LAW REPORTS.

Dominion, Volume 1, Issue 131, 26 February 1908, Page 4

LAW REPORTS.

SUPREME COURT.

CIYIL SITTINGS,

/ A WORKMAN'S FALL,

1 CLAIM FOR £1000 DAMAGES. JURY AWARD PLAINTIFF £500. NOTICE OF APPEAL GIVEN. 'Tho civil sittings.,of .tho Supremo Court wero resumed yesterday morning, His Honour Mr. Justice Chapman taking liis seat at 10.30 o'clock. Tho "case sot down for hearing was that between Hobcr Brown and Heenan and Froudo, Ltd., a claim for damages 'in respect of personal injuries., Mr. Skerrettj' Iv.C. (with him Mr. Ostler) appenred for the plaintiff, and Mr. Menteath for tho defendants. Tho following jury was empanelled:— Messrs. J. Embury A. Garrett, J. Hay, T. C. Bell,' It. H. Parrant, W. G. Cross, J. Cottroll, E. .W. P. Pcarce, W. Campbell, A. E. Aldred, It. Holdsworth, and F. Carter. . 1 'The statement of claim sot forth that plaintiff; was,-oil the date ill question, employed as a labourer by defendants at tho new destructor on Te Aro foreshore. In the course of his work he was required to stand upon a cross beam, or strut, in order to perform certain' work. This strut was, to tho-knowledge of'defendants, used and was 'tho only support availablo to plaintiff and otherworkmen l for standing on for the performance of the work which was required to birdono.' Originally', tho, strut' was.: lashed with a 1 ropo, which was leaving it ■in an nrisafo".condition. ".Whilst plaintiff was so:employed the -strut gave way, precipitating, him'to- tho ground. / Jn,' conscqnoqce, plaintiff- sustained a broken'' logs-and ankle, and was'.otherwise jsovercly injured and shaken. For a second cause of action plaintiff ■ alleged that theMnjuries. were-sustained by reason of a defect in tho condition of tho ways, works, and plant connected with tho business of defendants,- '.which defects arose owing to the negligence'of''tho'defendants or some-person in their service.. Particular dofects wero -as follow That' tlie beams used as a scaffold were defective in that tho same were without proper fastenings, and defendants, had -failed -to, provide other and sufficient!scaffolds.or,.other ways and meansi for the uso. of, their workmen. For a i third cause of action plaintiff alleged that ho" met with tlie accident'by reason of the noglect of Thomas C. O. Chant, '.defendants' superintendent;. and Edward Taylor, dofondants' foreman. - Plaintiff claimed, in respect of'the first causo of action tho sum of _ £1000,, and in respect of tho second and third alternative causes of action the sum of £500.

statemoufc'of dofcnco set forth that plaintiff was nob' employed as a labourer, but as a fitter's labourer, and was engaged m thafi capacity in conseqilenco of representations that lie h(\d been a locoinotive driver and. a seaman,, and was used'to engineers' tools'and generally to. work in'connection with machinery. If it wero proved that .-plaintiff/ or other workmen 'employed by defendants,. used 'tho.; strut' in- question, for tho purpose of standing upon,'such user i, was unknown to defendants, and could not 'nave'been anticipated, by: defendants, as the strut was not. adapted to, or convenient for, the purposo, 'and it bad been designed for the aole purposo of. retaining an iron column in position, as plaintiff well know, and defendants had,, to. the knowledge of' plaiutiff,provided other amply sufficient moans*: for' the .purpose ,of . ; standing >upon in order to onable plaintiff, to : perform the work ho was required to- do. It was true that the strut in. question .bad, previous to tho dato of the . been . lashed • with a rope, which laslurig was, liowever, for the temporary "purpose* of binding-tho/strut -to an iron column until tho column was otherwise secured, and defendants', alleged further/that tho lashing was; removed-. without. 1 their knowledge, but tho removal iwas ( known to plaintiff. Defendants denied that'they knew tho strut bad been, used, or that it was that plaintiff should'mako' use; of tho .strut, and. further, that plaintiff know, a strut was not V scaffold or ; intended to bo used in tho performance of any Work by plaintiff. The strut - was' perfectly' secure for the ' purpose for which it was intended .to be used. Tho injuries plaintiff received were, it ...was : alleged, the result of his own negligence and rashness. For. a second defence defendants submitted that if plaintiff sustained injuries as alleged, such,■ neglect "br'.default was committed by someone in the course of his/common employment' and without tho knowledge of 'defendants; -As to>plaintiff's second caiiso of action,' 1 defendants said the injuries sustained'by plaintiff' were due solely to his own carelessness or neglect. As to the third cause of ,action, defendants denied that either the defendants or Chant °, r Ta yl® r srerc5 rerc guilty, of negligence or gavo any directions' which resulted in injury to plaintiff/

CASE FdR THE PLAINTIFF. Mr..Skerrottv.iii opening tho.ease for tho plaintiff, said that the action' was brought by a servant against his masters for damages in respect of injuries received in consequence of an" insufficiency of appliances. At common Jaw plaintiff was. entitled'-'to such damages as the jury might deem adequate, but upon .the counts which were brought under, tho 'Employers' Liability Act the'jury was restricted, except under exceptional conditions, to giving not more than tho averago wages during a period of three yeni's, or at ■ most £SUO. Defendants, it was submitted, failed.to provide.proper appliances to enablo workmen to perform work at a height , above the ground, and permitted their men, including plaintiff, to use tho struts, which were designed for another' purpose, to enablo them to perform certain' work. Defendants, were tho contractors in connection with tho, erection of the machinery, at the now destructor. . Soma ..heavy machinery,weighing at least ten tons,: had to be placed above the level of tho grouiid, and some of the workmen had to perform, duties at some height. Evidence .would bo given to show that thero. was an extraordinary scarcity of ladders, ropes, and other appliances on the job. _ In order to perform \certain work plaintiff and other workmen used struts to stand upon. The strut which gave way under plaintiff's weight ran fropi a brick wall to a pillar which supported > a boiler, and its object was to prevent lateral movement. Tho foreman, Taylor, ordered, plaintiff and a man named Jones to remove an iron-bark beam which' was suspended from the roof, and the accident happened whilst plaintiff was about to pass a, rope up to Jones. It had been denied, but plaintiff could establish, that both Taylor and Jones had stood on tho strut just prior to plaintiff gotting upon it. Tho strut in question had boen found to be a littlo short, and it had been wedged on tho top side. At one time tho strut had beou lashed, but tho rope had been removed by someone. It was the duty of employers to provide; proper appliances to •enable their workmen to perform their duties in safety.

Dr. • Jiwart, medical superintendent at tho ' hospital, gave evidence that plaintiff was admitted to tho institution on September 26. His right anklo was very much swollen, and there wore indications of a fracture. In addition, lie was suffering from a ruptured ligament and severe contusions. Tho' question of tho fracturo under the circumstances was not of spceial importance. Plaintiff would probably be ablo to work again in about six months. There-would'probably be some permanent weakness at-tho ankle. ' Cross-examined, witness stated that he did not think the injuries would interfere verv. much with plaintiff's earning capacitv. At tho end of a hard day ho would probably have somo pain. Plaintiff (sworn) stated that he was « married man, and <12 years, of age. Originally, ho was an A.8., and rose to tho position of sccond officer. Subsequently, in Argentina, ho was a locomot-ivo drivor and lirenian. .Ho went to work for plaintiffs on September 23 as a labourer at 9s. per day. Tliero was a scarcity of tackle on tho job, .and there wore no spare ladders. Previous

to tho dato of tho accident-, plaintiff had seen a couple of men walking over the struts. On tho dato of tho accident, plaintiff received an order from Mr. Taylor, tho foreman, to go with a man named Jones, a carpenter, to. send down -an iron-bark log suspended by chain slings from the cross-beams of tho roof. Jones climbed' up and reached tho crossbeams by passing over the strut in question. Taylor went up next and passed over ,tho strut in order to reach another strut-! oii tho same level. Plaintiff, who had first gone to another part of tho building for a piece of rope and an iron block, then climbed up on to the strut. After discussingwith Jones as to where a sling should be put', ho turned round and asked Taylor what' he thought. Before Taylor .could reply the strut gavo way, precipitating plaintiff s distanco of from 12 to 15 feet on to a stage previously used by bricklayers. There was no other availablo manner of getting to the place where he was required to perform the work. . .The ironbark log which they were sent to removo would weigh about-15 cwt. Plaintiff never slept for four days or nights after ho was admitted to tho hospital. His medical expenses had so far amounted to £15. -

Cross-examined, witness stated that tho strut, which was i < i ( or 4 x 6 and about six feet in length, rested almost horizontally The manner in which the log should bo sent down was left practically in his. hands. It was necessary for him to got. up to tho log, but, before hq could do so, the strut on which he was standing (which rested a few feet below the log) gave way.- • The strut was impro« perly secured.-. Dr. Faulko deposed that, on September 26, ho examined plaintiff's injuries, which consisted of enormous swelling of tho lower portion of'lthe leg, and torn ligaments. Witness was not prepared .to say. whether thero ■was a fracture. : A slight', operation and mas-sage-were needed, but tho movements.would, even then, bo deficient. • Plaintiff would'not, in his opinion, bo able to work for : twelve months. ■ • • ■•. ■■■ ; - : - Abraham Frederick Jones, carpenter,, deposed that he and others had' stood oil 'tho strut in the course of their work. Since tho accident anothor- st'rnt had given' way.. To a juror: There was, ly'shortage of appliances, and when a workman asked for any-' thing he was'told to get it wherever ho could find it.. ' . . ! , Cross-examined, witness'stated that tho ladders about at the time of the accident were ,in use, and wore not capable of being used/for the purpose for which plaintiff, required. Subsequent to. the accident witness saw a number of ladders under, a tarpaulin, but witness did not know previously that .they were there. Joseph Lube,'-labourer, stated he had stood upon the strut in question and had seen othors-standing upon it. . .There was a.-short-ago of ladders, block and tackle,' etc.,- on the job. ' ... .-

Cross-exatiiined, 1 witness stated thatj, -prior to ■ the accident,- he .did not : seo a suitablo ladder which was .available. !• / ■ Captain Bendall; master mariner and surveyor for Lloyd's' at Wellington, gave evidence that he had employed plaintiff from' time to time as foreman of. salvage operations and in tho work of preparing ships for survey —classes of work which required thoiexerciso of alertness and intelligence.' Plaintiff had f proved himself to, bo a very careful workman. John' Sherriff, labourer, deposed that- ho had stood with Jones on : the strut'in ques-, tion. They it in pursuance of-orders to perform certain work, and. Taylor saivy them there., • '. This concluded the caso for tho plaintiff. .' DEFENCE TO THE ACTION. ' • Mr. Men tea tli submitted'that the common law count should b'o struck out on the ground that plaintiff; had offered no evidenco charging defendants with any negligence, and the defonco of common'employment must provail," and therefore tfyere; was no case to go to the • jury on tho common law: counS. . His Honour: I shall reserve all.questions.' Lean"hardly'decide"that-pointra-t-this-stage. .; 'Mr, Menteath, in,opening the.c»so for.tho defence','-said'plaintiff 'Tras selected for the' particular job beOaiiso of Ijisspecialqualifica-: tions. Defendants had to place two boilers in position at the destructor, and in ; tho courso of -t-ho work. it'.Was'necessary., first-of all to place two -'columns . in position, and-there were temporarily': stayed by ' 6 x .4 struts placed 'horizontally but' ftt'- a; slight'vincline. Plaintiff on tho'dato of the. accident was told to pass up to . Jbpes,' -who , was loft, abovo him,, a light .rope, whieh-.Tfas' tb,~be)'used for 'the purpose of hauling'.up a-Heavy sling. In- ■ stead of coiling'the rope and heading it up in the ordinary way, • plairitifli: got up on to tho strut in 'question,- which was pnly 2ft. Gin.' above the placo where plaintiff, had.'just previously been. standing,:-' The strut;- -Which, was never intended to be ;'usod «'a/scaffold, was part of a of tho accident had been'in : existence: only twentytwo days, and therefore'plaintiff's that workmen , had stood on the strut timo and'again'for months was: untrue. - A mail, who; did such a thing as plaiiitiff had donb. must expect to,bp hurt. It. was not.reasonable to inspect a strut to bo always safe for' standing' upon. -Taylor never stood on any strut in tho.sonse of,resting his whole weight' on it. .The stmt in question was thero for tho purposo of . resisting pressure'at its'end.. Plaintiff jmust havo jumped oil the strut, and in so doihg caused the-strut t-o turn and bccomo dislodged.

Edward Taylor, foreman for defendants at the now destructor, deposed that by standing on the strut it'mado it almost impossible-for plaintiff' to pass up the rope. About 20ft. away thqre was a ladder,- which could-hare been used for;tho purpose whicliplaihtiff required without being, moved. : Witness! had? never stood on the strut in/question.. At the' time'of tho accidcnt witness-was'-not stand-' ' ing on a stnit at the samo height as the strut'on which'plaintiff'was standing.'.- If plaintiff had stoo<l cn tho.strut properly tho .effectwould h'nvo been to,have tightened it! Thero wore at lcast a dozen ladders available'at tho : time of tho accident, and therb was plenty'of-' ropo.and other gear on the job: .'Witness did not order l the lashing round tho strut'to bo' romoved and did not know that it had been removed. • • • - Cross-examined, .witness stated-that he hadseen Jones and 'Sherriff • st-andingi 'on the struts,' and that he had warnod :them- not to do so. 16 plaintiff had asked tho engineers for the use of a ladder he would have got one. Witness could not say if. any-ladder was over used in connection 'with the orection of shoots' or the lowering' of the h'oater.' Witness had had ; only general experience in connection' with ;the"flrection of heavy iron-work! ' . Henry'HaspweU;' chief engineer at the city pumping station,' statwl that : on- the. date lii queslibn ho inspected the struts, which' were in their proper position. He would not put liis whole weight on . a stmt at any time. Dr. Gilmer considered that, if plaintiff had sufficient treatment, he ought to be able to follow his occupation in six months' time, r Dr. Herbert was of opinion that the ankle would" nover be as good as before. .Plaintiff should bo able to resume worli in six months. 1 George'.'Gilhaia,'.an'; assistant, George Seager, shipbuilder,,.:arid 'enginoer, Hiram Ashcroft; blacksmith, Harrv F. Ashcroft, fitter, Albert Edward Carpenter, fitter, and Joseph. Burns, , fitter—all or whom .were ongaged on works.in connection with the destructor, at evidence'relating principally to "'-.tho-appliances on the job.

William H;. Morten, City Engineer, stated that tho struts wero properly secured for the purposo' for which they wore intended. ' Thomas.C.'D. Chant, C.E., superintendent engineer for defendants-in New Zealand, deposed that ho had been responsible for part of the design dnd the whole of the'erection of tho works. Ho.never tho men standing, on the struts, and had htiard that any of them did so. His men had at their disposal lit least four.'woodcnMnd fourteen iron ladders. • . . M' This concluded the case for tho de'fonce Counsel having addressed the jury His Honour'summed up. '; ,< ' -i ■ The jury, -which retired at 11.10, Returned at 12.25 this morning- with a verdict for plaintiff.'for £GOO. • ° r Judgment was- entered accordinglyf "with costs, witnesses' expenses, and un allowance of six guineas for second .counsel. •• ,1 b i\lr. Menteath gave 'notice..that he'44ild move to have judgment 'get asido on Tiho ground .that ,'tlio damages awarded werJ. in escoss of the maximum amount allowed ttndcr tho Employers', Liability Act, aud tliat thcro waß no, liability on tho part of Mefendants at common law. ■ Tho jury was then discharged.