UNIQUE CASE

Ashburton Guardian, Volume 56, Issue 27, 13 November 1935, Page 8

UNIQUE CASE

DAMAGES FOR INJURY SOUGHT.

ACCIDENT AT ASHBURTON CLUB.

STRUCK BY FALLING BOTTLES.

INTERESTING LEGAL ARGUMENT. (Special to the “Guardian.”) CHRISTCHURCH, This Day. A question stated to be without precedent in the British Empire was argued in the Supreme Court before MiJustice Norther oft this morning. The point was whether the member of a society registered under the Friendly Societies Act, 1909, can bring an action for damages against the society.

The plaintiff was Joseph Edward Fuss ell. truck-driver, of Ashburton, who claimed damages amounting to £635 from William Henry Amos (accountant), Frederick Benest Robilliard (jeweller), and Alfred Augustus Fooks (engineer), as trustees of the Ashburton Club and Mutual School of Arts. Mr F. Donnelly and Mr Vernon W. Russell (Ashburton) appeared for plaintiff and Mi* W. D. Campbell (Timaru) and Mr R. Kennedy (Ashburton) for defendants. The statement of claim set out that plaintiff was a member of the defendant club, which was a society registered under the Friendly Societies Act, 1909. On November 9, 1934, at 11.30 a.m., he entered the Club premises and went into the bottle store, standing at the counter beside the ice chest, which was eight or nine feet high. On the top of the chest was a number of bottles of beer and other liquids, some of which fell on plaintiff’s head, seriously injuring him. Plaintiff contended that- the bottles fell as a result of the negligent maimer in which they were, stacked and placed without, a barrier and in unreasonable numbers. He claimed £135 special damages, including medical expenses and compensation for employment lost while lie was incapacitated, and general damages amounting to £SOO. The - defence was that being a member of the defendant club, was an owner and consequently could not sue himself.

A further point raised in the defence was that plaintiff in any case could not resort to the courts but under the Friendly Societies’ Act and the club’s rules must have his claim settled as provided by the club’s rules—in this case by the club’s committee. The hearing this morning was for the purpose of hearing legal argument on points of law to determine whether the action could proceed.

Contentions for Plaintiff.

Mr Donnelly said there were two questions of law to be argued prior to the hearing of the claim. The question was altogether new in certain aspects, especially the point of whether a member of such a society as the defendant club had any nights against the management in respect of the injury received. Counsel reviewed the facts of the .case, pointing out to his Honor that the full name of the club was the Ashburton Club and Mutual School of .Arts.

His Honor (with 1 a smile): I have noticed it.

In the course of his introductory remarks Mr Donnelly also recalled the charter legislation, and said that the charter was the club’s main asset.

The first question dealt with by Mr Donnelly was whether the claim was a dispute within the meaning of the Frfiendly Societies Act. He quoted .Section 72 of the Act which, in brief, stated that disputes between members and the society • had to be settled according to the rules of the society. Rule 34 of the Ashburton Club was to the effect that such disputes should be decided by the committee and should be binding on the parties and not removable into the courts. Mr Donnelly contended that this rule was intended to refer to disputes arising out of the ordinary relations between members and the cldb and not/ to a special case such as the present action. In connection with the claim, there would be difficult questions raised, such as whether there was negligence on the part of the barman, and points as to the amount of damages. The statute did not contemplate such questions being left for decision to the club committee.

At this stage Mr Donnelly mentioned that there was no personal claim against Amos, Robilliard and Fooks. They were sued by virtue of their office as trustees only.

Mr Donnelly then dealt with the second question, whether a member of a friendly society could bring an action against it, contending that the Ashburton Club was an entity quite

separate and distinct from its members.

Mr Donnelly submitted that tho club was occupier of its premises and that the chief steward was the servant of the club, a member having no control over him. Under the club’s Rule 15 the club management was vested in the committee. The club was unlike other friendly societies in that it paid no financial benefits, although members received other benefits which were considered important. His Honor: Especially in Ashburton! Mr Donnelly: There is a waiting-list for membership. Mr Donnelly said that no member of the club could ha.ve any interest in the property or the assets of the club. In conclusion counsel described the points dealt with as novel and exceedingly interesting, , . Mr Campbell said that the two points raised were insuperable difficulties in the way of plaintiff. Tne first was that plaintiff would be suing himself, and the second that if he nad a claim it was a dispute withm Section 72 of the Friendly Societies Act, and must be decided by the tribunal as laid down in rules of the club. He contended that the club had no legal existence apart from the membeis composing it, and for a man to take action against himself was, as Euclid 'said “reductio ad absurdum.” . His Honor asked, on what principle of law should not a man be able to come before a court to assert lus own rights against a number of whom ne was one? Admittedly it would be absurd if he were the sole litigant on both sides. „ , J , Mr Campbell replied that as far as he could find no such action had ever been taken, the reason apparently being that it had never been considered that there was such right of action. The Ashburton Club was not incorporated. Plaintiff was suing niniself, and if he succeeded would have to enforce judgment on property of which he was joint owner. “I am beholden to counsel for giving me such an important question on such an important day,” said liis Honor, stating that he would reserve decision. Mr Donnelly raised a laugh with lus filial comment on the case. “I hope the case will not be used for political purposes. It is the only known ease of man being stunned by external application of a large quantity of beer.”