Supreme Court £6332 AWARDED FOR BACK INJURY

Press, Volume CI, Issue 29778, 22 March 1962, Page 18

Supreme Court £6332 AWARDED FOR BACK INJURY

Damages of £6332 17s 9d were awarded by a jury in the Supreme Court last evening to Thomas Andrew Clare, aged 58, a labourer, against his former employer, the Wilkins and Davies Construction Company. Ltd. The plaintiff had claimed £7500 general damages and £1712 7s 9d special damages from the company. The claim arose from injuries which, the plaintiff suffered on October 7, 1959, when a wooden maul handle broke during reinforcing work on the sides of a sewer excavation at the intersection of Moorhouse avenue and Colombo street. The plaintiff, who was standing in the trench below the person wielding the maul, was struck in the back by the maul head.

On the issues put to it the jury found the defendant not negligent in permitting the use of the maul and handle which was known or ought to have been known to the defendant to be likely to break under the strain which it was being put. The jury found the defendant negligent in failing to provide a shield for the protection of the plaintiff while working underneath. It awarded the plaintiff £4620 10s general damages, and special damages as claimed.

Mr Justice Richmond gave judgment for the plaintiff for the amount awarded, with costs. Safety Recommendation The jury, which deliberated tor three hours 10 minutes, added a rider that the Court recommend to the Department of Labour that regulations enforcing the use of a shield for the protection of workmen working under similar conditions as the plaintiff be considered by the department.

His Honour said the recommendation would be passed on to the department. The hearing of the action occupied three days. Mr R. J. de Goldi appeared for the plaintiff, and Mr B. McClelland, with him Mr A. D. Hol land, for the defendant. The last witness for ths defence, William David Graham, said he was foreman of the gang at the time of the accident, and was using the maul to drive a timber sheathing to reinforce the wall of the trench. The Plaintiff was in the trench holding the foot of the timber in place while it was being struck.

Graham said he saw no defect in the handle before it broke. It was common to use mauls for sheathing work He had never known of slats of timber being placed over the top of a trench to protect the workman below, he said. Sewer excavation and other similar work was inspected by the Department of Labour, and he had never known the department to require such protection measures.

During cross-examination, Graham said there was always an element of danger wherever hammering with’ a maul was being carried out Mr de Goldi: Was this danger not heightened because of the number of handles broken during the previous week? The witness: No, the handlies beforehand ’ broke mainly through misuse. Surely, knowing that they could break, the plaintiff was obviously in danger down below and in the line of fall’ —Yes. Would that not have called for some protective measures?—Yes. if there had been occasions previously of maul heads falling down into excavations. Graham said the ciroum-

stances did not indicate that some precautions should have been taken, otherwise he would have taken them.

Further questioned. Graham said that for no expense and no trouble the danger to the workmen below could have been completely removed by providing slats of wood over the top of the trench at the point where the timber was being driven into the ground. The warning he shouted would not have given the plaintiff time to avoid the maul. Counsels’ Addresses In his final address, Mr McClelland submitted there was no negligence by the defendant. The company could not reasonably have taken further steps to prevent the accident. The foreman, Graham, found nothing to indicate that the maul handle was defective. The defendant was also not negligent in failing to provide a shield over the plaintiff, as evidence clearly showed that it was not usual for contractors to provide such shields.

Mr McClelland said evidence also showed that the plaintiff was in an advanced stage of hardening of the arteries when the accident occurred. The clotting which occurred in hie main artery nine weeks after the accident was likely to occur whether the plaintiff had this accident or not.

Mr de Goldi said that Graham had previous knowledge of maul handles breaking while this type of work was being carried out. The breakages screamed out for protective measures to be provided, but this was not done. Tiie defendant should have foreseen that the plaintiff could have been injured, particularly because of the number of handles which had broken before the accident. Mr de Goldi submitted that there was ample evidence pointing to the probability that the blow to the plaintiff's back caused or materially contributed to the arterial troubles which he suffered shortly after the accident, and which he still suffered.