COMPENSATION CLAIMED

Press, Volume LXX, Issue 21324, 17 November 1934, Page 20

COMPENSATION CLAIMED

DEATH OF MILL HAND ARBITRATION COURT CASE A claim under the Workers' Compensation Act was heard in the Arbitration Court yesterday, when Margaret Isabel Franks, widow of Francis Gilbert Franks, proceeded against her husband's employers, J. Curragh and Company, Ltd., threshing mill proprietors. Franks, who was employed as a feeder on one of the defendants' mills, met his death through a collision at Templeton, on April 4, with the second express from the south. His Honour Mr Justice Frazer presided over the court, and with him were Messrs W. Cecil Prime (employers' representative) and A. L. Monteith (employees' representative). Mr W. J. Hunter appeared for the plaintiff and Mr R. A. Cuthbert for the defendant. The plaintiff stated in her claim that she with her two infant children were entirely dependent on the earnings of her husband. She claimed such compensation and funeral expenses as she might be entitled to under the Workers' Compensation Act. Mr Cuthbert, for the defence, submitted that Franks's death did not arise out of and in the course of his employment. The defence denied that Franks was engaged in his employer's business at any time on the day of his death after he left Waddington, where the mill was. Whatever work he did on that way was as a volunteer, and not under contract service Even if what he did on that day could be said to be within the scope of his employment, the defence held that while travelling on that day he was doing so not as an employee of Curragh but on his own business. The defence would" call evidence to establish that Franks was killed while making a deviation, on his way back from town to Waddington, via the defendants' yard at Templeton, the object of the deviation being to see a friend named Drayton, and to have a cup of tea with him. The defence relied on the principle •of added peril The circumstances of Franks travelling on a motor bicycle at the time of his death and the circumstances m which he approached the railway crossing where he was killed were such as to constitute an added peril, so that the risk he ran was not incidental to his employment. Case for the Plaintiff Mr Hunter, in presenting the case for the plaintiff, said that Franks was employed as a feeder, a position next to that of the driver, on the defendants' threshing mills, at an average weekly wage of £4 10s. At the time of his death he was a married man with two children. He had been in the employ of Curragh for seven years, enjoyed his confidence, and was regarded as one of the family. The drum and spindle of the mill, which had to be repaired, were already in Templeton on the day in question and were then to be brought into Christchurch. It was to be remembered that the position of feeder was an important one, and that he had to be prepared for work at any time, particularly if the machinery broke down. It was therefore part of Franks's duty to be on hand until the machinery was repaired and replaced in the mill, as it would have been the "next day.

Franks had taken the opportunity of being in Christchureh to transact some small business of his own. This, Mr Hunter submitted, was of no more importance than a visit to the barber would have been, and the main object of his visit to Christchureh had to do with the broken piece of machinery. The machinery was brought on a lorry to Sockburn, where work was done on it in Ell's yard, then to Bowman's yard at Riccarton, and later to Anderson's foundry. Franks used a motor-cycle which was kept at Curragh's place at Templeton. rode on it to Sockburn, and left it there, coming into Christchureh and returning to Sockburn on the lorry. In the late afternoon he left there for Templeton, arrived there about 7 p.m., and waited for the lorry.

Bert Curragh, son of James Curragh, and driver of the mill, reached Templeton from Sockburn by motorcar, and according to him Franks said "I will go round and pick up Drayton," who was a friend and a fellowworker. Curragh replied, "Drayton will be at our place all right: I have told him to come round." Franks said, however, that he would go round to Drayton's place and would perhaps get a cup of tea there. He went back a few yards on his bicycle to the railway crossing, and in crossing was struck by the express and killed. Franks had a midday meal and probably nothing after that, continued Mr Hunter, and he invited the court to accept the inference that his real object in going to Drayton's was to get a meal; another inference was that he went to pick up Drayton; or perhaps there was a combination of the two to get a meal and to assist his employer by picking up Drayton. If he had been killed between Christchurch and Templeton, a valid claim would have arisen, and his turning aside to Drayton's did not invalidate that claim. The real point was that Franks had no special time for meals on that day, but had to get them when

and where he could. This attempt to get a meal was "reasonably incidental to his employment"; he was getting a meal in the hours of his duty and was not making a definite break. Continuing, Mr Hunter said that at a later date Messrs C. E. Baldwin, president of the New Zealand Workers' Union, and A. J. Hamilton visited James Curragh and asked whether Franks was acting under his directions and guidance at the time. Curragh .said that his son Bert knew more about it, and the letter, when called m, said that there were such directions, and a statement to that effect was signed by James Curragh. Baldwin made a definite arrangement to meet and accompany James Curragh to the offices of the insurance company. Curragh failed to keep his appointment, but Baldwin found him closeted with the manager of the insurance company, who said that Curragh had signed a statement to the effect that Franks was not acting in his employment at the time of his death, and had cleared the insurance company. Curragh had become a hostile witness. Baldwin gave evidence that Franks was a member of his union, and that in conversation James Curragh had admitted that something should be clone for his depeivlcnts. Curragh also said that on the day of the accident Fianks was in town with his son Bert and a man named Kelly, assisting them with the machinery. He also .-aid that Franks had gone to town to pay some money, but was away from Bert Curragh and Kelly for about 10 minutes. Further evidence was given by John Reginald Kissel, motor mechanic, who said that Franks was one of the men who arrived with parts of a threshing mill at Bowman's on April 4. Onus of Proof This closed the case for the plaintiff. Mr Cuthbcrt submitted that a prima facie case had not been established. The plaintiff had not discharged the onus of proof that the accident to Franks had arisen out of and in the course of his employment. The oral statements and the written statements must be considered together. The circumstances were such as to deprive the documents of value as evidence or as admission. He submitted that there was nothing before the court to prove that Franks met his death while acting in the scope of his employment. His Honour said that it had to be considered whether Franks, when he returned to Sockburn and took possession of the motor-cycle again, was not returning in the same way that he had come out, as a free agent. The phrase in the signed admission, "acting under my instructions," might have a different meaning for a lawyer and a layman. While not suggesting that the case was a strong one, he did not say that there was no case at all. William Strathmore Kelly, lorrydriver at Halswell, said that Bert Curragh was the driver of the mill and a first-class mechanic; it was his duty to go along with the parts for repair. Franks with others had assisted in dismantling the mill at Waddington, and had come with him on the lorry into Templeton. He had no idea that Franks was doing anything connected with his employer's business. In Christchureh Bert Curragh, Franks, and he lunched together, and Franks left them for some 20 minutes at the end of lunch to use the telephone, and later in the day he was away from them for the same length of time transacting some business. They left Christchureh some time after 5 p.m., buying on the way a shilling's worth of fish and chips each, and also having one or two drinks. At Sockburn Franks picked up his motor-cycle, and passed the lorry half way to Templeton. He and Bert Curragh and Franks met outside the netrol bowser. Curragh said: "Will you call in at my place for tea?" Witness did not accept the invitation, and Franks said, "I will go round to Drayton and have a bit of tea with him and fetch him up to the yard." Curragh then said that he had already been round to Drayton and told him to go to the yard, and that the lorry would be leaving cbout 8 p.m. Franks replied: "Oh, well, I'll go round, anyway." Curragh then left in his car, witness also leavi ig immediately. Further evidence was given by Frank Mitchell, from whom the motorbicycle was borrowed. Herbert James Curragh, an employee of the company, said that his father came to Waddington on the night the mill broke down, and arranged for what was to be done. The men understood • that there would no work on the following day. Franks said he would come in with them, as he had business in town. Witness gave him no instructions to do so, and did not expect him to, as there was nothing useful he could do. Next morning Franks said his business had to do with his house at Woolston. When Franks asked for the motorcycle and left Templeton on it witness did not expect to see him again that day. Actually, he encountered him on the way to Sockburn, when he was having trouble with his machine. Later in the day Franks admitted that he had no driving license, and for that reason went to Christchureh in the lorry. Cross-examined on the signing of the document, witness denied remarking whether his father should sign or not. He did not see its real point until later. Employer's Evidence James Curragh said that no purpose could be served in having Franks with the machinery when it was being repaired. When Baldwin and Hamilton visited him, Baldwin asked questions on Franks's service and details of the

day of his death. He pressed witness to sign the statement, which he was reluctant to do. Baldwin assured him it was all right, as he only wanted something as proof to his union that he had been active in the matter. Witness objected to the statement as perhaps meaning that he had instructed Franks to run into the train. He thought it really meant nothing more than that Franks was one of his employees. Cross-examined, witness admitted having paid insurance for many years, and, as a threshing-mill owner for a long time, having been called as expert witness in a compensation claim. Mr Hunter suggested that witness must have realised the implications of the document he signed. His Honour, in giving judgment for the defendant, without costs, said that the case was purely a question of fact, and there was no use discussing legal points. It had to be decided whether Franks was at Templeton, at the time when he met his death, in pursuance of the duty owed to his employer. There was not the faintest scrap of evidence that Franks went to Drayton's in pursuance of any duty or on any order received from Bert Curragh.