The "Frostbite" Case.

Alexandra Herald and Central Otago Gazette, Issue 661, 10 February 1909, Page 5

The "Frostbite" Case.

ARBITRATION COURT, DUNEDKf. The appeal by John Wilson, farmer of Lauder, from the decision of Mr Jas. M'Einois, S.M., who, on the 17th December last, at ophir, awarded £l5O damages to John Henry Mervyn, laborer, of Ophir, as compensation for injury sustained by being frostbitten whilst engaged in snowraking on appellant's farm on July 11th, 1908, was heard before the Arbitration Court at Dunedin on Thursday last. The statement filed showed that Mervyn was employed by Wilson as a farm laborer between November of 1807 and July of 1908. On the morning of July 11th Wilson, Mervyn, and four others went search* ing for buried sheep, and Mervyn's feet during the time that he was tramping in the snow became very cold and he lost all feeling in them. When he returned to his hut it was discovered that his feet and ankles were severely frostbitten, but, although everything possible was done for the sufferer, he could not, owing to the snow, be removed to Ophir for medical treatment until July 16th. Then Dr Nicolls discovered that both feet and ankles were swollen, that the tissues were discolored, and that mortification was commencing The latter process was stopped, but Mervyn was still unable to work, and had spent two months in bed. There was no evidence to show carelessness on the part of Mervyn, but counsel for Wilson had contended that the injury sustained by Mervyn was not an accident within the meaning of " The Workers' Compensation for Accidents Act, 1908." The question therefore put to the Arbitration Court was whether or not the judgment of the said stipendiary magistrate in deciding that the injury caused by frostbite to the said John Henry Mervyn was a personal injury by accident arising out of and in the course of the employment of the said John Homy Mervyn by the said John Wilson within the meaning of the " The Workers' Compensation Act, 1908," vvas erroueous in point of law. Mr P. S. K. Macassey appeared for appellant, and Mr J. R. Bartholomew for respondent. Mr Macassey stated the case, and proceeded to quote authorities, and said that the element of accident in this case was altogether absent. ' If Mervyn had fallen from a cliff, sprained his ankle, and lain so long in the snow as to contract frostbite, it would have been an accident within the meaning of the act. In this case Mervyn deliberately went away into the snow, knowing the risk he was taking. He quoted another case wherein a trimmer on board a ship had been effected with heat apoplexy, and had ultimately died. Compensation had been granted, but the argument in that case had been that there was an accident, because there had been a sudden and unexpected emission of heat rays from the boiler, bringing about heat apoplexy. Frostbite was a common thing. Sheep got snowed up, and snow raking took place, and in the course of this work men ran the risk of being frostbitten. The court might take the case of a coach driver, which was analogous. Supposing tbe driver got chilled, and contrasted frostbite or pleurisy or pneumonia—that could oot be called au accident within the meaning of the act. If frostbite was an accident-, so was chilblain, and so was any disease arising out of or in the course of a man's employment. Mr Bartholomew replied to the two points raised by Mr Macassey—that the disease was not covered by the act,; and that it was not an accident, but a disease. A case of this sort was extremely rare. He only knew of. one other similar case, showing that there was a risk in snow-raking which was well guarded against. In the case before the court tbe man did not look for or expect frostbite, though, of course, there was a risk. The knowledge, however, that there was a risk did net mean that if an accident cropped up the than did not expect it. If this man had died the verdict concerning his death must have been accident or suicide. It would have been accident, of course. Even if frostbite was a disease, it was covered by the act, being a disease arising out of or in the course of the man's employment. He submitted arguments to show that if a workman within the course of his employment sustained a physiological injury caused by the nature of his work, it was clearly an accident within the meaning of the act. He submitted that any disease that was not homoeopathic, and that was brought about by causes arising out of the subject's employment, was an accident. The damage caused by extieme cold was distinctly analogous to the damage caused by extreme heat, and there were many cases to show that compensation was granted in the event of a man suffering injury from heat apoplexy. Mr Macassey having replied, the court reserved its decision.