BOTH PARTIES NEGLIGENT

Press, Volume LXXXV, Issue 25739, 26 February 1949, Page 2

BOTH PARTIES NEGLIGENT

JURY’S FINDING IN DAMAGES CLAIM After a retirement of an hour and a half a jury in the Supreme Court yesterday assessed the damages for injuries suffered by Ernest Jones, a freezing worker, at £6OO, but they also found that both the plaintiff and the defendant, Thomas Borthwick and Sons (Australasia), Ltd., were guilty of negligence and that the amount should be reduced by 25 per cent.

Counsel for the defence asked leave fo move for a non-suit or a new trial, and Mr Justice Northcroft adjourned the matter until Thursday. Jones had claimed £l5OO as general damages for injuries to his right hand, received when using a "backing down” knife while he was employed as a boner at the defendant company’s works. He claimed that the accident was caused by the negligence of the defendant. in providing a knife which it knew to be unsafe and permitting its use after It had been warned of the danger. Mr B. A. Barrer and Mr H. W. Thompson appeared for the plaintiff, and Mr A. W. Brown and Mr W. K. L. Dougall for the defendant company. Mr Brown, addressing the jury yesterday, said it was admitted there had been an accident and Jones was injured. The defence submitted that the knife was not unduly dangerous for the work. AH knives were dangerous and had to be used with care. The defence denied that any warning that the knife was dangerous was given at any time by any of the men at the works. IJnthr the Workers Compensation Act an . injured worker must get compensation and that would happen in this case, but the law was that if an employer was negligent he must pay beyond the compensation scale. It would be wrong and unjust, however, for an innocent employer to have to pay damages. In this case the defendant company and its staff were innocent of any negligence. Some implements, such as lawnmowers. axes, carving knives, razors, and even pen knives, were inherently dangerous, but if any member of the jury employed a man to do a day’s gardening work and that man, in oiling the lawnmower, turned the blades ’and cut off a finger, surely his employer should not be penalised. The knife in question was used at the works for two years before the accident to Jones, and no complaint was made. If Jones had found it unsafe he would have only had to go to his union and. if his complaint was thought justified, the union would have promptly ruled the knife out and the company would have given way. Further, there was no compulsion on Jones to use this particular type of knife, and he could have used another one if it suited him better. If a person voluntarily undertook a risk he had to take the consequences if there was an accident.

Mr Brown said Jones voluntarily undertook the risk of using the knife and went for a long period without an accident. He was the author of his own misfortune. The accident was due to the plaintiff's negligence in not keeping, a proper grip on the knife. Though the plaintiff was ruled out as a boner, for which he earned £lO a week, there were other occupations open tu him, for he was only 34 years of age. He was now getting £8 a week as a labourer at the works. His loss was not anywhere near the amount claimed. He had a stiff little finger and the next finger was partly stiff. Counsel for Plaintiff Mr Barrer said it was correct that the plaintiff would get compensation, but only if the jury awarded him no damages. If the jury did award him damages, that was all he would get. The evidence showed that 4000 pigs had been “backed down” with the two-edged knife in question and hundreds of thousands with a 10-inch knife. In the latter case there had been no accidents yet; with the twoedged knife there had been a slight accident to a man Price and the more serious one to the plaintiff, so that was not a good record. A master was bound to take all precautions for the safety of his servants. The knife was made by the foreman at the works and, under New Zealand law. a company was responsible for the deeds of its servants. The evidence of experts was that the knife was not a proper one for the job. The fendant company was bound to see to the safety of the appliances given to its workers, but a worker was not bound to see to their safety. The plaintiff accepted the ruling of his foreman on the use of the knife. There was no duty on the worker to make any complaint about an appliance he was called on to use. Counsel submitted that the jury would consider the knife was unsatisfactory and unsafe for the process for which it was intended. Its most important defect was that, being a two-edged knife, it had no guard. Further, it lacked proper balance. In the circumstances the claim for £l5OO was quite a modest one. The plaintiff could look forward to earning, for the rest of his working life, £2 a .week less than he earned before the accident. If he retired at 60 he had 26 years of work ahead of him and the loss in earnings would be £26oo—much more than the claim. The defence that the plaintiff voluntarily took tfe? risk of using the knife could not be held in this case, for a worker was entitled to use the tools supplied by his employer. There was evidence that the plaintiff did complain to his foreman. The plaintiff was entitled to recompense for the injury he sustained through the negligence of his employer. Mr Justice Northcroft, after summing up, put the following five issues to the jury, and the answers . were given as stated; — Was the defendant negligent?—Yes. Was the plaintiff negligent?—Yes. Did the plaintiff, with full knowledge of the danger, voluntarily assent to the risk of using the knife?—No. If both were negligent, by what amount should the damages for tne plaintiff be reduced?—2s per cent. Assess the total damages suffered by the plaintiff.—£6oo. Mr Barrer said that special damages had been agreed to as £llB 2s, and he moved for judgment for the plaintiff for £450 general damages and £BB Ils 6d special damages and costs. When Mr Brown asked leave to move for a non-suit or a new trial the matter was adjourned.