to the amount of
compensation due. To settle this issue, the Court will analyze the evidence submitted
thereto in order to determine: i) Mr. Bueno-Alves’ income as of the time of the facts; ii) his
percentage of work disability; iii) mitigation of damage, and iv) whether Mr. Bueno-Alves
has completely ceased to earn income since the occurrence of the facts.
i)
Mr. Bueno-Alves’ income
141. It is the representative’s view that the Court should consider it an established fact
that Mr. Bueno-Alves earned $15,000.00 (fifteen thousand australes) to $20,000.00 (twenty
thousand australes). Such view is based on the victim’s preliminary examination statement
rendered before Court No. 21 in case No. 25.314. In such statement, the victim said as
follows:
since he is self-employed, he does not earn a fixed monthly income; at times, however, he earns a
monthly average income of approximately fifteen to twenty thousand australes.82
142. The representative considers that this statement carries “full legal force and thus
unquestionable value as a public document which serves as sufficient evidence of the
victim’s monthly income.” For its part, the State challenged such alleged monthly income
and the evidentiary value of the preliminary examination statement.
143. It is the Court’s view that the victim’s preliminary examination statement is not in
itself sufficient evidence of the victim’s monthly income, even though it is part of the
documentary evidence submitted in these proceedings. Said document, which reflects an
allegation of one of the parties, provides an evidentiary element which, though valid,
requires to be collated against the rest of the body of evidence. Consideration should also
be given to the fact that, in said statement, Mr. Bueno-Alves declared that “he does not
earn a fixed monthly income,” that “sometimes” he earned such income, that “he [was]
self-employed […] thus earning a variable income,” and that he did not “own real property,
automobiles, bank accounts, or assets of any nature.”83 Moreover, Mr. Bueno-Alves had
previously stated that he earned a monthly salary of $4,000.00 (four thousand australes).
All these inconsistencies confirm the Court’s view that the victim’s statement should not be
considered conclusive evidence of his monthly income.
144. The other evidentiary items provided by the representative consist of brochures from
Menfis company and a certificate issued by said company director, as well as various
advertising brochures on work allegedly performed by Mr. Bueno-Alves, and two witness
statements rendered before a notary public (affidavit), as well as a supplement to one of
such statements.
145. As to the brochures, it is the Court’s opinion that even though they could prove that
the victim actually performed said work, they do not evidence that his salary totaled the
amount claimed.
146. Regarding the affidavits, these included the statement of Demetrio González, a
former employee of CAMPOLONGHI S.A. He stated that he met Mr. Bueno-Alves and his
brother, Delcio Ventura Bueno-Alves, as they had a business relationship with the
aforementioned company; that they were the “the marble masons recommended to our
best customers and for major or more complex works;” that they did high-quality work;
82
Cf. Record of appendixes to the application, Appendix 11, Vol. II, folio 3050.
83
Cf. Record of appendixes to the application, Appendix 11, Vol. II, folio 3053.
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