RAILWAYS NOT INDEMNIFIED

Press, Volume XCIX, Issue 29352, 3 November 1960, Page 10

RAILWAYS NOT INDEMNIFIED

Damages Claim Judgment Judgment against the AttorneyGenerel. through the Railways Department, has been given by Mr Justice Haslam in a reserved decision on an action between the Railways Department and W. G. Uaylor and Company, Ltd., ptaihbers, over payment of damages awarded against the department after the death of a railway employee in a level crossing accident at Lyttelton on April 17, 1958. The ..railways employee, Leo Desmond Crowe, was killed while travelling on the cowcatcher of a locomotive which collided with a truck owned by Taylor and Company and driven by one of the company’s employees. Grace Crowe, widow of Leo Desmond Crowe, brought a claim for damages against Taylor and Company, first defendant, and the Railways Department, second defendant The claim . was heard before his Honour in September, 1959, and the jury awarded Mrs Crowe £9OOO damages, finding Taylor and Company 75 per cent, and the Railways Department 25 per cent to blame for the accident The Railways Department paid £2250 as its share of damages, without prejudice, but sought to recover this amount from Taylor and Company on the ground that the department was indemnified from all claims for damages by Taylor and Company. On September 28 and 29, last, his Honour heard both parties in this dispute. Mr E. S. Bowie, with him Mr P. G. S. Penlington, appeared for Taylor and Company. Mr P. T. Mahon, with him Mr C. M. Roper,, appeared for the Attorney-General. Terms of Permission In his reserved judgment, his Honour said the Railways Department claimed that Taylor and Company’s truck involved in the accident was not entitled to pass over the level crossing subject only to express permission, which was granted by the department. But this permission was given, the department claimed, only in consideration of Taylor and Company giving full indemnity for any accident or injury arising directly or indirectly, out of such permission. The department relied exclusively on a document giving full indemnity to the Crown (Railways Department) and Lyttelton Harbour Board and signed by R. J. Paulger, an employee of Taylor and Company. His Honour said that Mr Mahon did not suggest that Paulger could be shown to have the authority of Taylor and Company in signing the form of indemnity Paulger was under 21 and only an apprentice at the time.

He said Mr Mahon had not proved the indemnity was binding upon Taylor and Company. “Clearly the Railways Department could be faced with liability arising from circumstances other than negligence of their own employees, and the Harbour Board (on whose land the railway crossing is) could also be called to meet heavy claims by its staff under the Workers’ Compensation Act because of an accident arising from the presence of Taylor and Company’s vehicle. “Whatever the extent of this indemnity, I conclude that it does not cover the consequences of negligence of the servants of either the Railways Department or Harbour Board. Therefore, there will be judgment for Taylor and Company.” His Honour ordered that Taylor and Company recover costs of £7B 15s, and disbursements, against the Railways Department.