JUDGMENT FOR CROWN

Press, Volume LXXXIX, Issue 27040, 15 May 1953, Page 6

JUDGMENT FOR CROWN

WIDOW’S CLAIM FOR DAMAGES

PLAINTIFF OFFERS NO EVIDENCE

Judgment for the Crown was entered by Mr Justice Northcroft in the Supreme Court yesterday on a claim by Hina Patricia O'Connor, a widow, for £5552 damages for the death of her husband, Leonard Wenzel O’Connor, a crane driver, employed by the Railways Department. The husband died on September 21, 1952, as the result of a fall in a railways goods shed at Christchurch. His Honour also gave the Crown judgment for costs according to scale on all matters except the costs of trial of the action, which would have been £202, but for which he allowed 50 guineas. He said he would give a certificate as to the matters under the Compensation Act. Mr B. A. Barter, who appeared for Mrs O’Connor, said it was decided on Tuesday not to proceed with the action for damages at common law and, there being £2050 worker’s compensation involved, the question of how the common law action could be disposed of had tp be decided. On the authorities, if a plaintiff filed a discontinuance of an action or elected to be non-suited that did not give the Supreme Court jurisdiction to deal with the question of compensation. Under Section 52 of the Workers’ Compensation Act, his Honour was asked to fix the compensation, which had been agreed upon, and issue a certificate after deducting the costs to which the Crown was entitled to up to Tuesday. “I consent to the action at common law being dismissed on the ground Of the failure Of the plaintiff to tender evidence. I ask the Court to fix the compensation, less costs, and a motion will be filed dealing with the disposal of the fund among the widow and children,” said Mr Barrer. The only point that he and counsel for the Crown were not able to agree upon was the question of costs. He was prepared to concede that the Crown was entitled to costs for filing the defence, preparing for trial'and appearing on a dismissal, but nothing further. Counsel for Crown Mr A. W. Brown, for the Crown, said that costs were not the only question on which there was disagreement. Mr Barrer did inform him on Tuesday that he was not going on with the claim. This was a claim for a large amount and there were serious allegations of negligence against the Railways Department and that there was a negligent system of work in the goods shed at Christchurch. The Crown was entitled to have judgment entered in its favour if no evidence was given by the plaintiff, “Mr Barter was informed on more than one occasion of the alternatives open to him and was told that he and his client ran the risk of incurring considerably more costs than otherwise would have been incurred,” said Mr Brown. “We informed him there was no doubt about the amount of compensation, £2050, payable under the Workers’ Compensation Act and, if it had not been for this present action, the amount would have been paid months ago. “I would not think of asking your Honour for costs of a trial/ though technically I am entitled to them,” said counsel “The writ was filed on March 23. A defence was filed and full preparations were made for a trial. There was also long correspondence with the Crown law office until it was decided that no offer would be; made by the Crown in settlement of the claim and that the claim would be contested. On a triaK if the plaintiff lost her case, costs would have been £202; bi?t I would not think of asking for that. I ask the Court to. fix something between the 12 guineas' costs as. on a dismissal and ..the trial costs. I also ask for judgment for the Crown. Your Honour, with the consent of the Crown, can fix the amount of costs and I place myself entirely in the hands of the Court.” . Mr Barrer asked the Court to dismiss the action on the ground that no evidence was to be tendered. His Honour said he had no authority to dismiss it on that ground. It Would mean giving judgment for the defendant. ■